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Negligence.

NEGLIGENCE-Continued.

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.
22

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.

Pittsburg, C. C. & St. L. Ry. Co. v.
Moreland.
604

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
Where it is understood that a
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.
Ib.

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.
809

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

Negligence-Nuisance.

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
for trains.
Ib.

See also CONTRACTS; HIGHWAYS;
MUNICIPAL CORPORATIONS; RAIL
ROADS; CHARGE TO JURY.

NEW TRIALS-

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 16,
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.
522

In prosecutions for the violations
of ordinances of a municipal corpo-
ration a mayor or a police court
may grant a new trial on the
grounds that the court of common
pleas may grant a new trial in
criminal cases. Germantown V.
Basore.
500

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
but
prior to its enactment,
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.
Ib.

See also JUSTICES OF THE PEACE.

NOTARY PUBLIC-

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.
Stephenson.
See also BOARDS OF EQUALIZATION.
NUISANCE-

V.
631

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.
198

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-
Ib.
nancé declaring it to be such.
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 or 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.
Ib.

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

NUISANCE-Continued.

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,
causing material and substantial
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. Turner v.
Holly.
738

See also GAS AND OIL WELLS.

Nuisance-Partics.

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.
Ib.

See also POWERS.

OPERATIVES—

See LIENS.

PARENT AND CHILD-

See also DIVORCE AND ALIMONY.

PARKS-

See APPROPRIATION.

PARTIES-

ment
Yates.

In a proceeding in mandamus, in-
volving the constitutionality of an
act relating to compensation of
county officers, brought by the
auditor of state as relator against a
county auditor alone under Secs.
166 and 1334, Rev. Stat., the probate
judge and clerk of courts are not
necessary or proper parties, their
rights not being barred by any judg-
rendered therein. State v.
298
Where whatever defense a trustee
in bankruptcy could have made if he
had been substituted for his bank-
rupt he was at liberty to make as a
defendant jointly with his bankrupt,
he cannot be said to have been
prejudiced by an order of court
making him a party defendant with
instead, of a substitute for the real
defendant, notwithstanding a ref-
eree in bankruptcy had allowed the
substitution upon an application to
litigate in the case the issues be-
tween the original parties to the ac-
tion. Simon v. Mooney.
73

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

Parties-Partnership.

passed in which such proceeding to
reverse can be prosecuted, the pro-
ceeding cannot be brought against
the administrator of such ward upon
his decease. Bradstreet v. Mettler.
808

Where the probate court has vol-
untarily entered an order which
may deprive the judge of such court
of fees that he might collect from
the fund in question, another court
is not authorized to question that
order at the instance of any party
not shown to be prejudiced thereby.
Reed v. Terhune.
829

See also BONDS; INJUNCTION;
LANDLORD AND TENANT.

PARTITION-

Under such circumstances the oc-
cupation of the premises by the hus-
band of one of the heirs, during her
lifetime, was not adverse. Water-
man v. Waterman.
798

Where a family, having inherited
certain real estate, by a mutual
agreement made an amicable parti-
tion, in which the heirs joined in
quitclaim deeds to each other, in
which deeds the names of the hus-
bands of the heirs were inserted
with the heirs, the heirs took title
by inheritance, the deeds and par-
tition proceedings being the means
adopted to sever the tenancy in
Ib.

common.

Such facts, the insertion of the
husbands' names being a mistake of
the scrivener, do not show an inten-
tion to invest the husbands with
title to any part of the property.
Under circumstances stated they
held an undivided one-half of the
property in trust for their wives,
and upon the death of the latter the
property descends to their heirs.
Ib.

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-

one

While the declarations of
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.
211
Owners in common of interests in
oil lands, carrying on the business
of producing oil, one paying his
share of the expense, and selling on
his own account his share of the oil
in the pipe line, do not become part-
ners without an express agreement
to that effect, or unless they have
so conducted themselves or made
such statements as to lead strangers
to believe that they are partners.
Ib.

The testimony, in another case, of
one of the defendants, that they
were partners, is not conclusive
against him; neither is it a mere
legal conclusion, but may go to the
jury, with other facts, under proper
instructions by the court on the
question of partnership.
Ib.

Such a statement is not a suffi-
cient foundation for the conclusion
that the party making it was a part-
ner, nor will it sustain a verdict
against him on that ground, where
it appears that there was no express
contract of partnership, that he ac-
quired his interest in the common
property separate from his asso-
ciates, that he furnished and paid
his part of the machinery and ex-
penses, that he sold his share of the
oil in the line separately, on his
own account, and that prior to the

Partnerships-Physicians and Surgeons.

PARTNERSHIPS-Continued.

sale to his associates of the property
for the price of which suit is
brought, he said and did nothing to
induce the seller to believe that he
was a partner.
Ib.

Two brothers doing business as
Mr. Doob & Brother, must register
under the statute relating to the
use of fictitious names in partner-
ships. Doob & Bro. v. Manufactur-
ing Co.

722

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.
692

See also HUSBAND AND WIFE.

PAYMENT-

The rule that money paid under a
mistake of law cannot be recovered
back, often operates harshly and in-
equitably, and is regarded with so
much disfavor by the courts that it
will not be extended beyond the
limit heretofore defined for the
scope of its operation. Ward v.
Ward.
59
A payment to a building society,
made by a member thereof, of an
amount in dispute between them, as
to whether it is legally due for in-
terest on a mortgage held by the
society on the member's property,
the society threatening unless such
money is paid to foreclose the mort-
gage and sell the property, is a yol-
untary payment and cannot be re-
covered back. Sampsell v. Invest-
ment Co.
601
PENSIONS-

It is within the power of the legis-
lature to change or abolish laws re-
lating to the subject of pensions to
disabled firemen, and the fact that
an injured fireman was pensioned
under the law of 1880, 77 O. L., 309,
and the amendments of April, 1886,
83 0. L., 37, and 1883, and drew
fifty dollars per month, gives such
person no vested rights which could

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. Ib.

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 therefor until the re
lationship is ended or prior to the
time when the physician announced
that he would do nothing further.
Ib.

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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