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Paterson v. Railway Co.

jury, the trial judge at the request of the counsel for the defendant, and over the exception of the counsel for the plaintiff, gave to the jury certain special instructions on this point. The first was: "If the jury finc from all the evidence in the case under the circumstances that existed at the time of the accident, that a careful, prudent lady would have gathered up her dress skirts, and thus prevented them from either being caught or dragged on the platform of the car, and that the plaintiff failed to observe this caution, and the failue to do so was the approximate cause of her injury, she can not recover, and your verdict must be for the de fendant.'

Waiving the question, in a case like this, where there was no issue raised between the parties as to any contributing negligence on the part of the plaintiff, whether the charge so given to the jury does not lay down the doctrine that a failure on the part of the plaintiff in this case to gather up her dress skirts, if a careful and prudent lady would have done so, was negligence as a matter of law, and would prevent a recovery by her, was proper, we think it very clear that the plaintiff was entitled to have the court give to the jury, the special charges which were asked by her counsel, after the foregoing charge had been given the jury, but the court refused to do so. The charges so asked by the plainti were these:

"First. It might under some circumstances be controry neg gence for a woman to permit her dress to trail upon the platform of a street car when she was alighting, but this would be true only where there were facts and circumstances surrounding her which she had knowledge of, or ought by the exercise of common and ordinary care to have knowl edge of, which should cause her to apprehend danger in permitting her dress to trail."

"Second. If the plaintiff was exercising ordinary care when she was leaving the car, and had no cause to apprehend danger in permitting her dress to trail, she was not guilty of contributory negligence in so permitting it."

We see no good reason for the refusal by the court to give these charges to the jury. They state the law correctly, and had not before been given in substance, and if the charge given at the request of the defendant's counsel was proper, which is very questionable, the limitations contained in the charges asked by the plaintiff, should have been made. For is it possible that the law will make the doing of an act, entirely proper in itself and almost universally practiced, an act of carelessness on a particular occasion, when there were no facts or circumstances which she had knowledge of, or which in the exercise of common or ordinary care she ought to have knowledge of, which would cause her to apprehend danger from doing so?

If the injury to the plaintiff was caused by reason of the fact that her dress was caught upon the step of the car, either from her own negligence or want of ordinary care, or while she was in the exercise of proper care, and there was no negligence on the part of the company, this of course would only be an accident or misadventure, and she would have no right of action against any one. But if she was entirely free from negligence or fault, and the company was negligent, and thereby caused the injury, it would be liable. It was then a very important question for the consideration of the jury, whether the plaintiff was negligent in allowing her dress to trail, and if she was at the time "exercising ordinary care in alighting from the car, as the charge asked for assumed, she could

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Hamilton Circuit Court.

not have been guilty of contributory negligence in this respect, so as to prevent her recovering a verdict in the case, if negligence on the part of the company was shown in starting the car before she was free from it, and the injury was thereby brought about.

The plaintiff asked the court to give other special charges to the jury, which were refused. One of them was this:

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'The plaintiff was not bound to apprehend carelessness upon the part of the defendant. She had a right to rely upon the defendant having its platform in good condition, and free from obstacles of an unusual character upon which her dress might catch. She was not bound to apprehend that the conductor might start the car while her body was in contact with it, or until she was free from it and had reached a position of safety. She was not bound to apprehend that she might do anything that would place her in jeopardy. On the contrary, she had a right to place full reliance on the defendant doing its full duty towards her, and exercising the high degree of care which the law requires of it."

It seems to us that this is a clear, concise and correct statement of the law applicable to this case, and that it was error to refuse it.

There is another matter in which it is claimed that the court erred to the prejudice of the plaintiff. As has been stated, the claim was made by the plaintiff that her fall was occasioned by the negligence and carelessness of the conductor, in catching her dress or in permitting it to be caught in the door, while she was on the end of the car and at the east side of the car as it then stood, or upon the platform or step of the car, and in starting the car before her dress was free, and that thus her feet were drawn from under her, and she was thrown to the ground. There was no direct testimony, we think, from any witness showing how or on what the dress caught, if such was the fact. The conductor expressly denied that he shut the door upon it, or that it was caught in the door, or on anything on the platform or step, or that there was anything on the platform or step that could catch it, and he denies that he stepped upon it. And yet there was proof of facts which strongly tended. to show, that in some unknown manner it had caught somewhere, and in consequence of the starting of the car she was thus hurled to the groun 1.

On this state of fact the court, at the instance of defendant's counsel, gave the following charge to the jury:

"The jury are instructed that this case is to be determined upon the facts offered in evidence, and not upon any theory advanced to explain circumstances; that is to say, that before the plaintiff shall be entitled to a verdict for any amount, the evidence must satisfy the minds of the jury that the defendant, its agents or employees had carelessly and negligently maintained or permitted some obstruction to be on or upon the platform or step of said car, whereby the dress of the lady in the act of leaving the car would be caught. The evidence must prove this fact. If it does not, and the defendant, its agents or employees, not being otherwise negligent in the discharge of their duty, and the plaintiff herself, in leaving said car carelessly neglected, in the exercise of ordinary care to handle or take care of her dress skirts, and such negligence or carelessness of the plaintiff was the approximate cause of her injury, she can not recover, and your judgment should be for the defendant."

And thereupon the counsel for plaintiff asked the court to charge the jury as follows:

The plaintiff in this case claims that her dress was held in some

City of Defiance v. Wilhelm.

way upon the platform of the defendant's car, and that the conductor negligently started the car while it was so held. If it was held upon the platform or step by some object or force, that is a separate and independent fact, and if you think the evidence justifies you in finding such to be the fact, you may do so, without determining how or by what it was held."

This the court declined to give.

This we think should also have been given. The vital questions on this point were these: Was the dress so held in any manuer, and if so, was the conductor negligent in starting the car before her dress was free, and did this cause the injury? The manner or way in which it was caught, was in this point of view not material, and if the evidence justified the jury in finding that it was so caught or held, and that while so held the conductor negligently started the car, it was not cssential to a finding in favor of the plaintiff on this point, that the jury should know or find how it was held.

A majority of the court is also of the opinion that the verdict of the jury was against the weight of the evidence, and for the reasons stated, the judgment will be reversed, and a new trial awarded.

Prescott Smith, Attorney for Plaintiff.
Miller Outcalt, Attorney for Defendant.

MUNICIPAL CORPORATIONS.
[Defiance Circuit Court, March, 1896.]
Seney, Day and Price, JJ.

CITY OF DEFIANCE V. Wilhelm.

1. DUTY TO KEEP STREETS AND PUBLIC WAYS IN A SAFE CONDITION.

A municipal corporation is, under the provisions of section 2640, Revised Statutes, required to keep the streets and public ways in a safe condition, free from obstructions and nuisances; and if it neglect that duty, and a citizen is injured without fault on his part, the corporation is liable.

2. DUTY OF ABUTTING LOT Owner to Keep Public WAYS IN SAFE Condition. It is not the duty of a private person, who owns a lot abutting on a public way in a municipal corporation, to keep such public way in a safe condition, and such owner is not liable in damages for a mere omission on his part to repair and keep the streets or walks in a safe condition for public travel, either in the first instance to the party injured, or, in the second place, to the municipal corporations which has been required to compensate the injury.

ERROR to the Court of Common Pleas of Defiance county.

DAY, J.

It appears from the record of the case that the plaintiff filed an amended petition setting forth facts upon which it based a right of recovery, over, against the defendant. A general demurrer was interposed, and sustained by the court, and the plaintiff not desiring to amend the petition, or further plead, the court dismissed the case and entered judgment for costs against the plaintiff. This action of the court is complained of and is sought to be reversed by a proceeding in error in this court. The single question presented is: Did the court of commou †Reversed by Supreme Court, opinion 58 O. S., 56.

Defiance Circuit Court.

pleas err in sustaining the demurrer to the amended petition? The facts stated in the amended petition are, in substance, as follows: One Martha L. Sammis was injured on a sidewalk of a street of the city upon which defendant's lots abut, by reason of a defective and dangerous place in said walk; that she brought suit against the city on account of such injury, and recovered a judgment of some $1,500 as damages therefor, which judgment, and the costs accruing, the city has discharged and paid; that defendant, as owner of said abutting lot, assumed and was charged with the duty of constructing a safe and proper walk along said abutting lot, and did construct a walk there, but did it unskillfully and carelessly, wrongfully using unfit and defective material, so that, in fact, he created a defective and dangerous place in the public way, and negligently and wrongfully omitted and failed to guard or give notice of said dangerous place, by light or other signal of danger, or otherwise, by reason of which wrong and negligent acts and conduct of defendant, the injury to Mrs. Sammis, for which the city was required to respond, was occasioned. The prayer was for a judgment over against the defendant.

The law touching the liability of municipal corporations, and of individuals, for injuries resulting from a failure to discharge a duty, is well settled by the repeated adjudications, and there can be and is very little, if any, difference of opinion among lawyers as to what the law is. Counsel for defendant in his statement of his view of the law on this subject, is, in the main, if not entirely, accurate. A municipal corporation is, by statute, section 2640, Revised Statutes, required to keep streets and public ways in a safe condition, free from obstructions and nuisance; and if it neglect that duty, and a citizen is injured without fault on his part, the corporation is liable. This rule does not obtain as to owners of lots abutting on a public way. Such owner is not charged by the law, with a duty of keeping the public way in a safe condition, and is not liable in damages for a mere omission on his part to repair and keep the streets or walks in safe condition for public travel. The abutting lot may be, and is, liable to a certain extent, for the cost and expense of improving and repairing the public way, but there is no duty resting on, or liability against, the owner, other than such cost and expense, merely because he is the owner of an abutting lot. It is believed, on reason and authority, that for a passive omission to repair the public way, and keep it in a safe condition for public use, a private person cannot be held to respond in damages for an injury resulting from an obstructed and unsafe condition of the way, either in the first instance to the party injured, or, in the second place, to the municipal corporation which has been required to compensate the injury. This is the purport and extent of the holding of this court in the case of Sammis v. Wilhelm, reported in 6 C. C. Rep., 565, and referred to by counsel for defendant as settling the case. We have no occasion occasion to quarrel with the holding in in that case. Judge Seney is still found dissenting to the doctrine promulgated there, but the majority of the court now, as then, approves the decision. But we think that case, and the one now under consideration, is easily distinguishable. The facts of the two cases are not similar. In that case the defendant was only charged with passive conduct. It was said he omitted to keep the sidewalk in repair and safe, and Mrs. Sammis was injured by reason of it. It was also said that, "then and there and for a long time prior thereto, it had been the duty of defendant to keep said sidewalk in safe condition." This last statement was regarded as a conclusion of law,

Wolf v. Coddingion.

and not the statement of a fact, and the court very properly, upon the facts stated, held defendant was not liable, and sustained a demurrer to the petition. The allegations of fact in the case under consideration are entirely different. It is charged the defendant was active in the matter; that he assumed the duty of repairing the walk and engaged in the work of repair; that he negligently and wrongfully used defective material, and unskillfully performed the work of repair, and by his pernicious activity, affirmatively succeeded in creating and erecting an unsafe and dangerous place, and carelessly left it unguarded, by reason of which active wrong Mrs. Sammis was injured. Under that state of fact, clearly established, defendant would be liable to the injured party, without regard to the fact of ownership or non-ownership of abutting property, and whether the duty requiring him to exercise and use ordinary care was cast upon him by express provisions of the statute or otherwise. He would stand upon the plane of every other active wrong-doer-every other carele ́s and negligent person-and be made to respond in damages for injuries resulting from his wrongful acts and conduct. In such case, we think, he would be liable directly to the injured person, and if the municipality by reason of the duty imposed by statute is first called upon to male compensation to the injured person, it would be entitled to a judgment over against the person who was the prime cause of the injury

The sustaining of the demurrer to the amended petition was error for which the judgment of the common pleas is reversed, with costs. This court overrules the demurrer, and remands the case to the common pleas for further proceeding according to law.

PRICE, J., concurs.

SENEY, J., dissents.

E. Laity, City Solicitor, for Plaintiff in Error.
H. Newbegin, for Defendant.

APPEALS.

[Butler Circuit Court, January, 1896.]

Smith, Swing and Cox, JJ.

WOLF V. CODDINGTON.

APPEAL NOT CUT OFF BY SALE PENDENTE LITE.

The conveyance of real property, the title of which is in dispute in the action, by a defendant to his wife, during the pendency of the suit, does not deprive him of his right to appeal from a decree that he has no title.

APPEAL from the Court of Common Pleas of Butler county.

On motion to dismiss appeal.

SMITH, J.

We think it clear that Coddington had a perfect right to appeal this case, and to bring into this court all of the parties to the action, and that the case stands for hearing here upon all the issues made in the court of common pleas. At the commencement of the suit the legal title to the real estate in question was in Coddington. The action was brought by Wolf claiming that he, Coddington, had not the absolute title thereto, but

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