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Estates Tail-Evidence.

An estate in lands created by will
or deed which, by the granting
clause, would be an estate in fee
simple may be limited by the haben-
dum clause to an estate tail. Ib.

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.


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Testimony admissible for any pur-
pose should be allowed to go to the
jury under proper instructions and
it is not good ground for refusing to
receive it that it was not admissible
as proof of the substantive ground
of relief sought. Pennsylvania Co.
v. Mahoney.

There is no authority upon which
a reviewing court can consider evi-
dence which has been ruled out or
determined results upon issues
which might have been in the case
but which were not submitted to the

Evidence not competent, if ob-
jected to when admitted without ob-
jection, has its natural probative
effect. Thompson V. Ackerman.


In an action upon a promissory
note, the issue being as to whether
defendant signed the note, negative
testimony to the effect that defend-
ant never denied the signature can-
not be converted into positive testi-

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.

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.

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.
In an action for damages for
death resulting from injuries re-
ceived by decedent while crossing a


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character and standing on the part
of the accuser, to show malice in the
latter in an action for damages
Miles v. Salisbury.

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.

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.

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.

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.

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.

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-


pear that the jury disregarded it,
the presumption of law that prejudi-
cial error resulted against the
party against whom it was intro-
duced must prevail, and judgment
should be reversed therefor. Ash-
tabula Rapid Transit Co. v. Stephen-


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-

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.

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.

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. Ib.

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.

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 such case,
that at the time the motorman
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.

It does not require an expert to
determine. when riding in a car,
whether the speed has been slack-
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



and prove that he had no knowledge
of conditions by which he was in-
jured. Lake Shore & M. S. Ry. Co.
v. Beckwith.

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.

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

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. Pittsburgh &
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.

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-
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.

Where the answer to a question
was partly proper and partly im
proper, a motion to exclude the
whole answer should be overruled.


A non-expert medical witness may
answer a question as to the condi-
tion of a person injured,
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

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