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by the public over the tracks of a
railroad company, on which were
passing trains making considerable
noise, while he was on an errand,
could have avoided the injury by the
use of his faculties is a question
for the jury. Lear v. Railway Co.

Where there is no evidence to the
contrary as to a fact, and the parties
have agreed in the trial of the case
orally that it is the rule of the com-
pany, or that a certain fact exists in
the case, a party has no ground of
complaint if the court says to the
jury that they need not find on that
question because the rule is in, or
the fact is conceded, and the parties
know what it is. Cleveland, C. C.
& St. L. Ry. v. Hudson.

Where a person can easily avoid
a place of known danger, but takes
the chances of going into it, the
question whether he is guilty of
negligence, is a question of law and
is not for the jury. Pittsburgh, C.
C. & St. L. Ry. v. Moreland. 604

The only questions, in such case,
which could have been submitted to
the jury were: whether the employe
was guilty of negligence in stepping
to that side of the track and close
to the ledge, to avoid the passing
train; and whether the railroad com-
pany was guilty of negligence in
putting plaintiff at work where he
would naturally, according to cus-
tom, put himself in danger, if he
should leave the track to avoid a

In an action against a railway
company for personal injuries al-
leged to have been the result of care-
lessly placing the plaintiff, a section
hand, at work in a place where ice,
which had accumulated upon a ledge
or an embankment, fell, as a result
of the jar of a passing train, which
he had stepped aside from the track
to avoid, and injured him, the ques-
tion whether the recollection of a
witness, as to what was said by the
foreman as to the safety of the place,
may be refreshed by an inquiry as
to whether or not certain statements
were made, is largely within the dis-
cretion of the trial judge; and, par-
ticularly where the answer could
not have been material or prejudi-
cial, his ruling will not be considered
by a reviewing court. Pittsburg,
Cin., Chi. & St. Louis Ry. Co. v. More-

*58 O. C. D. Vol. 12

The duty of determining the issues
to be tried in a case devolves upon
the court and should not be dele-
gated to the jury and for the court
to instruct the jury that they are to
take the pleadings and determine
the admissions, etc., therein, al-
though the court has stated sub-
stantially the admissions as under-
stood by the court, is to virtually in-
struct the jury to determine the
material issues therein and ascer-
tain if the court is correct in his
statement thereof, and is erroneous.
Lake Shore & M. S. Ry. Co. v. Beck-

Where, at a railroad crossing, a
freight train stood on a siding, ob-
structing a view of the main line for
about seven hundred feet, the en-
gine with steam up and making con-
siderable noise, apparently about
ready to start, and where train men
stood at the crossing and saw plain-
tiff approaching, driving at a slow
trot, but made no warning signs,
the question whether the plaintiff in
thus approaching, without stopping
to look or listen, within fifteen feet
of the crossing, and until too late
to avoid collision with a passenger
train on the main line, which ran
from behind the freight train and
confessedly at a negligent rate of
speed, was guilty of negligence, was
properly submitted to the jury.
Cleveland, Cin., Chi. & St. Louis Ry.
Co. v. Ivins.

Where, in an action to recover
damages for breach of a contract for
the sale of stock, plaintiff testified
that some time after the sale he
met defendant and asked him to take
the stock, and defendant, on the wit-
ness stand, stated that he had no
recollection of meeting plaintiff, and
denied that a tender was made, the
question of tender or offer to per-
form was properly submitted to the
jury. Andrews v. Watson. 692
Whether a person, riding on a
lumber wagon, on a board extending
between the axles, sitting behind
the driver but in front of the rear
axle, having looked and lis-
tened before attempting to cross a
railroad track with which he was
familiar, was negligent in remain-
ing on the wagon and attempting
to cross in front of an engine rapidly
approaching, without warning or
signal, the view of which was ob-
structed, until the horse's forefeet
were upon the track, and not more

TRIAL Continued.

than sixteen feet from such person,
and the engine was not more than
two hundred feet away, is a question
for the jury. Wheeling & Lake Erie
R. R. Co. v. Suhrwiar.
The question as to what is a rea-
sonable time, between an accident
and a change in appliance, machin-
ery or construction, as determining
the competency of such evidence, is a
question for the judge and must be
determined before the jury will be
entitled to consider such evidence.
Lake Shore & M. S. Ry. Co. v. God-








A person receiving funds under
circumstances above stated, having
knowledge of their origin and char-
acter, is not an innocent purchaser
for value, and can be required at any
time within six years of the receipt
of the funds, to return the same
to the executor of the estate, unless
some special grounds of defense exist
cutting off the right of the true
owner or custodian. Ward v. Ward.

Where, upon the death of testa-
trix, who devised the entire use of
her estate to her husband for his
life with remainder to her sons, after
the payment of certain legacies to
other heirs, her sons divided a cer-
tain fund in the bank, then believing
that it was theirs in accordance with
a course of dealing with their
mother by which they ran the farm
and divided the proceeds thereof
after paying all the family expenses,
which the court, in an action against
one of the sons as executor, adjudged
to belong to the estate, the receiving
and withholding of such mony by
the other son creates a constructive
trust in favor of the heirs and lega-
tees, and all property into which
such money can be traced is subject
to such trust, where it is not held
by an innocent purchaser for value.

The rule, applicable in certain
cases, that the cestui que trust must

bear the loss occasioned by the mal-
feasance or the misfeasance of the
trustee, or that where the property
is disposed of by the trustee, he is
without remedy except against the
trustee or his bondsmen, is not ap-
plicable to case above stated, where
the person withholding the property
parted with nothing to obtain it, and
has not even consciously asserted a
claim adverse to the rights or inter-
ests of the cestui que trust. Ib.



The fact that some questions sub-
mitted to the jury were not an-
swered, is not ground for reversal
where there is no evidence in the
record upon which the jury could
make findings thereon, or if the an-
swers had been made it would not
have affected the verdict because
the point was not in issue. Cleve-
land, C. C. & St. L. Ry. Co. v. Hud-
When the court directs the jury
to return a verdict for defendant,
and the jury being polled one juror
said the verdict was not his verdict,
the verdict is invalid. Eislein v.


The court improperly directed the
jury to return a verdict for defend-
ant in an action for damages against
a railroad company for the wrongful
death of a child where the undis-
puted facts do not show the negli
gence of the deceased and there is
evidence tending to show negligence
on the part of the company in fail-
ing to stop its train. Lear v. Rail-
way Co.
Where special findings, under Sec.
5201, Rev. Stat., are requested, it is
the right of counsel upon the other
side to make any argument which
they see fit, or which the trial judge
is willing to hear, as to the perti-
nency of the questions; and such
argument may be made in the pres-
ence of the jury. Pittsburg, Cin.,
Chic. & St. Louis Ry. Co. v. More-
It is improper for counsel, after
requests for special findings, under
Sec. 5201, Rev. Stat., to make sug-
gestions, under pretense of argu-
ment, as to how such questions
should be answered. If any direc-
tion is given to the jury in respect
to special and general findings, how
they are to be taken up, etc., they
should be instructed that they should


find the facts without any reference
to who would be injured or helped
thereby, and to then draw their con-
clusions by way of a general verdict
from all the facts.

It is not necessary that the request
for special findings, under Sec. 5201,
Rev. Stat., should be made before
argument; it is sufficient if made
afterwards, when no further argu-
ment can be made except as to the
propriety of the questions.
Where it appeared that many of
the questions involved in requests
for special findings, under Sec. 5201,
Rev. Stat., related to matters which
became immaterial or Irrevelant
under the general charge, and it also
appeared that other questions were
properly answered, the reviewing
court declined to disturb the judg-
ment notwithstanding the fact tnat
the answers to the other questions
were suggested by counsel and that
the jury obviously followed


The verdict of a jury will not
be disturbed on account of a clause
in a charge which if given alone
would have been wrong, where by a
consideration of the entire charge
it appears that the jury could not
have been misled. Price v. Coblitz.

Where the evidence is such that
the jury are clearly justified in their
conclusion as to a certain claim, al-
though the reviewing court is not
certain that the verdict was for the
right amount, but do not feel justi-
fied in saying it was contrary to
evidence or not supported by suffi-
cient evdence, the judgment will be
affirmed. Simon v. Mooney. 73

A reviewing court will not disturb
a verdict for the reason that the evi-
dence was conflicting and unreliable,
where the jury, if they believed the
party in whose favor it was
dered, were justified in rendering
the verdict which they did.


A motion to direct a verdict for
defendant involves the "scintilla
rule" in Ohio, from which the Su-
preme Court has not departed.
Baltimore & O. Rd. Co. v. Van Horn.

Unless the proof was such, in an
action for wrongful death, that no
rational inference could be drawn
therefrom, except negligence on the
part of decedent contributing to his
injury, the court properly overruled

a motion to direct a verdict for de-

It would be improper for a trial
judge to so direct a jury, in regard
to the manner of making special
findings, that the latter might be
permitted to think that, for the
purpose of sustaining a general ver-
dict which they might desire to
bring in, they would be permitted to
make answers to special findings
with a view, primarily, to their con-
sistency with the general verdict.
Rupp v. Schaffer.
A special finding by the jury
in an action for wrongful death,
caused by a defective fly
wheel, that the plaintiff's de-
cedent did not know of the de-
fect, is conclusive in a reviewing
court, although it may be doubtful
whether, had
the question
asked, the jury could have found
that by the exercise of ordinary care
decedent would not have known of
the defect; unless the finding is
clearly against the weight of the
evidence the verdict should stand,
and particularly where the trial
court directed the jury that such a
finding was essential to a recovery
by the plaintiff in whose favor it
was rendered. Forrest City Stone
Co. v. Richardson.

A verdict not manifestly against
the weight of evidence will not be
reversed, notwithstanding there may
be considerable question as to
whether it is right. C. & M. V. Ry.
Co. v. Thompson.

A general verdict should stand un-
less the special findings are neces-
sarily repugnant to it. Wicker v.

In an action on a building contract
providing that payment shall be
made upon architects' certificates in
which the petition contains allega-
tions that the architects, without
justification, refused to furnish such
certificates, a general verdict for the
plaintiff is not inconsistent with
special findings that the architects
refused to furnish the certificates
and that the reason for such refusal
was "not satisfied with the work,"
inasmuch as such findings are not
inconsistent with a determination
by the jury that the view entertained
by the architects was not justified
by the facts.

A general verdict should be sus-
tained unless it is clearly inconsis-
tent with any theory provable under


the issues and that the evidence
tends to support. Toledo Bridge
Co. v. Yost.
Where a man thirty-one years of
age capable of earning $700 a year
had both bones of his leg broken
just above the ankle and shattered
so that they did not unite for a long
time, and from which he suffered
severe pain and is incapacitated from
performing manual labor requiring
him to stand, and such injuries pro-
duce paralysis of the bladder and
rectum, a verdict of $10,000 is not
excessive, especially where the in-
juries are permanent, and notwith-
standing the fact that in a previous
trial within a few months after the
injury occurred and before his con-
dition was fully developed or the
results thereof could be ascertained
with practical certainty, a jury gave
him a verdict for only $5,000.
Weeling & Lake Erie R. R. Co. v.

See also PLEADING.




Verdicts-Waters and Watercourses.

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confine the water therein for a
lower riparian owner.

The right of riparian proprietors
upon a natural water course, navi-
gable or unnavigable, is property
and valuable; and, although it must
be enjoyed in due subjection to the
rights of the public, it cannot be ar-
bitrarily or capriciously destroyed
or impaired. It is a right, when
once vested, of which the owner can
only be deprived in accordance with
established law; and if necessary to
be taken for the public good, upon
due compensation. Deming V.

The act of February 9, 1893, 90
O. L., 34, amending the act of
March 18, 1889, 86 O. L., 109, author-
izing cities of the first class, second
grade, to contract for dredging
navigable streams within their
limits for not exceeding five years,
and providing that "the amount to
be expended for dredging shall not
exceed the current revenues for
such purposes in each year" ope-
rates, in respect to such contract,
and in such cities, to remove, or is
in substitution for, the limitation
upon power to contract of Sec. 2702,
Rev. Stat., as to certificates that
money is in the treasury and unap-
propriated. Sprankle v. Cleveland.


It was not intended by the act of
February 9, 1893, 90 O. L., 34,
authorizing cities of the first class,
second grade, to make dredging
contracts, the amount to be
pended not to exceed current yearly
revenue therefor, to authorize cities
to enter into contracts for the im-
provement of rivers which might re-
quire the expenditure of a large sum
of money to be raised only by in-
curring debts.

Where plaintiffs, in the action
above referred to, have a right to
all of the water in such tributary
stream, but for their present neces-
sity use only a portion thereof, the
order giving the defendants the ex-
cess over that amount should not
be a final order but one which may,
upon thirty days notice to defend-
ants and motion by plaintiffs, be
modified or extended as future con-
ditions may require. Turner V.
The rule that a city would be
justified in taking water from a
stream for domestic purposes under
the law of paramount necessity, does

Waters and Watercourses-Wills.

not apply where a foreign corpora-
tion takes such water, makes mer-
chandise of and sells it to citizens,
manufacturers and railroad com-
panies, especially where there are
other sources from which the neces-
sary supply could be had.

The owners of a manufacturing
plant on the banks of a stream of
water. for the operation of which
dams have been erected to supply
water power to operate extensive
machinery, are entitled to an in-
Junction to restrain a waterworks
company, organized for profit and
selling water to citizens, railroads
and manufacturing companies, from
taking water from a contributory
stream in such quantities as to re-
duce the supply at the manufactur-
ing plant below the amount required
to operate the machinery.

See also NUISANCE.


The primary or ordinary legal
meaning of the words "or legal
representatives" is that of "execu-
tors or administrators," as words of
limitation, and legacies under a will
devising a life estate to the widow
of testator and directing that all
testator's property be sold and the
proceeds divided equally among
certain persons "or their legal
representatives," vest at the death
of the testator, and not on the ter-
mination of the life estate. Thomp-
son v. O'Dell.

A bequest in the form of a direc
tion to pay or to pay and divide at
a future period, vests immediately
if the payment be postponed for the
convenience of the estate or to let
In some other interest as, for in-
stance, a life estate to the widow of
The fact that the disjunctive "or"
is used in gifts of personalty in a
will devising to certain persons or
their legal representatives, does not
make the words following words of
substitution, and, therefore, synony-
mous with "next of kin," for the
same construction applies to gifts
of personalty as to devises of realty.

If the gift is to take effect after a
life estate, the will does not afford
evidence of the testator's intention
to use the term otherwise than in
it ordinary sense.

if any term is used by a testator
which bas a primary or ordinary

legal meaning, such as "legal repre-
sentatives," being that of "executors
or administrators," that is the
sense in which it must invariably
be construed, unless the court is
reasonably satisfied, by evidence
collected from the will itself, of the
testator's intention to use it in a
different sense.

A testator is presumed to know
that there are many things that
may delay the settlement of his es-
tate which could not be foreseen
and to make his will with such un-
derstanding. Perkins V. Perkins.


When property retained by the
trustees is held by them absolutely
without any income or right to it
by the trustees and the income is
properly added to the principal. Ib.

Though the parties acted in good
faith and in the interests of them-
selves and the grandchildren, agree-
ment opposed to the specific provi-
sions of the will cannot be enforced.
Frank v. Archer.

Under such circumstances the
widow should be allowed such pro-
portion of the income of the whole
improved tract as the value of the
ground on which the residence was
situated, if unimproved, bears to
the whole improved tract, without
taking into consideration the value
of the residence torn down; in bal-
ance of the income neither the
widow nor the children are entitled
to share until the mortgage is paid.
Where such an agreement has
been executed by the trustees and
the residence torn down, the build-
ing erected and the mortgage given,
it is the duty of the court to so con-
strue the rights of the respective
parties under the will as to restore
them as nearly to their former posi-
tion as may be.

The legislature in Sec. 5971, Rev.
Stat., providing that a devise or be-
quest shall not lapse by the death
of a devisee or legatee, used the
term "residuary estate" technically,
and it should receive its technical
construction, especially where there
is nothing in the statute indicating
any other use thereof. Jewett v.

Nor will the fact that testator
died leaving debts of his last sick-
ness make any difference in the con-
struction of his will as to making
the balance of his estate devised

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