or going to a seat, is not bound to look and listen to avoid dangers from passing or approaching cars. Hollingsworth v. Street Ry. Co. 100
A person riding a bicycle upon an electric railroad track in front of a moving car not twenty feet away, is guilty of such negligence as will defeat a recovery, and under such circumstances the negligence of both parties, if both are guilty, is concurrent. Cleveland, P. & E. Rd. Co. v. Nixon. 79
Where it appears that the driver of a loaded wagon attempted to cross a street railroad track when an approaching car was about two hundred feet distant, and that he could be seen by the motorman, and it also appears that the latter did not immediately slacken the speed of the car, but waited until very near the crossing before at- tempting to do so, and it further ap- pears that, under such circum- stances, the wagon moved so far across the track that only a rear wheel was caught by the car, it is obvious that the car might have been stopped by the exercise of rea- sonable diligence, and for injuries resulting from a failure to stop it the street railway company is lia- ble. Toledo Elec. St. Ry. Co. V. Westenhuber.
It is the duty of the driver of a loaded wagon about to cross street car tracks at a crossing. upon ob- serving the rapid approach of a street car, to take into considera- tion the fact that it can neither turn out, nor stop instantly, but if, upon such consideration, he enters upon the track when the car is so far away and approaching at such speed that, by the exercise of rea- sonable diligence, it can be stopped, he is not thereby guilty of negli gence. Ib.
A charge that "the ordinary care required on the part of either plaintiff or defendant, in order to be exempt from any legal conse- quences resulting from their conduct, is defined to be such care as prudent persons are accustomed to exercise under the peculiar circumstances of each case" is not a correct definition of ordinary care. The true rule is, that ordinary care or prudence is such care or prudence as persons of ordinary care usually exercise.
Ordinary care is that care which prudent persons, as a class, are ac- customed to use, but a charge, in an action for personal injuries, to the effect that if the jury ascer- tained that an ordinarily prudent person would act, under the same circumstances, as the plaintiff acted, this would be ordinary care, is erroneous. Prudent persons do not always act with care and a charge thus restricted, to an indi- vidual act, does not correctly state the rule. New York, L. E. & W. R. R. Co. v. Harber. 648 that a
Where it is understood woman in alighting from a passen- ger car was guilty of want of ordi- nary care in not using reasonable diligence to alight, yet if the serv- ants of the railway company knew she was alighting and started the train, whereby she was injured, she would be entitled to recover, but a charge presenting the two as proxi- mate causes, and that notwith- standing plaintiff might recover, would be erroueous.
Where a person is injured while riding on a wagon with another who attempts to cross a railroad in the face of an approaching train, and is wrecked, the negligence of the driver can not be imputed to such other person. Wheeling & Lake Erie R. R. Co. v. Suhrwiar.
The conduct of a man under such circumstances, or who finds himself before a quickly approaching train, must be considered in the light of the peril before him, of the state of mind that he must have been in, having not more than seven seconds at the most to determine what course to pursue to get out of dan- ger, the horse waxing slowly and the lines and whip in another man's hands, and the danger of getting off the wagon in view of the fact that the horse was likely to violently start, and if he did as a man of or- dinary care and prudence would have done, he is not guilty of con- tributory negligence, although he may not have done what was the best thing to do at the time. Ib.
Under the rule in Ohio, a person in the full enjoyment of his facul- ties, before attempting to pass over a known railroad crossing, unless there is some reasonable excuse for
not doing so, must look and listen for approaching trains, but it is not the rule of law in Ohio that one driving on a highway and approach- ing a railroad crossing should stop and look and listen. It may, how- ever, be a question for the jury to determine whether under the par- ticular circumstances of the case, ordinary care would require a per- son approaching a railroad crossing to stop as well as to look and listen Ib. for trains. See also CONTRACTS; HIGHWAYS; MUNICIPAL CORPORATIONS; RAIL ROADS; CHARGE TO JURY.
Where, in proceedings by a tele- graph company to appropriate the right to maintain a telegraph line along a railway right of way, the finding, on statutory preliminary questions, was made January 1900, a motion for a new trial was not filed until March 3, or forty-six days afterwards, is not within the time allowed by law. A subse- quent filing is of no avail and the bill of exceptions allowed April 23, 1900, was properly stricken from the files. Cleveland, C. C. & St. L. Ry. Co. v. Cable Co.
Section 5306, Rev. Stat., provid- ing that "the same court shall not grant more than one trial against the weight of the evidence against the same party in the same case,' is not binding in cases which arose prior to its enactment, but the court may be governed thereby as an expression of legislative will. Pittsburg, Cin., Chic. & St. Louis Ry. Co. v. Moreland. 612
Section 5306, Rev. Stat., provid- ing that "the same court shall not grant more than one new trial against the weight of the evidence against the same party in the same case," which, being passed after the cause of action arose, was not bind- ing on the court, but was followed as an expression of legislative will.
See also JUSTICES OF THE PEACE.
A notary public has power to is- sue a subpoena duces tecum and a failure to obey it constitutes con- tempt of court. Woods v. Altschul. 809 NOTICE-
Notice to an agent or servant of a corporation in respect to a matter over which he has control, is notice to the company, but it cannot be said that notice to a man whose business was to shovel snow off the track of a street railway, and who had nothing to do with the move- ment, control or management of a snow plow, which was left in the street, is notice to the company that horses had been frightened by it. Ashtabula Rapid Transit. Co. V. Stephenson.
See also BOARDS OF EQUALIZATION. NUISANCE-
The question, what is and what is not a public nuisance, must be judicial; and it is not competent to delegate its determination to a local legislative or administrative board. Deming v. Cleveland.
Neither the legislature nor a city council can make a stream of water a nuisance by simply declaring it so. Its character in that regard can only be established by legal pro- ceedings. And when in fact the stream is not a nuisance, no author- ity to remove or divert it is derived from an arbitrary order or ordi- nancé declaring it to be such. Ib.
The act of April 7, 1898 (93 O. L., 530), whereby any city of the second grade, first class (Cleve- land), is authorized to divert or change the course of any brook, stream, or non-navigable water course within such city which shall be found by the council to be dan- gerous to the inhabitants of and a menace to public health, is uncon- stitutional, in that it makes no pro- vision for compensation to riparian proprietors or for trial by jury or otherwise, in declaring such streams a nuisance.
The right of summary abatement of nuisances without judicial pro cess or pleadings existed at the com- mon law, and was not taken away by Art. 1, Sec. 19, of the constitu- tion, that the owner of property shall not be deprived of it without due process at law. Chicago & Erie Rd. Co. v. Keith. 208
The public and individuals, on the doctrine of self defense, have a right to abate a physical tangible nuisance summarily and without the intervention of judicial proceedings, but the act must be confined to the doing of what is necessary to ac- complish the abatement. Ib.
Where full, adequate and final damages for a nuisance and injury, substantial causing material and damages, as for unlawfully taking water from a water-power stream, cannot be recovered in a single ac- tion at law, and plaintiff would be obliged to maintain actions period- ically to recover for such injuries, and to commence an action every twenty-one years to prevent the ope- ration of adverse user against his rights, equity will take jurisdiction and grant the necessary relief with- out requiring plaintiff to first ex- haust his remedy at law. Holly.
See also GAS AND OIL Wells.
OFFICES AND OFFICERS-
A rule of a department of a city government requiring a member not to be guilty of conduct unbecoming an officer or a gentleman, or of con- duct in any manner prejudicial to the good reputation, order or dis- cipline of the department, is not unreasonable or invalid. State v. Hyman. 265
A rule of regulation forbidding an officer of the fire department of Cleveland from selling or assigning his salary or incurring or contract- ing debts or liabilities which he is unable or unwilling to pay, or ne- glecting or refusing to honorably discharge and promptly pay all in- debtedness, etc., if strictly enforced might work hardship in certain cases, but is not unreasonable or in- valid.
PARENT AND CHILD・
See also DIVORCE AND ALIMONY.
The order of the court permitting the withdrawal by the plaintiff, on his own motion and "without preju- dice to the plaintiff," of his claim for money received on certain prom- issory notes which, with other cred- its and goods once the property of his assignor, were in the possession of defendant, another creditor, was not prejudicial to the defendant, whatever effect the order may have upon any future litigation in regard to the notes withdrawn. Ib.
Where a railroad company is in the hands of receivers appointed by the court in another state, not for the benefit of creditors, nor because the company is insolvent, but for some reason of which this court is not aware, presumably some scheme relating to reorganization, the title and estate of the railroad being in the company, the company, not the receivers, is the proper party in an action to compel appropriation of lands to which the company has no title and upon which its road has been constructed. Pittsburgh & W. Ry. Co. v. Perkins. 676
Judgment having been rendered in favor of the guardian of an im- becile in an action against the lat- ter, the guardian is a necessary party to a proceeding to reverse the judgment, and where the time has
Unless the record in a partition suit shows that the commissioners have not acted in conformity to law or have acted, in .prejudice of the rights of any of the parties, or that the testimony taken clearly showed that the partition made was unfair or unequal, the order of common pleas confirming the partition will be affirmed. Kirby v. Kirby. 736 PARTNERSHIPS-
While the declarations of one member of a partnership, standing alone, will not prove the partner- ship, yet when a partnership, is prima facie established, the conduct
and acts of each are properly re- ceived in evidence to strengthen the presumption. Rogers v. Edmund. 291
In an action to recover money lost at gambling in margins against several persons alleged to be part- ners, it is not necessary, the allega- tions of partnership being denied, to show a strict technical partner- ship in order to recover, inasmuch as one who furnishes or helps to furnish, a telegraphic wire and in- strument, and market quotations, and has an interest in the sale of grain, stock, etc., on margins on the rise and fall of the market are carried on in violation of Sec. 6934, Rev. Stat.. 79 O. L., 118, is interested in the business within the meaning of Sec. 4271, Rev. Stat., and is liable to one whose money is lost in such transactions. Ib.
Statements or conduct of one or more of the associated parties or part owners cannot be received as evidence against others, having no knowledge of such statements or conduct. Baker v. Brennan & Co.
Partnerships-Physicians and Surgeons.
The fact that father and son, own- ing forty shares of stock in a fair association, the father owning thirty and the son owning ten shares, sold the same together, ten shares being put up at a time, with privilege to the purchaser of taking as many as desired, at a public auction held by the father, does not make them partners so that the declarations or acts of the son, unknown to the father, are binding upon the latter. Andrews v. Watson.
See also HUSBAND AND WIFE.
not be changed by the law of April, 1890, Sec. 2477, Rev. Stat., 87 0. L., 227 reducing the pension to $42.50 per month. Relator's rights, under such case, are under present exist- ing statutes. State v. Farley. 273 See also SCHOOLS.
PERSONAL PROPERTY- See DOWER.
PHYSICIANS AND SURGEONS-
The cause of action for malprac- tice, for the negligent performance of the contract, rests on negligence and is, therefore, in tort and not in contract. Tucker v. Gillette. 401
A physician is bound to use ordi- nary care and skill in the practice of his profession and it is his duty when he once enters upon the treat- ment of a patient to continue the treatment, with the exercise of such ordinary care and skill, until he has been discharged by the patient or has himself withdrawn from such service, after having given reason- able notice to the patient in order that another physician may be pro- cured. The character of his serv- ices and his relation to his patient are such that he is not permitted arbitrarily to quit the services with- out cause or reasonable notice.
The duty of a physician and sur- geon to continue in attendance upon a patient after the performance of a surgical operation until the per- son is cured of the operation or un- til his services are no longer re- quired is as incumbent upon him as the duty of exercising ordinary care and skill in the actual performance of the operation, and an action for malpractice does not accrue against him until the cure has been effected or until his attendance is no longer necessary. Ib.
The statute does not run against an action there for until the re lationship is ended or prior to the time when the physician announced that he would do nothing further.
Malpractice is the negligent per- formance by a physician of the du- ties which are devolved and in- cumbent upon him on account of his contractual relations with his patient. Ib.
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