There is nothing in the policy of the law of Ohio to discourage es- tates in fee tail further than the rule laid down by the courts, that when language conveys equally well two different estates, that construc- tion will be placed upon it which will confer an estate in fee simple in preference to an estate in tail. Ib.
Where the language in the grant- ing and habendum clauses of a will is such that it creates an estate tail in the lands devised, an intention to create an estate in fee cannot be construed out of other clauses in the will unless such intention be clearly and unmistakably expressed. Ib. ESTOPPEL
Great particularity and precision should be observed in pleading an estoppel, leaving nothing to intend- ment. This rule is based upon the principle that an estoppel concludes a party from asserting the truth and all things essential to give the right to shut out the truth should affirmatively appear. Weyer V. Sager. 193
See also HIGHWAYS.
mony that she did sign it, unless attention was called to the matter in such a way as to call for an an- swer or statement. Hauser v. Assel. 336
It is competent to prove that the general reputation of the fireman, who was operating the engine, was that "he was a rough man with an engine," for the purpose of showing that the defendant had knowledge of such incompetency. C. & M. V. Ry. Co. v. Thompson. 326
Where it is sought to have the va- lidity of an ordinance or the suffi- ciency of the affidavit under the or- dinance determined, the ordinance should be brought into the record; for this purpose a reviewing court will not take judicial notice of the ordinance. Nelson v. Berea (Vil.).
The testimony of the daughter of the plaintiff in an action for per- sonal injuries that plaintiff, after reaching home, complained of his back and limb some time after the injury alleged, is not like a narra- tive of a past event or a statement of what plaintiff said, but is, in ef- fect, that he simply made some com- plaint or exclamation as to his back or limb, and is admissible only as evidence that plaintiff manifested by words that he was suffering. Cleveland City Ry. Co. v. Roebuck.
An instrument in writing contain- ing these terms: "Received of the Superior Mining Company thirty- five hundred dollars, being the amount in full for all royalties or amounts due, or to become due, from said mining company under the lease or contract made between Henry Seeman and J. S. Seiberling, dated April 13, 1887," is an instru- ment acknowledging the receipt of money and also a contract to the effect that the parties have come to a settlement of all matters of ac- count then existing between them, and have agreed upon the balance due or to become due from one to the other under said lease. Parol evidence tending to prove that cer- tain matters of account, then exist- ing under said lease, were not in- cluded in such settlement would contradict the writing in this re- spect, and is not admissible. See- man v. Mining Co. 206
In an action for damages for death resulting from injuries re- ceived by decedent while crossing a
EVIDENCE-Continued.
railroad, evidence that the deceased had crossed the track with his team before is incompetent to show that on a former occasion he had a nar- row escape from the same train and that he was habitually negligent; such evidence is not competent ex- cept for the purpose of showing his familiarity with the crossing. Balti- more & O. Rd. Co. v. Van Horn.
An opinion as to the speed of a train involves the ordinary ideas of time, space and motion and is with- in the common observation and ex- perience of men, and although the opinion of a man with large experi- ence in riding on trains or in run- ning them may be of greater weight than the ordinary witness, that fact only goes to the weight of the evi- dence and not to its competency. Ib.
Witnesses having no special knowledge or experience in the run- ning or management of railway trains, but having the ordinary, average familiarity with moving trains, are qualified to express an opinion, in an action for personal injuries where the speed of the train causing the injury is material, as te the rate at which it was moving. Ib.
In matters more within the com- mon observation and experience of men, non-experts may, in cases where it is not practicable to place before the jury all the primary facts upon which they are founded, state their opinions from such facts, where such opinions involve conclu- sions material to the subject of in- quiry.
In an action against a municipal corporation to recover for injuries sustained by falling upon a slippery sidewalk, evidence on the part of the plaintiff was properly excluded where the only negligence charged was that the city permitted ice and snow to accumulate on a sidewalk to such an extent that because of an inclination of two-eighths of an inch to the foot greater than that pro- vided for in its ordinance that the sidewalk became dangerous to pe- destrians. Stanberger v. Cleveland.
Evidence of the general reputa- tion of a person accused of a crime in the neighborhood in which both parties reside, is competent as tend- ing to establish knowledge of his
Where the petition in an action for personal injuries sets forth that plaintiff has been put to great ex- pense for nursing, medicines and medical attendance in connection with all other damages by him sus- tained, but does not set forth the precise amount thereof separately, evidence of the value of medical services is admissible, in the ab- sence of a motion to make such pe- tition more definite and certain in this particular. Toledo Elec. St. Ry. Co. v. Westenhuber. 22
Where the speed of a street car causing an injury is called in ques- tion, the opinions of persons observ- ing the movement of the car are competent, as relating to a matter of common knowledge, and especially where such persons appear to have made observations of the move- ments of similar cars. Ib.
Where several rules of a railway company, relative to the manage- ment of its trains, are introduced in evidence, some by one party and some by another, it is for the jury to determine from the facts which rules apply. Cleveland, C. C. & St. L. Ry. Co. v. Hudson. 661
Evidence, in an action for per- sonal injuries, in the nature of the results of an experiment with the same kind of a train at the same place and with a similar crew, is not demonstrative or controlling evi- dence, particularly where the con- ditions are not exactly the same. Ib.
It is competent for the foreman of a gang of section men to testify that the men, while at work on the track, were safe, or whether the ice in falling could have reached them. Such testimony is not objectionable as opinion evidence. Pittsburgh, Cin., Chic. & St. Louis Ry. Co. v. Moreland. 612
Where a witness has been exam- ined fully touching the facts in con- troversy, in case at bar, as to the danger from falling ice, a question, "Was there anything that you could know other than any other work- man there knew," was held to have been properly excluded.
The admission of incompetent evidence in a tria. to a jury, from the record of which it does not ap-
In an action against a street rail- way company for personal injuries sustained by a woman, evidence as to the number of children she has is incompetent and its admission for the purpose of showing not only that she had a family of children and that they were dependent upon her for support, is prejudicial, especially where there is nothing in the charge of the court to modify or retract the effect of this evidence upon the sympathy of the jury, but instead the jury were directed to consider all the evidence introduced, to con- sider all the circumstances and make a fair and reasonable com- pensation for the injury sustained.
The expert opinion of a physician in an action for personal injuries, as to the probable result or the per- manency of injuries received, is competent and need not be confined simply to showing that such results followed more often than otherwise. It is also competent to show that certain injuries are always perma- nent, or, if sometimes permanent and sometimes not, that also may be shown; all are proper matters for the jury. Thus the testimony of a physician that "such an injury might produce very disastrous ef- fects-I should fear it," is not im- proper.
A non-professional witness who has had opportunities to observe a sick or injured person, may give in evidence his opinion of the condi- tion of such person in respect to his being weak and helpless, and of the degree of suffering which he appar- ently endured, provided such evi- dence is founded on his own obser- vation of the person to whom his evidence relates and is limited to the time that the person was under the observation of the witness. Ib. Where several rules of a railway company, relative to the manage- ment of trains, are introduced in evidence, some by one party and some by another, and the meaning is not questioned, the trial judge is not called upon tc construe them or to tell the jury what the rules of the
company are. Cleveland, C. C. & St. L. Ry. Co. v. Hudson. 661
The president of the coal com- pany, in such action, should not have been required to answer an in- quiry as to whether or not the wages paid to dock laborers was the result of a combination of the coal com- panies, where such evidence could have no bearing on the issues of the case and might be prejudicial to the coal company with the jury. Selzer V. Coal Co. 787
A non-expert witness should not be permittd to answer questions con- cerning which he has no more knowledge than men of ordinary in- formation and intelligence.
An employee of a coal company, who has no knowledge of machinery and appliances for loading vessels, except that acquired by seven or eight years work on the dock, if competent, in an action for personal injuries resulting from coal being prematurely dumped, to testify that "the spring was too weak to hold the bucket" should not have been permitted to add "and that is the reason that it dumped, and at least the latter part of the answer, not called for by the question, should have been stricken out. Ib.
Statements of witnesses as to the time in which electric cars have been stopped, though at other times and other parts of the line, are statements of fact and are com- petent as evidence bearing on the question, in an action for personal injuries resulting from a collision between an electric car and a horse and buggy, as to the time in which the car could have stopped at the time of the accident. Cleveland & E. Ry. v. Hunter.
Where it appears, in that at the time the noticed the peril of the plaintiff, he had ample time to stop the car, the testimony referred to in the pre- ceding paragraphs, whether compe- tent or incompetent, was not preju- dicial to defendant. Ib.
It does not require an expert to determine, when riding in a car, whether the speed has been slack- ened. Ib.
In an action against a railroad company for injuries to a brakeman while passing under a bridge, by colliding with the upper portion thereof, under the rule in Coal and Car Co. v. Norman, 49 Ohio St., 598, the plaintiff is required to allege
The testimony of non-expert wit- nesses as to condition of health and as to suffering, pain, etc., is limited to complainants of present suffering under which one is laboring and not to a history of the past. Ib.
The fact that it is so easy to sim- ulate pain, aches and diseases, and making complaints to be afterwards introduced in evidence to show the extent of injury and its recovery, there should be no extension of the rule admitting opinion evidence in personal injury cases, especially where the declarations were made long after the injury, and the testi- mony thereof comes from the wife of the person injured with no other person present at the time they were made. Ib.
A non-expert medical witness may testify as to apparent suffering and pain as complained of by a party while under his observation, but is not competent to give the cause or character of the disease, nor evi- dence as to what pain was suffered.
Where the only allegations in plaintiff's petition in an action against a railway company for per- sonal injuries sustained by a brake- man were that the defendant care- lessly and negligently maintained and used an overhead bridge in such condition that it was too low to al- low a man of ordinary height upon the top of a refrigerator car to pass through without being struck by the upper part thereof, evidence that there was no signal or notice of warning of such condition is incom- petent; such testimony is not ad- missible unless the omission to pro- vide signals is alleged as a ground of recovery, or unless the plaintiff's own testimony raised a presumption of negligence on his part, in which case it might be admitted to rebut that presumption.
An unrecorded map of lands through which a railroad passes, showing the location of the railroad and availability thereof for division into lots, is admissible in an action to compel appropriation, for the pur- pose of showing in what manner it might be divided and what may be
done as to divisions. W. Ry. Co. v. Perkins. Parol evidence as to the contents of a notice of property to be sold at auction is inadmissible unless it ap- pears that the notice itself is not available. Andrews v. Watson. 686
In an action to recover damages for failure to accept and pay for certain shares of stock sold at auc- tion, the seller claiming that forty shares were sold and the purchaser claiming to have bought only ten shares, evidence of directions given by the seller to the auctioneer as to the sale of the stock is incompetent unless it appears that such direc- tions were given in the presence and hearing of the purchaser. Ib.
Where the purchaser, in a suit to recover damages for failure to ac- cept and pay for the forty shares, claimed that he purchased only ten shares, the fact that the son, owning but ten shares, met the purchaser and received his check payable to the father for ten shares, with the understanding that ten shares was all that the buyer purchased, and the fact that the father received the check, indorsed the same and turned it over to the son, are not competent, where it does not appear that the father knew or was informed of the understanding with the son, to show that the father released the pur- chaser from accepting the balance of the stock. Andrews v. Watson. 692
Evidence of the relative aistances of water pipes from the track of a railroad, the measurements of which were taken more than four years after the happening of an accident, alleged to have been caused by rea- son of a water pipe being too close to the track, is too remote to show negligence in placing the water pipe in question nearer than the others, unless evidence is offered to show that all had stood in their respective positions during all this period and were in precisely the same places as when the accident occurred, and especially where it appears that the railroad company had no plan laid out for the placing of such pipes, one of which, at least, was nearer than the one causing the injury, Lake Shore & M. S. Ry. Co. v. God- win. 537
Evidence of a change in appli- ances, machinery or construction, claimed to be dangerous, made after an accident, to be competent as an
Evidence-Executors and Administrators.
admission of dangerous character, must relate to a period within a rea- sonable time after the accident. Ib.
The admission of evidence, that a defendant changed a dangerous ap- pliance immediately alter an acci- dent is upon the principle of cause and effect; that is, that knowledge of the accident having come to the defendant, that he knew from that fact that the place was dangerous; and that he had to remedy it and that he immediately did so; and as such, tends to prove an admission of its dangerous character. Io. Where the answer to a question was partly proper and partly im proper, a motion to exclude the whole answer should be overruled. Ib.
A non-expert medical witness may answer a question as to the condi- tion of a person injured, as to the suffering and pain and as to strength and ability to work; and no objection can be made to the response: "He complained all the time of pain through his kid- neys and looked pale; he did not look like a well man and did not move around like a man that had any energy all the time he worked for me," but a response, "I could not use him on inside work nor on blinds before he would faint right away and have to quit; what the cause of it was is something I don't know," goes beyond the proper line of such testimony. Ib.
In an action for personal injuries, a non-expert witness may testify that plaintiff "was not able to work at all," but testimony of such wit- ness that "I did not consider him a well man, etc.," is not as to a fact but is in the nature of an opinion on the general result of his idea of the man and is improper. Ib.
See also CONCEALING STOLEN GOODS; DEEDS; MALICIOUS PROSECU TION; MASTER AND SERVANT; WIT NESSES; PARTNERSHIP; RAILROADS.
An executor in his official capacity is the proper party to bring an ac- tion for the recovery of certain funds belonging to his estate in the hands of a third person. Ward v. Ward. 59
An executor, or administrator under the circumstances stated. holds the property and asserts the rights in autre droit and courts should consider primarily the rights of the cestui que trust, though the rule might be otherwise if the ex- ecutor or administrator were en- deavoring to recover back in his own personal right. Ib.
Where an administrator entered into a contract with an attorney to prosecute a claim against a railway company for his decedent's death for a certain percentage of the amount recovered, in which contract nothing was said as to the nature of the liability, whether personal or as representative of the estate, and the administrator subsequently com- promised with the railway company, he is personally liable to the attor ney for the stipulated compensation. Armstrong v. Siddall.
A promise made by an adminis- trator to' pay an attorney as fees a certain percentage of the amount re- covered on a claim against a rail- road company for the death of his decedent, the latter dying intestate and without wife or children, is the creation of an original debt and is not a promise to pay decedent's debt. Such a contract is not, therefore, within the statute of frauds or re- quired to be in writing. Ib.
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