by the public over the tracks of a railroad company, on which were passing trains making considerable noise, while he was on an errand, could have avoided the injury by the use of his faculties is a question for the jury. Lear v. Railway Co.
Where there is no evidence to the contrary as to a fact, and the parties have agreed in the trial of the case orally that it is the rule of the com- pany, or that a certain fact exists in the case, a party has no ground of complaint if the court says to the jury that they need not find on that question because the rule is in, or the fact is conceded, and the parties know what it is. Cleveland, C. C. & St. L. Ry. v. Hudson. 661
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. Pittsburgh, C. C. & St. L. Ry. v. Moreland.
In an action against a railway company for personal injuries al- leged to have been the result of care- lessly placing the plaintiff, a section hand, at work in a place where ice, which had accumulated upon a ledge or an embankment, fell, as a result of the jar of a passing train, which he had stepped aside from the track to avoid, and injured him, the ques- tion whether the recollection of a witness, as to what was said by the foreman as to the safety of the place, may be refreshed by an inquiry as to whether or not certain statements were made, is largely within the dis- cretion of the trial judge; and, par- ticularly where the answer could not have been material or prejudi- cial, his ruling will not be considered by a reviewing court. Pittsburg, Cin., Chi. & St. Louis Ry. Co. v. More- land. 612
The duty of determining the issues to be tried in a case devolves upon the court and should not be dele- gated to the jury and for the court to instruct the jury that they are to take the pleadings and determine the admissions, etc., therein, al- though the court has stated sub- stantially the admissions as under- stood by the court, is to virtually in- struct the jury to determine the material issues therein and ascer- tain if the court is correct in his statement thereof, and is erroneous. Lake Shore & M. S. Ry. Co. v. Beck- with. 559
Where, at a railroad crossing, a freight train stood on a siding, ob- structing a view of the main line for about seven hundred feet, the en- gine with steam up and making con- siderable noise, apparently about ready to start, and where train men stood at the crossing and saw plain- tiff 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. Cleveland, Cin., Chi. & St. Louis Ry. Co. v. Ivins. 570
Where, in an action to recover damages for breach of a contract for the sale of stock, plaintiff testified that some time after the sale he met defendant and asked him to take the stock, and defendant, on the wit- ness stand, stated that he had no recollection of meeting plaintiff, and denied that a tender was made, the question of tender or offer to per- form was properly submitted to the jury. Andrews v. Watson. 692
Whether a person, riding on a lumber wagon, on a board extending between the axles, sitting behind the driver but in front of the rear axle, having looked and lis- tened before attempting to cross a railroad track with which he was familiar, was negligent in remain- ing on the wagon and attempting to cross in front of an engine rapidly approaching, without warning or signal, the view of which was ob- structed, until the horse's forefeet were upon the track, and not more
than sixteen feet from such person, and the engine was not more than two hundred feet away, is a question for the jury. Wheeling & Lake Erie R. R. Co. v. Suhrwiar. 809
The question as to what is a rea- sonable time, between an accident and a change in appliance, machin- ery or construction, as determining the competency of such evidence, is a question for the judge and must be determined before the jury will be entitled to consider such evidence. Lake Shore & M. S. Ry. Co. v. God- win. 537 See also INSURANCE-LIFE; MAS- TER AND SERVANTS; VERDICTS.
A person receiving funds under circumstances above stated, having knowledge of their origin and char- acter, is not an innocent purchaser for value, and can be required at any time within six years of the receipt of the funds, to return the same to the executor of the estate, unless some special grounds of defense exist cutting off the right of the true owner or custodian. Ward v. Ward. 59
Where, upon the death of testa- trix, who devised the entire use of her estate to her husband for his life with remainder to her sons, after the payment of certain legacies to other heirs, her sons divided a cer- tain fund in the bank, then believing that it was theirs in accordance with a course of dealing with their mother by which they ran the farm and divided the proceeds thereof after paying all the family expenses, which the court, in an action against one of the sons as executor, adjudged to belong to the estate, the receiving and withholding of such mony by the other son creates a constructive trust in favor of the heirs and lega- tees, and all property into which such money can be traced is subject to such trust, where it is not held by an innocent purchaser for value. Ib. The rule, applicable in certain cases, that the cestui que trust must
When the court directs the jury to return a verdict for defendant, and the jury being polled one juror Isaid the verdict was not his verdict, the verdict is invalid. Eislein v. Palmer. 725
The court improperly directed the jury to return a verdict for defend- ant in an action for damages against a railroad company for the wrongful death of a child where the undis- puted facts do not show the negli- gence of the deceased and there is evidence tending to show negligence on the part of the company in fail- ing to stop its train. Lear v. Rail- way Co. 797
Where special findings, under Sec. 5201, Rev. Stat., are requested, it is the right of counsel upon the other side to make any argument which they see fit, or which the trial judge is willing to hear, as to the perti- nency of the questions; and such argument may be made in the pres- ence of the jury. Pittsburg, Cin., Chic. & St. Louis Ry. Co. v. More- land. 612
It is improper for counsel, after requests for special findings, under Sec. 5201, Rev. Stat., to make sug- gestions, under pretense of argu- ment, as to how such questions should be answered. If any direc- tion is given to the jury in respect to special and general findings, how they are to be taken up, etc., they should be instructed that they should
find the facts without any reference to who would be injured or helped thereby, and to then draw their con- clusions by way of a general verdict from all the facts. Ib.
It is not necessary that the request for special findings, under Sec. 5201, Rev. Stat., should be made before argument; it is sufficient if made afterwards, when no further argu- ment can be made except as to the propriety of the questions. Ib.
Where it appeared that many of the questions involved in requests for special findings, under Sec. 5201, Rev. Stat., related to matters which became immaterial or rrevelant under the general charge, and it also appeared that other questions were properly answered, the reviewing court declined to disturb the judg- ment notwithstanding the fact that the answers to the other questions were suggested by counsel and that the jury obviously followed such suggestions. Ib.
The verdict of a jury will not be disturbed on account of a clause in a charge which if given alone would have been wrong, where by a consideration of the entire charge it appears that the jury could not have been misled. Price v. Coblitz.
a motion to direct a verdict for de- fendant. Ib.
It would be improper for a trial judge to so direct a jury, in regard to the manner of making special findings, that the latter might be permitted to think that, for the purpose of sustaining a general ver- dict which they might desire to bring in, they would be permitted to make answers to special findings with a view, primarily, to their con- sistency with the general verdict. Rupp v. Schaffer. 154
A special finding by the jury an action for wrongful death, caused by a defective wheel, that the plaintiff's de- cedent did not know of the de- fect, is conclusive in a reviewing court, although it may be doubtful whether, had been the question asked, the jury could have found that by the exercise of ordinary care decedent would not have known of the defect; unless the finding is clearly against the weight of the evidence the verdict should stand, and particularly where the trial court directed the jury that such a finding was essential to a recovery by the plaintiff in whose favor it was rendered. Forrest City Stone Co. v. Richardson. 177
A verdict not manifestly against the weight of evidence will not be reversed, notwithstanding there may be considerable question as to whether it is right. C. & M. V. Ry. Co. v. Thompson. 326
A general verdict should stand un- less the special findings are neces- sarily repugnant to it. Wicker v. Messinger. 425
In an action on a building contract providing that payment shall be made upon architects' certificates in which the petition contains allega- tions that the architects, without justification, refused to furnish such certificates, a general verdict for the plaintiff is not inconsistent with special findings that the architects refused to furnish the certificates and that the reason for such refusal was "not satisfied with the work," inasmuch as such findings are not inconsistent with a determination by the jury that the view entertained by the architects was not justified by the facts. Ib.
A general verdict should be sus- tained unless it is clearly inconsis- tent with any theory provable under
Verdicts-Waters and Watercourses.
Where a man thirty-one years of age capable of earning $700 a year had both bones of his leg broken just above the ankle and shattered so that they did not unite for a long time, and from which he suffered severe pain and is incapacitated from performing manual labor requiring him to stand, and such injuries pro- duce paralysis of the bladder and rectum, a verdict of $10,000 is not excessive, especially where the in- juries are permanent, and notwith- standing the fact that in a previous trial within a few months after the injury occurred and before his con- dition was fully developed or the results thereof could be ascertained with practical certainty, a jury gave him a verdict for only $5,000. Weeling & Lake Erie R. R. Co. v. Suhrwiar.
confine the water therein for a lower riparian owner. Ib.
The right of riparian proprietors upon a natural water course, navi- gable or unnavigable, is property and valuable; and, although it must be enjoyed in due subjection to the rights of the public, it cannot be ar- bitrarily or capriciously destroyed or impaired. It is a right, when once vested, of which the owner can only be deprived in accordance with established law; and if necessary to be taken for the public good, upon due compensation. Deming V. Cleveland.
The act of February 9, 1893, 90 O. L., 34, amending the act of March 18, 1889, 86 O. L., 109, author- izing cities of the first class, second grade, to contract for dredging navigable streams within their limits for not exceeding five years, and providing that "the amount to be expended for dredging shall not exceed the current revenues for such purposes in each year" ope- rates, in respect to such contract, and in such cities, to remove, or is in substitution for, the limitation upon power to contract of Sec. 2702, Rev. Stat., as to certificates that money is in the treasury and unap- propriated. Sprankle v. Cleveland.
It was not intended by the act of February 9, 1893, 90 0. L., 34, authorizing cities of the first class, second grade, to make dredging contracts, the amount to be pended not to exceed current yearly revenue therefor. to authorize cities to enter into contracts for the im- provement of rivers which might re- quire the expenditure of a large sum of money to be raised only by in- curring debts. Ib.
Where plaintiffs, in the action above referred to, have a right to all of the water in such tributary stream, but for their present neces- sity use only a portion thereof, the order giving the defendants the ex- cess over that amount should not be a final order but one which may, upon thirty days notice to defend- ants and motion by plaintiffs, be modified or extended as future con- ditions may require. Turner V. Holly. 738
The rule that a city would be justified in taking water from a stream for domestic purposes under the law of paramount necessity, does
The primary or ordinary legal meaning of the words "or legal representatives" is that of "execu- tors or administrators," as words of limitation, and legacies under a will devising a life estate to the widow of testator and directing that all testator's property be sold and the proceeds divided equally among certain persons "or their legal representatives," vest at the death of the testator, and not on the ter- mination of the life estate. Thomp- son v. O'Dell. 396
A bequest in the form of a direc- tion to pay or to pay and divide at a future period, vests immediately if the payment be postponed for the convenience of the estate or to let in some other interest as, for in- stance, a life estate to the widow of testator. Ib.
The fact that the disjunctive "or" is used in gifts of personalty in a will devising to certain persons or their legal representatives, does not make the words following words of substitution, and, therefore, synony- mous with "next of kin," for the same construction applies to gifts of personalty as to devises of realty.
legal meaning, such as "legal repre- sentatives," being that of "executors or administrators," that is sense in which it must invariably be construed, unless the court is reasonably satisfied, by evidence collected from the will itself, of the testator's intention to use it in a different sense.
Ib. A testator is presumed to know that there are many things that may delay the settlement of his es- tate which could not be foreseen and to make his will with such un- derstanding. Perkins V. Perkins.
When property retained by the trustees is held by them absolutely without any income or right to it by the trustees and the income is properly added to the principal. Ib.
Though the parties acted in good faith and in the interests of them- selves and the grandchildren, agree- ment opposed to the specific provi- sions of the will cannot be enforced. Frank v. Archer.
Under such circumstances widow should be allowed such pro- portion of the income of the whole improved tract as the value of the ground on which the residence was situated, if unimproved, bears to the whole improved tract, without taking into consideration the value of the residence torn down; in bal- ance of the income neither the widow nor the children are entitled to share until the mortgage is paid. Ib.
Where such an agreement has been executed by the trustees and the residence torn down, the build- ing erected and the mortgage given, it is the duty of the court to so con- strue the rights of the respective parties under the will as to restore them as nearly to their former posi- tion as may be. Ib.
The legislature in Sec. 5971, Rev. Stat., providing that a devise or be- quest shall not lapse by the death of a devisee or legatee, used the term "residuary estate" technically, and it should receive its technical construction, especially where there is nothing in the statute indicating any other use thereof. Jewett v. Jewett. 131
Nor will the fact that testator died leaving debts of his last sick- ness make any difference in the con- struction of his will as to making the balance of his estate devised
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