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way by such turnpike or plank road company; provided, nothing herein contained shall affect the rights of property owners to give or withhold their consent concerning the right of wảy for street railroads upon any street or road. 89 O. L. 348.
Unless stipulated in the grant to the first company, the council has no power to fix the compensation to be paid for use of tracks by a second company; such compensation must be assessed by a jury. R. R. Co. v. R. Co., 36 Ohio St. 239.
A street railway company, authorized by council of a municipal corporation to occupy part of track of another company under section 3438, is authorized without the aid of the amendatory provisions of April 11, 1890, to appropriate the track according to the grant, the proceedings to be prosecuted under chapter 8, title 2, of part third, of the Revised Statutes. St. Ry. Co. v. St. Ry. Co., 50 Ohio St. 603, affirming 6 C. C. 362. See also 10 C. C. 168 and 7 N. P. 211.
For numerous points concerning appropriation of right to use tracks of another company, see Tol. Consol. St. Ry. Co. v. Tol. Elect. St. Ry. Co., 12 C. C. 367, affirming 6 N. P. 537, and Tol., etc., Ry. Co. v. Toledo Traction Co., 15 C. C. 190 and 17 C. C. 23; State v. El. St. Ry. Co., 19 C. C. 79.
$ 3441. The authority controlling the public road must
consentIf the public road along which the railway is to be constructed is owned by a person or company, or is within the control or management of the board of public works or other public officer, such person, company, or officer may agree with the person or company constructing the railway as to the terms and conditions upon which the road may be occupied. 67 v. 10, § 1.
$ 3442. Form of oath in appropriation proceedings-
In case of appropriation of property for such purpose, the oath to be admninistered to the jury shall be as follows: "You and each of you do solemnly swear that you will justly and impartially assess, according to your best judgment, the amount of compensation which is due to [here name the owner or owners], by reason of the appropriation of the street or avenue [as in the statement described], irrespective of any benefit from any improvement proposed by said [here name the company, individual, or company of individuals), and that you will, in assessing any damages that may accrue to [here name the owner or owners], by reason of the appropriation, other than the compensation, further ascertain how much less valuable the lot or lots of said [here name the owner or owners), will be in consequence of such appropriation.” And the jury, in ascertaining such compensation or damages, shall determine the amount thereof, without reference to the distinction between a public and a private nuisance, and the effect of such distinction upon the right of such owner or owners to claim compensation or damages, and the court shall, if requested, so direct the jury. 63 v. 55, 5; S. & S. 138.
$ 3413. Council, etc., may fix terms and conditions
Council, or the commissioners, as the case may be, shall have the power to fix the terms and conditions upon which such railways may be constructed, operated, extended, and consolidated. 67 v. 10, $ 1; 66 v. 140, § 1.
When street railroad companies may use tracks in common. R. R. Co. v. R. R. Co., 36 Ohio St. 239.
Where a street railway is constructed and operated under an ordinance which requires the company to keep the street between the rails repaired, etc., similar to the rest of the street, the city has control of the street, and may direct the kind of improvements to be made; and on failure of the company to comply with the notice to make such improvement, the city may make the same and recover the reasonable cost from the company. City of Columbus v. St. R. R. Co., 45 Ohio St. 98.
The rights of electric street railways in streets are superior to those of telephone companies whose electric circuit is disturbed by the operation of the street railway. Railway Co. v. Telegraph Ass'n, 48 Ohio St. 390.
$ 3443a, Watchmen at street crossings, intersections and
cornersWhenever any street railways are operated by electricity, cable, compressed air, or any motive power other than horses or mules, in any municipality, the board of legislation or council of such municipalities shall have the power by ordinance to require the owners or operators of any such street railways to place watchmen at any street crossings, intersections or corners which such board of legislation or council may deem dangerous; and to provide for the proper enforcement of such ordinances by penalties in the way of fine or imprisonment, or both, which may be imposed upon the owner, officer or operator of such street railways or by a penalty of not exceeding $100 per day, which may be recovered by such municipalities in a civil suit against the owners or operators of any such street railway failing to place such watchman as may be required. 89 0. L. 346.
(S 3443-1.) Sec. I. Establishment of street railroad route
in cities first grade, first class (Cincinnati),
made validIn all cases where in cities of the first grade of the first class the council has heretofore, by ordinance, established any street railroad route and declared the conditions upon which a street railroad should be constructed and operated upon and along such route, and due publication of a notice has been made calling for proposals to construct and operate such street railroad to be awarded to the corporation, individual or individuals that should agree to carry passengers thereon at the lowest rates of fare, and the proposal of a bidder who obtained and filed the written consents of the owners of the majority of the feet front of property on each street on the line of the route has been accepted thereon, and an ordinance passed granting to such bidder the franchise to construct and operate such street railroad, and such bidder has accepted the same and entered into a written contract with such municipal corporation to construct and operate such street railroad, such ordinance, grant, contract and franchise shall be deemed and held, in all respects, to be valid and binding notwithstanding the submission of another bid at such letting by a bidder proposing to carry passengers on such route at a lower rate of fare, who failed and neglected to obtain and file the written consent of any of the property owners on the line of said route.
88 0. L. 303. See 5 C. C. 609, 623.
(§ 3443-2.) Sec. 2. Authorizing municipal authorities to
grant permission to extend tracks, etc.-Fare not to be increased on account of extension,
etc.In cities of the first grade of the first class the board of city affairs or board of public improvements, or their successors in office, may, by resolution, grant permission to any corporation, individual or company owning or having the right to construct any railroad, to extend their tracks and route subject to such provisions of sections thirty-four hundred and thirty-seven, thirtyfour hundred and thirty-eight, thirty-four hundred and thirty-nine,
thirty-four hundred and forty, thirty-four hundred and forty-one, thirty-four hundred and forty-two and thirty-four hundred and forty-three of the Revised Statutes as are applicable and are not in conflict herewith, on any street or streets when such board may deem such extension beneficial to the public; and when any such extension is made, the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads by consolidation under existing laws, shall not be increased by reason of such extension or consolidation.
88 0. L. 303.
(3 3443-3.) Sec. I. Screens for protection of directors of
motor power on electric street carsEvery electric street car other than trail cars which are attached to motor cars shall be provided during the months of November, December, January, February and March of each year, at the forward end with a screen constructed of glass or other material, which shall fully and completely protect the driver, or motorman, or gripman, or other person stationed on such forward end and guiding and directing the motor power by which they are propelled, from wind and storm. go 0. L. 22o.
(S 3443-4.) Sec. 2. Penalty for failure to provide screens
Duty of prosecuting attorneyAny person, agent or officer of any association or corporation violating the provisions of this act shall, upon conviction, be fined in any sum not less than $25 nor more than $100 for each day each car belonging to and used by any such person, association or corporation is directed or permitted to remain unprovided with the screen required in section one of this act; and it is hereby made the duty of the prosecuting attorney of each county in this state to institute the necessary proceedings to enforce the provisions of this act. go 0. L. 220.
Above act (90 0. L. 220) is constitutional. State v. Nelson, 52 Ohio St. 88.
($ 3443-5.) Sec. I. Intersecting street railroads; repair
of crossings; stopping of cars at crossingWhere the tracks of two street railroads cross each other or in any way connected at a common grade, when one or both such street railroads use other than horse power for propelling their street cars, the crossings shall be made and kept in repair at the joint expense of the companies owning the tracks, and all such cars used on said street railroads shall come to a full stop, not nearer than ten feet nor further than fifty feet from the crossing, and shall not cross until the way is clear, and when two or more cars approach the crossing at the same time the car or cars on the road first built shall have the precedence. 88 O. L. 581.
(§ 3443-6.) Sec. 2. Street cars must come to full stop
when approaching intersecting steam rail
way, etc.That whenever the tracks of any street railroads in this state cross the tracks of any steam railway at grade, the street railway company operating said line of cars shall cause their street cars to come to a full stop, not nearer than ten feet nor further than fifty feet from the crossing, and before proceeding to cross said steam railway tracks, shall cause some person in their employ to go ahead of said car or cars and ascertain if the way is clear and free from danger for the passage of said street cars, and said street railroad cars shall not proceed to cross until signaled so to by such person so employed as aforesaid, or said way is clear for their passage over said tracks.
88 0. L. 581. In the absence of extraordinary circumstances it is negligence to cause such street car to cross such railroad track without stopping the car and going ahead as required by this statute. Whether such violation could be justified or excused by any circumstances whatever, quaere. Cin. St. Ry. Co. v. Murray, Adm'x, 53 Ohio St. 570, affirming, 9 C. C. 291.
(S 3143-7.) Sec. 3. Penalties
Every person in charge of any street car or cars who willfully fails to comply with the provisions of this act, and fails to bring said car or cars which he has in charge to a full stop, or causes the same before the way is clear, or signaled so to do to cross said steam railroad tracks, shall be personally liable to any person injured by reason of such failure as aforesaid, to a penalty of one hundred dollars, to be recovered by civil action at the suit of the State of Ohio, in the court of common pleas of any county wherein such crossing or connection is, and the company in whose employ such person having charge of said car or cars is, as well as the person himself, shall be liable in damages to