Sampsell v. Investment Co.

On the other loan she says she should pay $310, deducting therefrom credits to which she is entitled for the payments made, and the thirty-five cents to be treated as usury.

But the association says she owes $346, which is $36.00 more than she says, making the entire amount of difference between them the sum of $581.68. She desires to have the mortgage cancelled. She says that in order to prevent the loan association from foreclosing their mortgage it was necessary that she have it cancelled, for otherwise they would proceed to foreclose. The language is that said company threatened to foreclose said mortgage and sell said property, unless the plaintiff paid other installments, or submitted to said illegal exaction. To prevent said property from being sold, she made the payment, paying $580, or $590 more than she owed, and she said that she did this under protest, and that she expected to recover it back, but she paid it, as she says, to prevent their foreclosing the mortgage.

It is well known to counsel in the case and to everybody else familiar with the law, that if that payment was a voluntary payment, it she voluntarily paid this money, knowing all the facts, she cannot recover it back. She says: "I paid it to save my property from being sold in foreclosure proceedings." They could not very well have foreclosed without giving her an opportunity to make her defense. If a suit in foreclosure had been brought, she could have made her defense on the tacts she sets up here. Or, she could have filed her petition in chancery to have the mortgage cancelled, by tendering the amount she said she owed. If she tendered the true amount which she actually owed, she would have been entitled to a decree cancelling that mortgage. We are cited, by counsel for the plaintiff in error, to a case, Baker v. Cincinnati, 11 Ohio St. 534, where a party was seeking a license for an exhibition in the city of Cincinnati.

There is language used in that decision which might and does look as though the court might hold, possibly, in a case like this, that a payment such as this was not voluntary. But our Supreme Court have had this question before them, and it seems to us that the decision in Williamson v. Cole, 26 Ohio St. 207, which has never been qualified by any decision of the Supreme Court, settles this question. The court in that decision use this language: "Usurious interest voluntarily paid cannot be recovered back; and the payment of such interest by a borrower to obtain a reconveyance of land held by the lender as security for the loan, and which the latter refused to reconvey, without the payment of such interest, is voluntary.”

Marietta v. Slocomb, 6 Ohio St. 471. It is true that is before Baker v. Cincinnati, supra, and it the latter had the law declared by the Supreme Court, it would necessitate a reversal of this case.

We are not prepared to say that we would be justified in reversing by Marietta v. Slocomb, supra. It is cited in Stephan v. Daniels, 27 Ohio St. 527, 539. In that case, the court used language which justifies us in saying that the opinion in Williamson v. Cole is the law, and that the interpretation which we give is the true interpretation. The court there quoted from Smith's Leading Cases in Equity, in which it seems to us it is shown that this is a voluntary payment on the part of Mary A. Sampsell; and it being a voluntary payment, she is not entitled to recovery in this action, and the demurrer was properly sustained.

The judgment of the court below is affirmed.

Harrison Circuit Court.

NEGLIGENCE-CHARGE TO JURY.

[Harrison Circuit Court.]

*P. C. C. & ST. L. Ry. Co. v. WILLIAM Moreland.

1. WHEN NEGLIGENCE is a Question of Law.

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.

2. RULE Where Danger is KnowN AND CAN BE AVOIDED.

A railway company owes no higher duty to its employes, in respect to the safety of a place to work, than a municipal corporation owes to its citizens in respect to its streets. The rule is, that, if the employe can easily avoid a known place of danger, but takes the chance of going into it, he cannot recover. Schaefler v. Sandusky, 33 Ohio St. 246, followed.

8. RULE APPLIED.

A railroad company is not liable for injuries to a section hand caused by the falling of ice from a ledge at the side of the railroad track, where it appears that such employe would not have been injured by the falling ice while at work, but that, to avoid a passing train, which could have been seen several hundred yards away, he stepped to the left of the track and close to the ledge, when he could easily have stepped to the other side of the track or farther along on the left side, and thus have avoided the danger of which he knew, and had the same means of knowing as the foreman under whom he was working.

4. ONLY QUESTIONS FOR THE JURY.

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 company was guilty of negligence in putting plaintiff at work where he would naturally, according to custom, put himself in danger, if he should leave the track to avoid a train.

5. IF MUTUALLY at Fault NO RECOVERY Could be ALLOWED.

If it should be conceded that the section boss was guilty of negligence in placing the employe at that point and in not anticipating that the train would pass and that the employe might go near the ice, the latter was also guilty of some fault in not looking after his own safety and in stepping near the ice when the jar of the train would be likely to cause it to fall; and if they were mutually at fault, the employe cannot recover.

6. ERRONEOUS CHARGE AS TO MASTER'S DUTY.

A charge in such case, that it was "the duty of the defendant and its agents having direction over its men, to have ascertained the dangerous character of that work; or, if defendant knew of, or could have discovered, the dangerous character of the work, it was its duty to do so," does not correctly state the law. The master is required to use ordinary care to ascertain the dangerous character of a place where his servants are required to work, but he is not required to ascertain it at all hazards.

7. ERRONEOUS DEFINITION OF ORDINARy Care.

A charge that "the ordinary care required on the part of either plaintiff or defendant, in order to be exempt from any legal consequences 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.

For a later decision in this case, in which a judgment for the plaintiff for $2,500 was affirmed, see next case.

Railway Co. v. Moreland.

8. RULE AS TO CHARGES in General.

The charge of the judge to the jury should not be in the abstract, but in concrete, applicable to the particular case on trial. Usually the judge should say to the jury, that the facts as claimed by the plaintiff, if found to be true, do or do not constitute negligence on the part of the defendant. In like manner the judge should say to the jury, that the facts claimed by the defendant, if found to be true, do or do not constitute contributory negligence; and as every case turns upon a few controlling facts, the attention of the jury should be called to these coutrolling facts with instructions to return their verdict as they shall find these facts to be.

HEARD ON ERROR

J. Dunbar, for plaintiff in error.

D. A. Hollingsworth, for defendant in error.

Burrows, J.

This action was brought in the court of common pleas of this county to recover a judgment against the railway company, for injuries which he alleges in his petition were caused by the carelessness of the defendant company.

The issues were made between the parties and the case tried to a jury and a verdict in favor of the plaintiff was the result of the trial. A motion was made for a new trial and overruled by the court of common pleas and afterwards the petition in error was filed in this court, seeking to reverse the judgment entered in the court of common pleas.

Plaintiff below alleged in his petition that the defendant was guilty of negligence in this, that in the cut which is west of the Bowerston tunnel, as it is called, the defendant had permitted and allowed the accumulation of large quantities and masses of ice along and upon the rocks on the south side of this cut; that the defendant knew or ought to have known that this mass of ice, hanging from the rocks only a short distance from the track of the railway, was dangerous by reason of the liability of the same to fall on workmen or servants of the company working upon its tracks; that knowing, or having the means of knowledge, of this dangerous situation, the defendant ordered the plaintiff, William Moreland, to go to work upon the track of the railroad opposite to or near to a mass of ice that was more dangerous on account of a larger accumulation having been made at that point; more dangerous than it would have been to have worked at any other point in the

cut.

It is also alleged in the petition that the defendant is guilty of negligence in running trains over its track at this point, where workmen were liable to be standing or walking between the track and these masses of ice.

The defendant, in its answer, denies all negligence and avers that the plaintif was guilty of negligence which directly caused his own injury.

This, by reply, is denied by the plaintiff.

Upon the trial, there was very little dispute as to the facts. West of Bowerston tunnel, there is a deep cut on the south side, from the level of the track for two or three feet; extending up the side of this cut is dirt or fire clay; above that is a perpendicular ledge of rocks for a distance of twelve or fourteen feet, and above that to the top of the cut is simply earth, sloping back from the rocks.

Harrison Circuit Court.

There is no dispute as to distances or the quantity of ice, or the position of the tracks, or the position of the workmen.

From the perpendicular of this ledge of rocks to the tracks, the distance was some twelve feet. By means of the ditch being stopped, or for some other cause, at the particular point of this injury, the ice was hanging to this perpendicular ledge of rocks to the width of some eighteen or twenty inches, and the depth of a foot, as near as the testimony of any of the witnesses could ascertain it, and of the height along the rocks of some ten or twelve feet.

On the day of the injury some portion of this ice fell. The estimates are various, but substantially the same, that there was a quantity of two, three or five hundred pounds, or that two or three bushels of ice fell from this particular mass of ice.

There is no dispute as to other facts, that the plaintiff below had complete and full knowledge of the existence of this mass of ice at this point. There is no dispute but that the defendant, the railway company, had full and complete knowledge of the existence of this ice. There is no dispute but that the section boss ordered this plaintiff to go to work tamping or tapping the earth in under the ties opposite, or nearly opposite, this mass of ice. There is no dispute but what the plaintiff was injured, and seriously injured, by the falling of this ice.

It is also a matter that is uncontradicted that when the freight train was coming from the west, that the plaintiff stepped off the railroad track, where he was at work, and placed himself near this ice while the freight train was passing, and that while so standing there a portion of the ice fell and injured him.

The plaintiff alleges in his petition, and says in his testimony, that he had no knowledge of the dangerous condition of this ice or its liability to fall. He says also that he had some tear in that respect when he was required to go to this place to work; that others suggested to the section boss that it was dangerous; that the section boss took a jack handle and put it behind this projecting ice and undertook to throw it down, and thereupon told the plaintiff that he thought that it was safe.

When this ice fell, the proof shows that it fell almost in line with the perpendicular surface of these rocks and away from the railroad track, and the pieces, so falling, so far as there is any testimony, did not reach the railroad track to within four feet.

There is nothing in this evidence to show that there was any liability of this ice reaching the place where the plaintiff was at work. had it fallen while he was at work. At any rate, he was not injured while working upon the track.

While there are some allegations in the petition that the railway company was negligent in respect to the moving of its trains along this cut, the proof shows that this freight train was moving from four to eight miles an hour; no witness putting the speed higher than eight miles an hour. So that, if there is any allegation of negligence in the petition against the railway company as to the moving of trains, it is entirely unproved.

As I said before, there is no evidence of the ice being dangerous to a person working upon the track, while he was at work upon the track. The direct, proximate and only cause of this injury was the plaintiff stepping from the track where he was at work to avoid the coming train and placing himself in proximity to this ice.

Railway Co. v. Moreland.

While it is not stated in the petition that the plaintiff necessarily and by reason of being at work at this point upon the railroad, was compelled, in moving from the track, to go near this ice, yet perhaps it is implied or inferable from what was stated in the petition, that he naturally and necessarily, in avoiding the passing train, placed himself in proximity to this hanging ice pile.

It is evident from this recitation of the facts that the cause of the injury to the plaintiff was his position at the time the train passed.

It is not contended by counsel for the plaintiff below, that there was any real order or instructions from the railway company or this section boss that compelled or induced the plaintiff to go to the place where he went while the train was passing, to go into this place of danger, but it is rested solely upon the ground that it was usual and natural for persons working upon the track to step oft upon the side at which they were working, and that the railway company or the section boss, in ordering him to work where he was ordered to work, should have anticipated that, in the passing of the train, he would step to that side where the passing train was liable to throw down this hanging ice, and ought to have warned him not to have stepped to that side, or kept some observation of his conduct; to have prevented it, if it was seen he was about to go into danger.

The case was not tried upon the issues that were fairly made by the pleadings.

The only question, really, that was for submission to the jury, was whether the plaintiff was guilty of contributory negligence in going into the dangerous position that he did, to avoid the passing train; and the other question is, whether the company was guilty of negligence in putting the plaintiff at work where he would naturally, according to the usual custom, put himself in danger, it he should leave the track to avoid a passing train.

Now, without reading from the record, the evidence fully shows that the plaintiff himself had at least a strong suspicion that it was dangerous to be about this hanging ice. He made inquiry about it; he saw the section boss trying to see whether it was firm or whether it was liable to fall, upon the jar of the train, or without a jar; he had his opinion about it; he knew that the section boss necessarily could have no greater knowledge about it than he could have; one man would know as much about that as another. No man could tell whether a mass of ice hanging to the rocks in this way would fall by the passing of the train, or by the jar, and one man could tell just as well as another. Whatever means the section boss employed to ascertain its condition, was open to the observation and knowledge of the plaintiff. They all knew there was a liability of its falling from the jar. The water was trickling down and it was only a question of time when it melted and would fall; but when, none of them knew.

While he was at work upon the track, from anything that appears in this record, he was perfectly safe. No piece of that ice, when falling, would reach to the track where he was at work.

It was also perfectly apparent from this record, from the testimony of this plaintiff himself, that it was a question of two steps with him, whether he left the track and sought a place of safety upon its north side or went upon its south side. The record shows that the train could