Lucas Circuit Court.

DOWER.

[Lucas Circuit Court.]

Caldwell, Hale and Marvin, JJ.

*MARIETTA JEFFREY V. BENJAMIN YOXTHEIMER ET AL.

1. DOWER IN LAND PLEDGED BY MORTGAGE.

A wife who has pledged her dower towards the payment of mortgages upon lands of her deceased husband, has a right to have her husband's interest therein applied first and then so much of her dower interest as may be required to liquidate the balance.

2. WIFE MUST OFFER TO REDEEM.

Where the wife's dower is sold with the interest of her husband, without making her a party to the action, to liquidate liens on lands in which she released her dower, she cannot subsequently have dower therein assigned without first offering to redeem.

3. PURCHASER SUBROGATED TO RIGHTS OF MORTGAGees.

The purchaser of mortgaged lands at a judicia! sale by the assignee for the benefit of creditors buys the interest of the assignor and becomes subrogated to the rights of the mortgagees therein as against the dower interest of the widow of decedent, she having released her dower interest therein as to them.

4. PRESUMPTION AS TO VALUE OF DOWER.

Where it appears that the encumbered property sold for $8,818.50 and that the sum required to liquidate the mortgages was $8,061.66, the court, without evidence as to the wife's age, may assume that her dower interest amounted to more than $756.64 and that part of it was required to liquidate the encumbrances.

CALDWELL, J.

In this case the plaintiff seeks to have dower assigned her in certain lands in Homer township, Medina county, Ohio. The defendant, Benjamin Yoxtheimer, sets up in his answer that said lands were subject to four mortgages amounting to over eight thousand dollars, and that the plaintiff had signed each of said mortgages, and had therein released her dower. That her husband in his lifetime, James Jeffrey, was seized of the lands described in plaintiff's petition, and that he became insolvent and unable to pay his debts, and that he made an assignment of all his property, including the lands described in the peti

*Affirmed by the Supreme Co irt, without report, 59 Ohio St. 628.

G. W. Lewis and Geo. Hayden, for plaintiff in error, in the Supreme Court cited:

The contingent right of a widow to have dower in lands at the husband's death (if he died first), is property having a substantial value, and cannot possibly pass by husband's assigninent of the lands in which she has such contingent dower: Mandel v. McClave, 46 O. S. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627]; Ketchum v. Shaw, 28 O. S. 503, 507.

The probate court has jurisdiction of proceeding to assign dower: See 83 O L. 236; see also Dwyer v. Garlough, 51 O. S. 158.

Barnard & Richards, for dese dants in error, cited:

Release of dower: Ketchum v. Shaw, 28 O. S. 503, 506.

Where it appears that a portion of dower was required and used in liquidating the mortgage debt, the widow cannot have dower assigned to her in the lands without first offering to redeem: McArthur v. Franklin, 15 O. S. 485, and McArthur v. Franklin, 16 O. S. 193.

Jeffery v. Yoxtheimer.

tion, to one S. B. Woodward in trust, for the benefit of his creditors; and that the trust was duly filed in the probate court, and was fully executed; and it sets up that at the time of the assignment the mortgages were wholly unpaid, and that the probate court of Medina county ordered the assignee to sell the lands described in plaintiff's petition; and that the assignee, in pursuance of that order, sold and conveyed the lands to Charles Camp for the sum of $8,818.50; that at the time of the assignment the mortgages were all due and unpaid; that the probate court approved the sale of the lands by the assignee, and ordered him to make a deed to Charles Camp, which he did, and to pay off the liens, and ordered that the assignee first pay the costs, which amounted to $403.38, and next, to pay the several mortgages, four in number, which amounted to $8,061.66. That after the assignee had paid the costs and the mortgages, there still remained in his hands the sum of $353.46. A demurrer was filed to this answer, which demurrer was overruled, and the case comes here claiming that in overruling the demurrer there

was error.

After careful examination of this petition we conclude that it fairly avers that the probate court ordered the entire land to be sold, and that the land was sold and a deed given of the entire land. If the interest of James Jeffrey in these lands had been sufficient to pay the mortgage liens, so that there was no need of selling the wile's dower in the lands, it might be claimed that she had this right now to have dower assigned her in the lands; but she has pledged her dower toward the payment of these mortgages, and under that pledge it is her right to have her husband's interest in the lands first applied to the payment; and second, to apply her interest so far as it is necessary to liquidate any balance left unpaid by the interest of the husband.

It appears from the answer that the full amount realized for the lands was $8,818.50, and that the amount required of that sum to liquidate the mortgages was $8,061.66; so that the entire amount realized for the lands was required except $756.84.

It is the law that where the wife's dower is sold by the court with the interest of the husband without her being a party to the action, that if her interest in the lands as dower is required to liquidate the liens on the land in which she has releaseed her dower, then she cannot have dower assigned her in the lands without first offering to redeem the same.

We have no evidence as to the age of the plaintiff, but but it is fair to presume that her dower in these lands would amount to more than $756.84; so in this way it appears that a portion of her dower interest in the lands was required to liquidate the mortgages; and this being true, she cannot maintain the action set up in her petition, the facts as above stated appearing in the case, without first offering to redeem.

We therefore hold that the answer sets up good defense to the petition, that when Camp bought the entire land he bought the interest of James Jeffrey therein and became subrogated to the rights of the several mortgagees against the dower interest of the plaintiff, which interest of Camp they, the present owners of the land, now hold. As against the mortgages she cannot have dower assigned in the land without offer to redeem. It follows that she cannot have her dower assigned in the lands as against the present owners without first offering to redeem.

The judgment of the court of common pleas is affirmed.

Warren Circuit Court.

NEGLIGENCE-RAILROAD CROSSINGS.

[Warren Circuit Court.]

Cherrington, Smith and Swing, JJ.

* CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY Co. v. ALVIN IVINS.

QUESTION OF Negligence Properly Submitted to JURY.

Where, at a railroad crossing, a freight train stood on a siding, obstructing a view of the main line for about seven hundred feet, the engine with steam up and making considerable noise, apparently about ready to start, and where train men stood at the crossing and saw plaintiff 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.

HEARD ON ERROR.

J. E. Smith, John T. Dye and Goulder & Holding, for plaintiff in

error.

error.

Seth W. Brown, W. L. Lechant and P. H. Rue, for defendant in

SWING, J. (Orally.)

We

With the case of the Big Four railroad against Alvin Ivins, the members of this bar are very familiar. Before this court there have been no less than three presentations of the case; once before Judge Smith and myself; once before Judge Smith, Judge Cox and myself, and lastly before Judge Cherrington, Judge Smith and myself. Judge Smith and I have had a great deal of difficulty in considering this case. have gone over it repeatedly to see if we could harmonize our views and have discussed the evidence and the law, but while both of us have recognized that it is a case not without a great deal of trouble, we have been unable to agree as to the rights of the parties in the case. Upon the hearing of the case before Judge Cherrington, Judge Cherrington took the view of the case that I had previously entertained, and I will attempt in a very brief way to state what I consider to be the views of the majority of the court on the question.

The question of negligence, as is well known, is a mixed question of law and fact, which, under proper instructions, is to be left to the jury. Whether or not it is negligence seems to be determined by what under like circumstances would men of ordinary prudence have done. Our courts have singled out and repeated in decisions a great many things which amount to negligence per se, and they have laid down certain rules which must govern every one, and which they think men of ordinary prudence will observe, and yet, in every case there comes the crucial test to know what men of ordinary prudence would do under the circumstances. For instance, it is said a man must use his senses of seeing and hearing when about to cross a railroad track, because men of ordinary prudence will do that.

17.J

*Affirmed by the Supreme Court, without report, 55 Ohio St. 674 [48 N. E. Rep.

Railway Co. v. Ivins.

And I might state other circumstances; but coming to the question here at issue, Mr. Ivins, I believe, on June 18, 1891, approached the crossing of this railroad track from Franklin, going towards his home. The testimony shows that at a point some ninety feet beyond the crossing of the railroad track, there was opportunity for him to have seen a small portion of the railroad track at one particular place in the road; I think just as he was crossing the canal bridge, the testimony shows a person might see at one point a small portion of the railroad track. I believe the testimony fails to show anything in regard to the conduct of Mr. Ivins at that particular place. He crossed the canal bridge and also went beyond, following the road crossing to the track until he passed the Maxwell warehouse. At that point he was forty-two feet from the railroad track.

The testimony of those who saw Mr. Ivins at that time was that immediately after passing the Maxwell warehouse, he turned his face north in the direction of the railway track. At that time, it he saw anything, he saw a freight train standing upon the side track, extending from two hundred and forty feet at a limit some seven hundred feet north on the track. This freight train was attached to an engine, or consisted of an engine and quite a long train of cars. The freight train was standing still, blowing off steam, making a great deal of noise.

I believe the testimony fails to show whether, in his position at that time, he was able to see the train over the top of the freight cars, approaching from the north. He was proceeding in his wagon, which had in it empty milk cans, down towards the crossing of the railway track, I may say the testimony authorizes the court to believe and authorized the jury to believe, at a slow jog of a trot. He proceeded within fifteen feet of the track. The testimony of the witnesses would seem to indicate that is about the distance, from twelve to fifteen feet, when, I think the testimony fairly shows, he saw the passenger train shooting out from behind the freight train, on the main track. He saw the approaching passenger train, I assume, at about the same time the engineer of that train saw him. At that time, both the engineer and Ivins, the testimony shows, attempted and tried to do all they could to avoid a collision. The engineer sounded the danger signals and put on air brakes. Ivins tried his best to avoid a collision, but a collision resulted in which Ivins was very seriously injured.

It is admitted that the railroad company was running at a negligent rate of speed. The engineer says at the time of the collision, he was running at about the rate of ten miles an hour. I believe the testimony shows that before the train was stopped, it had gone about two train lengths. The testimony of other witnesses was that it was running as high as thirty-five miles an hour. The train was seven minutes behind time. The testimony tends to show that Ivins knew that a train was due at Franklin about that time, at or near that time. It does not show conclusively whether he had supposed the train had passed, or had not passed, as far as I remember.

These facts, under proper instructions, were left to the jury to determine whether or not, admitting the railway company to have been negligent, Ivins was guilty of contributory negligence. The jury have said that he was not guilty of contributory negligence. Now, can we, as a reviewig court, say that manifestly and fairly against the evidence, Ivins was guilty of contributory negligence? For my part, I can not. It

Warren Circuit Court.

is difficult for me to see in what particular Ivins was negligent. What should he have done to have avoided the collision, or what would a man of ordinary prudence under like circumstances have done? What could have been the condition of his mind? What would the mind of an ordinary prudent person be liable to do under like circumstances?

It is said that one should stop and listen, and yet that is not always the case where circumstances are such as to lead one, a reasonable man, to think that the way is clear for him to proceed.

It would seem to me that in order for Ivins to have avoided this collision at that time, it might have been necessary, as it turned out, that he should have stopped his horse, to have got out, possibly, and gone and inquired of the railroad men, as the testimony seems to show that they were standing there. They did not signal to him to stop. He saw them standing there, if he saw anything, it he was looking at them. They made no effort to stop him or warn him out of any danger. He saw the engine under steam evidently about to draw He approached the railway crossing on a slow jog of a trot, which ordinarily he might have supposed was sufficient for him to check his horse, if there was danger. So, that I cannot see that there was any danger apparent or any negligence on the part of Ivins, unless it be that he got to within fifteen feet of that track on a slow jog trot, because, after that time, the evidence shows, he did all within his power to do to prevent the collision.

out.

Now, might he not have assumed that this engine with the freight train attached was about to pull out, and seeing those people standing there, the railroad people, on the track, making no effort to stop him, that he should go across the road. He did not approach the track in what you might call a reckless manner, because it is not negligence under all circumstances to approach a train on a slow jog of a trot.

But further than that, had he not the right to assume that this train, if there were a train approaching, would blow its whistle; that it would sound its alarm; that it would ring the bells? And further, that if it were approaching the crossing, that it was approaching it at a proper rate of speed, to-wit, six miles an hour, instead of coming at a lighting rate of speed of thirty or thirty-five miles an hour, and without sounding an alarm or any signal of danger to him?

Now, while I say there are decisions and statements in decisions which might lead one to think that possibly he ought to have got out, it he did not know positively that the way was clear, and hitched his horse and stopped and hallooed, or something of that kind, it may strike dfferent minds differently.

Now, I had some doubt about it, but Judge Cherrington in talking about it said he thought it was fairly equitable, and that if he had been a juror, he should have felt he was in duty bound to render a verdict for the plaintiff under the circumstances, much less would he feel like reversing it, sitting as judge in a reviewing court; so that to the majority of the court, it is not manifestly clear that this man was guilty of such contributory negligence that he cannot recover in the action.

We have looked to the question of excessive damages, which was not argued to us. We see that it is alleged that it is a ground of error in the petition. We have looked over that. We think if the jury believed statements of Ivins, as they had a right to do, and the statements of Dr. Mitchell, the expert witness, that the judgment is not excessive, and it should be confirmed for the full amount.