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alike, of the presence of such train at such place, and that it is likely to be moved at any time, and such train in that condition is not an invitation to any of the traveling public to pass over the crossing by climbing upon or over such train,” which was refused.
One objection to this request is, that it ignores the difference between the responsibility of adults and children already ad. verted to. Whether or not the presence of a train upon a crossing should be treated as notice to a child of nine years of age that it is likely to be moved at any time depends upon the degree of intelligence and judgment possessed by the child, and that, as we have already 386 found, is a question of fact for the jury. Besides this, it might be argued that the train would naturally furnish temptation to such a child, when desiring to pass, to take great risk in doing so, and that trainmen, as reasonable men, ought to anticipate that children would exercise only the discretion usual among children, and, if circumstances indicated their presence at the crossing, to take reasonable precautions for their safety.
The charge as a whole was excepted to. We think it correctly presents the law, and is as favorable to the defendant below as its counsel could well ask.
Other questions were argued. They have all been considered, but we do not find anything in the record which would warrant & reversal of the judgment.
RAILROADS-NEGLIGENCE-LEAVING TRAIN ON CROSSING.–The obstruction of a public crossing over a railroad is a nuisance, and the company is liable for all the consequences that may ensue from leaving a crossing obstructed by a train of cars: Murray 1. South Carolina R. R. Co., 10 Rich. 227; 70 Am. Dec. 219.
NEGLIGENCE-VIOLATION OF LAW AS.-One who neglects to perform a specific duty imposed upon him by a statute or municipal ordinance for the protection or benefit of others is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent, and which were proximately produced by such neglect: Osborne v. McMasters, 40 Minn. 103; 12 Am. St. Rep. 698, and note; to the same effect see Clements v. Louisiana Electric Light Co., 44 La. Ann. 692; 32 Am. St. Rep. 348, and note.
NEGLIGENCE-PLEADING.-A complaint in an action to recover for personal injuries caused by the negligence of the defendant need only allege that the injuries were so caused and the facts from which the negligence may be reasonably inferred by the jury: Madden v. Port Royal etc. Ry. Co., 35 8. C. 381; 28 Am. St. Rep. 855, and note. A complaint charging negligence in general terms is good on de. morrer: Mississinewa Min. Co. v. Patton, 129 Ind. 472; 28 Am. St. Rep. 203.
NEGLIGENCE-CHILDREN-PRESUMPTION AS TO DISCRE. TION OF.-Contributory negligence on the part of a minor is to be
measured by his age and ability to discern and apprehend circuinstances of danger. He is required to exercise only such prudence as one of his age may be expected to possess: Queen v. Dayton Coal etc. Co., 95 Tenn. 458; 49 Am. St. Rep. 935, and note. A child is beld to such care and prudence only as are usual anong children of his age and capacity: Haynes v. Raleigh Gas Co., 114 N. C. 203; 41 An. St. Rep. 786, and note.
NEGLIGENCE CANNOT, AS A MATTER OF LAW, BE IMPUTED TO A CHILD eight years old, and prima facie he is incapable of exercising that degree of care and caution which the law requires of an adult: Lorence v. Ellensburg, 13 Wash. 341; 52 Am. St. Rep. 42, and note. Infants of tender years and wanting in discretion are not amenable to the disabling effects of contributory negligence: Western Ry. v. Mutch, 97 Aia. 194; 38 Am. St. Rep. 179, and note. See, also, the extended note to Westbrook v. Mobile etc. R. R. Co., 14 Am. St. Rep. 590-596.
MORTON v. WESTERN UNION TELEGRAPH COMPANY.
(53 OHIO STATE, 431.) TELEGRAPH CORPORATIONS-DAMAGES.-Mere mental pain and anxiety are too vague for legal redress, where no injury is done to person, property, health, or reputation. Hence, an action cannot be sustained for the nondelivery of a telegram, when the only resulting injuries were the leaving of the person to whom it was addressed in ignorance of the fatal illness of his mother, and depriving him of the comfort of being with her in such illness and attending the funeral.
Action to recover for the negligent failure to deliver a telegram. The judgment in the trial court was in favor of the defendant.
George B. Cannon, for the plaintiff in error.
431 THE COURT. The plaintiff in error brought suit to recover damages for the negligent failure of the defendant 432 to deliver to him at London, Ohio, a telegram as follows:
"Henly, 0., Oct. 12, 1890. "To Will Morton, London, Ohio: "Mother dying. Come immediately
"FRANK MORTON.” He alleges that the sender of the telegram, who was his brother, paid to the company the usual rates; that it negligently failed to deliver the message to him, whereby he was "left in total ignorance of his mother's illness, and was deprived of the bolace and comfort of attending her in her last sickness and of the privilege of attending her funeral, which he could and would have done but for the default of the defendant, its agents, and employés, and that he was injured in his feelings and affections thereby in the sum of five thousand dollars.”
A demurrer to the petition was sustained in the court of common pleas, and that judgment was affirmed by the circuit court.
The judgment rests upon the elementary principle that mere mental pain and anxiety are too vague for legal redress, where no injury is done to person, property, health, or reputation: Cooley on Torts, 2d ed., 716; Greenleaf on Evidence, sec. 267. Numerous reported cases show that this doctrine has been followed in cases of this character by the federal courts and the courts of last resort in nearly all of the states. The wisdom of the doctrine is well illustrated by the experience of the courts that have departed from it.
TELEGRAPH COMPANIES-DAMAGES—MENTAL ANGUISH Damages cannot be recovered for mental suffering caused by the failure of a telegraph company to transmit and deliver a message. This under the rule that damages cannot be recovered for mental suffering resulting from the breach of a contract: Francis v. Western Union Tel. Co., 58 Minn. 252; 49 Am. St. Rep. 507, and note. See, also, on this subject the extended note to Western Union Tel. Co. v. Cooper, 10 Am, St. Rep. 788-790.
TUTTLE v. BURGETT.
(53 OHIO STATE, 498.] CONTRACT, PLACE OF PERFORMANCE.-11 in a contract no place for its performance is mentioned, it is to be performed to the obligee in person, who may designate any reasonable place of performance.
CONTRACT, PLACE OF PERFORMANCE OF AGREEMENT TO SUPPORT ANOTHER.-One who, by virtue of an agreement, is entitled to receive support from another, and to be furnished with comfortable rooms, food, clothing, medicines, and medical attendance, cannot be required to receive them at the house of the promisor. The obligation of the latter is to supply them at any reasonable place designated by the former.
UNDER A MORTGAGE CONDITIONED THAT THE MORTGAGOR WILL SUPPORT THE MORTGAGEE during life, the latter has the right to support where he shall choose to reside, subject to the qualification that the place selected shall not impose needless expense on the mortgagor. The latter has no right to insist that such support shall be received at his place of residence.
CONTRACTS FOR SUPPORT, made by and in favor of persons of declining years with children or relatives, upon adequate consideration, should receive a liberal construction in favor of the obligees, and must be understood as entitling them to be comfortably situated, as well as to be supplied with adequate food, clothing, and other necessaries. They should be allowed reasonable liberty in the choice of their situation and surroundings, and not compelled to remain under the roof and within the control of the parties whose pecuniary interest it is to be relieved of the burden at the earliest moment.
EVIDENCE, PAROL TO CONTROL AGREEMENT FOR SUPPORT.–Testimony as to what was said prior to the execution of a mortgage conditioned for the support of the mortgagees as to where they were to live after such execution is not admissible to vary the effect of the mortgage, so as to obligate the mortgagor to furnish such support only at his own residence.
CONTRACT FOR SUPPORT, ATTEMPT TO RESCIND DOES NOT WAIVE RIGHT TO ENFORCE.-The fact that the mortgagee of a mortgage conditioned for his support during life brings suit to set it aside and a conveyance preceding it on the ground of alleged fraud and undue influence does not preclude him from subsequently maintaining a suit to foreclose the mortgage.
Suit to foreclose a mortgage made by P. W. H. Tuttle in favor of William Burgett. The mortgagee, being the owner of a considerable amount of real and personal property, conveyed both to his son in law, in consideration of an agreement made by the latter, and to secure the performance of this agreement received a mortgage upon the property thus conveyed, the condition of which recited the conveyance of the real and personal property, and that it was delivered in consideration of supporting said William Burgett and Mary Burgett during the terms of their lives, and the condition of such mortgage was further thus described therein: "To furnish each of them with comfortable rooms, food, clothing, medicines, and medical attendance in sickness, and at their death to place at the grave of each of them a marble slab properly inscribed; to pay to William Burgett fifty dollars each year, and to carefully provide for each of them the necessaries and comforts of life, suitable for persons of their age and situation in life.” The deed and mortgage were executed April 4, 1884. A short time afterward, Burgett and his wife left the farm on which they had previously resided, and went to live with Tuttle in the village of Geneva, some miles distant. In February following, they became dissatisfied, and went to the home of their son Henry, after which they soon left there, and went to the home of another son in law, Woodruff, where they remained until their death, both dying on the same day, January 28, 1886. Tuttle, when Burgett and wife were leaving his house, forbade their doing so, and declared in the presence of their son Henry that he would not provide for them while they were away nor pay for anything furnished to them, and he subsequently gave the same information to the other son in law, Woodruff. Tuttle, however, pleaded in his ansewer that he was always ready and willing to furnish and provide at his home in Geneva everything that he was required to do by the condition of the mortgage, and that he was prevented from doing so by the absence of Burgett and his wife. Burgett, after leaving Tuttle, brought a suit to set aside the deed and mortgage, and to recover back the property transferred by him to Tuttle, alleging that the conveyance and transfer were obtained by fraud and undue influence while he and his wife were incapacitated by age, sickness, and their enfeebled condition from transacting business. This action was never brought to trial, but was dismissed after the death of the mortgagees. While Burgett and his wife lived at their son Henry's, and also while they resided with their son in law Woodruff, it was under an agreement to pay reasonable compensation for their support. After the death of Burgett and his wife, administration was granted on the estate of the former, and the son Henry and the son in law Woodruff presented their claims for such support, which were allowed by the proper court; and this suit was brought to foreclose the mortgage for the amount found due upon the claims so allowed. Judgment was rendered in favor of the complainant in the trial court. During the progress of the trial, the defendant offered evidence of verbal declarations which he claimed were made by Burgett while negotiations were in progress between him and Tuttle, to the effect that if such negotiations were consummated, Burgett expected that he and his wife would live at Tuttle's at Geneva. Such evidence was rejected by the trial court. The defendant prosecuted a writ of error.
Barrows & Jerome and F. R. Smith, for the plaintiff in error. Howland & Starkey, for the defendant in error.
602 WILLIAMS, J. In behalf of the plaintiff in error, it is claimed: 1. That under the agreement of the parties as expressed in the condition of the mortgage, Burgett and his wife were obliged to receive their maintenance and support at the residence of Tuttle, and, therefore, the failure or refusal to furnish it elsewhere constituted no breach of the condition; or 2. If such is not the legal effect of the condition as written, it was competent to prove by the verbal declarations of Burgett, made contemporaneously with the execution of the contract, or prior thereto, that the support and maintenance were to be provided at the house of the mortgagor; and 3. That the commencement of the suit by Burgett to set aside the conveyance was an abandonment and repudiation of the contract by him, which excused further performance of it by Tuttle.