Bonds-Building and Loan Associations.
length therein, requires that the bond be read in connection with the orig- inal contract. Ib.
The surety on the bond of a build- ing contractor, the bond being given with the written contract between the contractor and the owner of the building to furnish both labor and material for the erection thereof, and made part of it, must be supposed to have executed the bond with full knowledge of the terms of the con- tract and it is no defense, upon de- fault of the contractor for both labor and material, that the application for the bond called for carpenter work only and specified the contract price as $4,520, that the building expert examined the specifications and es- timated the cost of the labor to be $4,700, and that it was upon such re- port that the risk was accepted and the bond given. Ib.
A surety company having had its expert make an estimate of the value of the work which its principal had undertaken to perform, and who might as easily have made an esti- mate of his entire obligation, and who had the means of knowing his full obligation and his liability to default, and having made the build- ing contract a part of the bond, can- not exempt itself from the payment of the penalty of the bond upon the ground that the bond was obtained by fraud in this, that the payee or her agents knew that the contractor accepted the contract at too low a price under a mistake known to the payee, and it appearing that the arch- itect regarded the bid as too low, which fact was suggested to the con- tractor, although he still felt confi- dent he had made no mistake. Ib.
The court having charged, that, if the plaintiff, directly or indirectly, prevented the contractor from con- tinuing the contract, no recovery could be had upon his bond, and the Jury having found the fact for the plaintiff, though the evidence was quite strong the other way, the judg- ment will not be reversed upon re- view. Ib.
A bid for school bonds, interest and principal payable in New York, offering par, "the accrued interest to date" and premium, in response to a circular letter stating that "no bid for less than par and accrued interest to date of delivery would be
It is the duty of county commis- sioners to provide guard rails along the entire length of approaches to county bridges, and they are officially liable for injuries caused by reason of their failure so to do. Snowden v. Bader. 335
A bridge is not a part of a street within the meaning of Sec. 4906, Rev. Stat.. requiring county com- missioners to keep in repair all parts of roads within municipal corpora- tions to a point where the streets have been curbed and guttered. Dayton v. Harmon. 574
The general provision of Sec. 2640, Rev. Stat., as to supervision and con- trol of all public highways, streets and bridges within the corporate limits is qualified by Sec. 860, Rev. Stat., and also by Sec. 4938, Rev. Stat. Ib.
Liability of the city of Dayton, under Sec. 2824, Rev. Stat., and Sec. 1707d-4, 89 O. L., 102, and Sec. 4906, Rev. Stat. Ib.
See also EASEMENTS; NEGLIGENCE
The action of a conductor on a street car in ejecting a passenger while the same is in motion, cannot be justified upon the ground that the passenger refused to pay his fare, and his conduct was objectionable, and especially if the passenger was in the act of getting out his money to pay his fare when he was put off; and the passenger, in such case. would be entitled to recover if he received greater injuries by being put off while the car was in motion than he would have received from being ejected when it was standstill. Cleveland City Ry. Co. v. Roebuck. 262
Where a shipper delivers goods to a railway company in cars loaded and sealed by himself, and, for his own convenience, upon shipping re- ceipts prepared by himself, but con- ditioned that the goods were re- ceived "subject to conditions con- tained in the company's regular bill of lading," and has an opportunity to see the bill of lading if he wishes, he is bound by the valid conditions in such regular bill of lading, whether he knows them or not. Cincinnati, H. & D. Ry. Co. v. Berdan & Co. 481 A condition in a bill of lading limiting the railway company's com- mon law liability, in respect to loss by fire, to fires caused by its own negligence, is not against public policy nor invalid.
delivery of the grain to and recep- tion thereof by the carrier. Ib.
Where one railway company re- ceived grain at a certain place and agreed to deliver it to a connecting line, which it did, when by the terms of the contract its responsibility was to cease, and such connecting line was to be responsible for loss on its own line, in the absence of evidence showing that the grain was lost by the connecting road, no action lies against either road for the loss of the grain. Ib.
Section 3573, Rev. Stat. a general law, changing the distance from a dwelling house at which the location of a cemetery was fixed from 200 yards to 100 yards after the plain- tiff had acquired her property and made improvements thereon, cannot be construed as an infringement upon her vested, rights, especially where such modification might reasonably have been anticipated as to land ad- joining the cemetery which was al- ready established in a rapidly grow- ing town. Morlock v. Horstman.
A restriction as to the location of cemeteries which was considered reasonable when it was adopted may be removed or modified when neces- sity or circumstances demand it, as the wisdom of the legislature may determine. And it is not unreason- able to require such modification to be anticipated as to land adjoining cemeteries established and in use, by persons locating near a cemetery in a rapidly growing town; and that the denomination using the ceme- tery would naturally incline to add adjoining land when more burial space became necessary. Ib.
Under the foregoing rules, one who purchases property adjoining and several years after the location and establishment of a cemetery of a religious society and builds a house 1602 feet from the nearest lot therein and makes other improve- ments is not entitled to an injunction to restrain such society from using for cemetery purposes, land pur- chased by them adjoining the ceme- tery, where the part to be so used is more than 100 yards from plaintiff's dwelling as provided by Sec. 3573, Rev. Stat., although the addition thereto adjoins her land and its boundary line is less than 100 yards from her house. Ib.
The court having given special charges as requested after the close of the evidence and as authorized by Sec. 5190, Rev. Stat., is not prevented from treating the same subject in a general charge, but it is manifestly contrary to the statute for the court in a general charge to repeat the special requests and then proceed to qualify, modify or in any manner explain the same Rupp v. Schaffer. 154 A charge should be construed as a whole and the fact that in an action for death from defective machinery, a special paragraph of the charge, standing alone, does not completely state the law, as where it omitted to indicate that in order to relieve the servant of contrbutory negligence or assumption of risk it should appear that the master promised to repair the machinery, etc., a verdict will not be disturbed if the trial judge in other parts of the charge correctly states the law in that particular. Ib.
Where, in an action against an electric railway company, there was no allegation of negligence in fail- ing to lower the life guard, the ad- mission of evidence tending to show that the life guard with which the car was equipped was not lowered, and a charge of the court in rela- tion thereto, by which the jury were permitted to base their verdict on such negligence, constitute Cleveland, P. & E. Rd. Co. v. Nixon. 79
Section 5190, Rev. Stat., confers on parties the right to have instruc- tions requested in writing given to the jury before argument, and a re- quest, if a correct statement of the law and pertinent to the
should be given and the refusal to give it is error, notwithstanding the request is an abstract proposition of law and requires construction as to its application. Ib.
In an action against a street rail- way company for the wrongful death of a person while riding a bicycle between the tracks of said company directly in front of one of its cars, a charge that the liability of such com- pany depended on the fact that there was a failure of the motorman to stop the car after discovering the peril of the decedent is misleading and improper where there was no such issue made by the pleadings.
A charge in an action for personal injuries, that if plaintiff "knew or could have known" of the defects in the machinery and the dangers to be encountered in the work, he was guilty of negligence in performing it, imposes too great a burden upon such plaintiff, in that it makes him responsible for what he might have known by the exercise of extreme, instead of reasonable, care. Gen- sen v. Oil Co.
In order to make a charge that if plaintiff "knew or could have known" of the danger to be incurred prejudicial or applicable to defects and consequent dangers not admit- ted or appearing to have been within plaintiff's knowledge, it must appear that such defects were the proxi- mate cause of the accident. A mere causal connection, unless there is also a natural and unbroken sequ- ence, and absence of intervening causes, is not sufficient.
But where it clearly appears, from the evidence or from plaintiff's ad- mission in such action, that plain- tiff knew of the defects in the ma- chinery and the dangers to be ap prehended in the work, a charge that if plaintiff "knew or could have known" thereof, he could not re- cover, though objectionable, cannot be regarded as prejudicial or rever- sible error. Ib.
A charge which correctly submits the case to the jury is not erroneous by repetitions unless they are clearly unnecessary and made for the pur- pose of emphasis or to influence the decision. If the parties desire more specific instructions upon questions complained of, requests should be presented, and in the absence of such requests the objections are not avail- able on error. Pittsburg, Cin., Chic. & St. Louis Ry. Co. v. Moreland. 612
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 con- stitute negligence on the part of the defendant. In like the judge should say to the jury, that the facts claimed by the defendant, if found to be true, do or do not con- stitute contributory negligence; and as every case turns upon a few con- trolling facts, the attention of the jury should be called to these con-
trolling facts with instructions to return their verdict as they shall find these facts to be. Io.
It is error for the trial judge to submit a proposition to the jury which is not presented by the evi- dence. Lake Shore & M. S. Ry. Co. ▼. Bixler. 653
A general statement in a charge that "according to the rules of the company the train is controlled by the engineer and brakeman, who are fellow servants" would be mislead- ing and erroneous in a case where it appears that the train generally is under the control of the conductor. though for the purpose of manage- ment, so far as speed is concerned when running or shutting down, it is almost exclusively under the con- trol of the engineer and brakeman.
A charge, in an action by a brake- man for injuries resulting from be- ing obliged to jump from a freight train to avoid a wreck caused by running into a place where rails had been removed, that "if they negli- gently suffered the train to go at a high rate of speed on this descend- ing grade the plaintiff cannot re- cover," been would have ranted where there was no evidence to show that he train was running at an unwarranted rate of speed in view of the fact that the persons in charge thereof knew nothing of the danger ahead of them.
the instruction could have no appli- Ication to the issues made by the pleadings. would have been im- proper. Ib.
An instruction that "there is no evidence tending to show that de- fendant was guilty of negligence in any of the respects charged in plain- tiff's petition in running its car at the time and place and under the circumstances of this case prior to the time that the motorman discov- ered or by the use of ordinary care might have discovered the fright of the horse," where the negligence was subsequent thereto, is within the rule stated in the preceding par- agraph.
In an action against a railway company for personal injuries sus- tained by a brakeman in passing under a bridge, where there is no allegation as to the duty of defend- ant to give notice that the bridge was too low or that the cars were too high to permit a brakeman to pass the bridge in safety, a charge that it was the duty of the company to give such notice is improper, it be- ing a violation of the express rule that recovery can only be had for the negligence alleged. Lake Shore 559 & M. S. Ry. Co. v. Beckwith.
The fact that fifty trains a day with their usual complement of men passed a standpipe for several years without injury will not relieve a railroad company from the charge of negigence, if, in fact, the standpipe was constructed so near the track as not to afford reasonable safety to employes in the performance of their duties; and it would be mis- leading to charge the jury that such use and freedom from injury would constitute a reasonable test that the company might continue to use it without imputation of negligence. Lake Shore & M. S. Ry. Co. v. God- win. 537
An instruction to the jury. in an action for injuries alleged to have been caused by the proximity of a standpipe to the railroad track, that the railroad company "had the right to commit the construction and Ioca- tion of its standpipes to its engineer or superintendent of construction; and this fact is not abridged by the fact that it might have been safer to its employes if the standpipe had been placed farther from the track; nor by the fact that the jury may differ with such engineer or super- intendent as to the proper location
Charge to Jury-Concealing stolen goods.
CHARGE TO JURY-Continued. of such pipes," might have been mis- leading. Ib. Instructions to the jury, in an ac- tion for personal injuries, respecting the duty and liability of the railroad company as t foreign cars, where no claim of negligence in that re- spect was made, would be in the nature of abstract propositions not demanded by the issues and though correct as abstract propositions, were properly refused.
A charge, in such case, that "if the jury should find from the evi- dence that brakemen were accus- tomed between stations to descend the ladder of a car to examine whether boxes were heated, at places where no obstructions were in sight or to be expected, that fact would not justify the plaintiff in so expos- ing himself while passing stations, when he knew he was passing sta- tions," assumes a fact, that a per- son would be in danger on the cars of the company in the discharge of his duties, and was properly refused.
Where, in an action to foreclose a chattel mortgage executed to secure the balance of the purchase price of a piano, payable in installments, it appears that the entire contract is expressed in the mortgage; that neither in the mortgage nor in the averments of the cross-petition, al- leging the retaking of the without tendering any part of the sum paid and praying for judgment for fifty per cent. of the amount paid thereon, it appears that the sale was conditional or that the title to the piano was to remain in the vendor until the purchase price, or any part thereof, was paid, such transaction cannot be considered a conditional sale within Sec. 4155-2, Rev. Stat., so as to bring it within the provi- sions of Sec. 4155-3, Rev. Stat., re- quiring the refunding of at least fifty
CONCEALING STOLEN GOODS-
Evidence that a person charged with receiving and concealing stolen goods made an unsuccessful at- tempt, by an offer of money, to dis- suade an officer in search of certain stolen property from searching the premises where the property was concealed, may be competent as tending to show that the accused was in fact concealing the property, but is not sufficient in and of itself to constitute the offense. Vanimmons v. State. 345
An attempt to cover up by the use of words instead of materials cannot be more potent in accomplishing an infraction of the law. It is not nec- essary that the offender should be successful in any degree or for any period in concealing the property. but he must in some measure suc- ceed in accomplishing the act that he designed to effect the conceal- ment. Ib.
Under foregoing rules, a charge that "words are deeds," and that if accused "had knowledge of that fact (the theft) and having that knowl- edge, that he did or said anything to the officer holding the warrant, which was calculated and intended by him to prevent the search for his property," he is guilty, is erron- Ib.
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