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the particular case under consideration requires. We therefore sustain the Court of Appeals judgment upon this branch of the case.

deal with the proposition. We are of the | is sustained by that weight of evidence which opinion that upon principle it was not error to receive this testimony and to permit the same to be considered by the jury, in the absence of any objection on the part of defendant's counsel, and, after a diligent search, we are not able to find any authority which imposes upon the trial court the duty of making objection to such questions, without objection on the part of counsel, or to exclude the same from the consideration of the jury without any motion to that effect. It must be conceded that the testimony of Helen Ruch was material to the issue, but, on the other hand, we are of the opinion that the failure to object at the proper time amounted to a waiver of the rights conferred by the statute.

Authority upon this point is meager. The
Ohio courts have never met the question.

The case of Blake v. Graves, 18 Iowa, 312,
held that the wife might testify for the hus-
band with his consent notwithstanding the
statutory provision that "the husband or wife
shall in no case be a witness for or against
the other, except. * *
The homicide
case of State v. Turner, 36 S. C. 534, 15 S.
E. 602, construed the statutory provision
that "no husband or wife shall be compel-
lable to disclose any confidential communica-
tions made by one to the other during their
marriage," and held that this provision could
be waived.

It is further contended that the proof does not measure up to that standard which is required to sustain a conviction in a perjury case. The proof required in a prosecution for perjury is somewhat stricter than in prosecutions for other crimes, and is stated in the case of State v. Courtright, 66 Ohio St. 35, 63 N. E. 590, as follows:

"It is a general rule, that to warrant a conviction under an indictment for perjury, there should be at least one witness to the corpus delicti, or the falsity of the matter assigned as perjury, and that the testimony of such witness be corroborated, either by another witness, or by circumstantial evidence sufficiently strong to satisfy the jury beyond a reasonable doubt of the guilt of the accused."

[5] The last question presented by this record, and one which has received the earnest consideration of the court, is whether the record shows that the alleged false testimony which is the basis of the perjury prosecution was "material matter in a proceeding before a court, tribunal, or officer created by law." The language of the Perjury Statute, section 12842, is:

"Whoever, either orally or in writing, on oath lawfully administered, willfully and corruptly states a falsehood as to a material matter in a proceeding before a court, tribunal or officer created by law, or in a matter in relation to which an oath is authorized by law is guilty of perjury.

The indictment alleges that the alleged false testimony was given "in a certain proceeding for contempt of court for the violation of an order of the common pleas court of Ashland county, Ohio, in a certain divorce and alimony action then pending in the court of common pleas of said county, wherein Helen Ruch was plaintiff, and Herman G. Ruch was defendant."

It appears, therefore, in the allegation of the indictment, and it was also clearly shown in the proof, that the divorce and alimony action was still pending, final entry not yet having been filed, and it further appears by an exhibit to the record that Ruch was summoned to appear to give testimony in a divorce and alimony case, the citation bearing the caption of that case. It is sought by counsel for Ruch to confine the proof to a proceeding for contempt entirely segregated from the action for divorce, and it is claimed that the allegation of the indictment justifies such a construction. It appears in the oral testimony, though not by any exhibits filed in the case, that the decree of the court had been orally announced, and that certain personal property was awarded to the wife. It further appears that immediately after this oral award, and before the decree could be journalized, the defendant disposed of the property. It therefore seems entirely proper that the court should again set down the matter for hearing in order that a different decree might be rendered which would do justice to the wife out of other property, inasmuch as it seem

We have carefully examined this record and find that, even measured by this standard the testimony appears to sustain this conviction. The charge of the court upon this point was above criticism, and the jury having the matter properly submitted to it, and having rendered a verdict of guilty, and the common pleas court having overruled that the personal property could not be ed a motion for new trial, and the Court of Appeals having affirmed the judgment, this court under the well known rule that it will not weigh evidence, is not justified in reversing a conviction which has been rendered and sustained by three separate tribunals, each of whom is not only authorized to but does in fact weigh and consider the evidence with

delivered to her. In this view of the case, Ruch was before the court in the divorce and alimony action which was still pending. If we should not adopt this view of the matter it would be necessary to consider whether a proceeding in contempt was then pending.

On this phase of the case, it is urged that

(146 N.E.)

section 12138, General Code, which requires [ gave testimony without objection or excepthat, in any proceeding for contempt not tion. He was represented by counsel, and committed in the presence of the court, a is therefore presumed to have been advised charge in writing shall be filed with the of his rights. He did not see fit at that time clerk, an entry thereof made upon the jour- either in person or by counsel to object to nal, and an opportunity given to the accused the alleged irregularities of a contempt proto be heard by himself or counsel. Counsel ceeding. He is therefore in the position of for the accused in the instant case on cross- having gambled upon the outcome of the examination developed the fact that no such matter then under inquiry, and as a part charges had been filed, and if this were a of the chances he took it is claimed that he proceeding in error from a judgment finding gave false testimony. the defendant guilty of contempt it would necessarily be found that the proceedings were irregular, and a conviction on the charge of contempt would be reversed. It does not however follow that such irregularities can be collaterally attacked, or that such irregularity would remove such a proceeding from the requirements of section 12842, General Code. The latter section does not require that the alleged false testimony should be given in a suit or action, but it is only necessary that it be given in a "proceeding."

It is evident that the Legislature intended great latitude in the character of the inquiry which should become the basis of a charge of perjury. "Proceeding" is a term of much broader signification than either suit or ac

tion. It has been broadly defined as any act done by the authority or direction of the court. The term as used in this statute should not be construed in any technical sense, but should include all methods of invoking the action of courts and embrace any controversy which may or may not rise to the dignity of a suit or action. While it must undoubtedly be an authorized proceeding in which the alleged false testimony is given, it does not follow that a prosecution for perjury must fail unless it be affirmatively shown that all the usual or even necessary steps were taken leading up to the taking of testimony. The indictment charges that a contempt proceeding was being heard. This is clearly an authorized proceeding. It was being heard by a common pleas court, and such a court clearly has jurisdiction of the subject-matter. The defendant was summoned by a writ issued under the signature of the clerk and the seal of the court, directed to and served by the sheriff under a "rule for contempt," to give testimony and to show cause why an attachment should not be issued. An attachment could only issue to enforce compliance with some order of the court theretofore issued, not as a punishment for failure to comply with such an order. The defendant responded to the writ, submitted to the administration of the oath' as a witness, and gave testimony which is alleged to be false. It cannot be successfully maintained that he thereby became a voluntary witness, but at the least, he was a regular witness and

The

It would be trifling with courts of justice, and would be putting a strained construction upon section 12842, General Code, to require proof of absolute regularity in all the steps leading up to the taking of testimony. We are of the opinion that there was more than a mere "proceeding" pending. record fairly shows that the testimony was taken in an action then pending in which the inquiry related to performance or nonperformance of an order theretofore made by the court in the same action; that that action had not been completely ended; and that the court was taking further testimony to determine whether there should be a modification of the decree which had theretofore been orally suggested. We are therefore of the opinion that the court did not err upon

that feature of the case. Having found no prejudicial error, the judgments of the lower courts must be affirmed.

Judgment affirmed.

JONES, ALLEN, and CONN, JJ., concur.

PENNSYLVANIA R. R. CO. et al. v. LIN-
DAHL. (Nos. 18563, 18571.)

(Supreme Court of Ohio. Dec. 16, 1924.)

(Syllabus by the Court.)

1. Railroads 337 (5)-Question of warning held material where guest in automobile was struck by train.

In the trial of a joint action for personal injury against a railroad company and the driver of an automobile arising out of a collision between the automobile and a freight train operated by the railroad company upon its right of way in a public highway, in which the plaintiff is the administrator of an invited guest who sat in the automobile at the time of the accident when there is no evidence fixing the time, if at all, the invited guest saw the train moving toward the crossing, it is not error for the court to refuse to charge the jury that "the question of notice or warning becomes immaterial if the driver of the automobile actually saw the train moving toward the crossing, for notice or warning is intended to bring to a person's attention that which he does not or cannot observe."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. Negligence 136(18) Where invited | been invited to ride with the defendant Cook, guest did not see train in time, submitting and was seated on the left side of the rear question of automobile driver's negligence seat of the automobile. Cook had also inheld proper..

In such a case where the testimony tends to show that the driver of the automobile actually saw the moving train in time to have avoided the accident, but does not show that the invited guest saw the moving train in time to have avoided the accident, it is not error for the court to submit to the jury the question of negligence on the part of the driver of the automobile.

vited one Mr. Wettig to ride with him, and
Wettig was seated in the front seat to the
right of Cook, who was driving. Lindahl
had nothing to do with the operation, con-
trol, or management of the automobile, and
was not familiar with the location and sur-
roundings of the intersection of Eighth
street and Eggleston avenue.
along

As Cook proceeded eastwardly
Eighth street a cut of freight cars, which was

Error to Court of Appeals, Hamilton being operated northwardly over Eggleston County.

Action by George H. Lindahl, administrator of the estate of Erick P. Lindahl, deceased, against the Pennsylvania Railroad Company and Ralph Cook. Judgment for plaintiff was affirmed by the Court of Appeals on separate writs of error by both defendants, and they separately bring error. Affirmed. [By Editorial Staff.]

avenue by the Pennsylvania railroad, approached the intersection of Eighth street and Eggleston avenue. The evidence in the record is to the effect that the freight cars were being operated at from six to eight miles per hour. There was testimony in the record to the effect that the train was moving very slowly as it approached Eighth street; that Cook also slowed down and changed gears and then drove upon the track in front of the train. On the other hand, there was other testimony to the effect that Cook did not slow down at all before crossing the track. Cook admitted that he saw the train at a time when it was 75 feet from the point of the accident and he was himself 100 feet from the track, and said that the train "was moving very slow as though to stop." He also said that he saw a man at the intersection who "look

The judgment obtained in this case was entered in the court of common pleas of Hamilton county, Ohio, upon a joint and general verdict in favor of the defendant in error against both plaintiffs in error. The action was brought by the defendant in error, as administrator of his father's estate, for the alleged wrongful death of his father which occurred on June 2, 1923, at which time the decedent met his death by being run over by a cut of cars operated by the Penn-ed like a railroad worker" motioning with sylvania Railroad Company.

Error was prosecuted by both defendants below to the Court of Appeals for the First Appellate District, where the judgment of the court of common pleas was affirmed against both defendants below. The facts as shown by the pleadings and the record are as follows:

approaching train.

his left arm, and explained his own action in crossing the track as follows: "I saw this man signal 'come on,' the train moving very slowly as if the train was going to stop, like they do there a number of times. As I pulled across the track the train started up. There was a chance which was going to get there first." The evidence on behalf of the Gilbert avenue in Cincinnati is an arterial railroad company was to the effect that the highway, being the main thoroughfare confreight conductor was in fact standing at necting the outlying portions of the east and the intersection, and that he warned the aunortheast sections of the city with the down-tomobile not to cross the tracks before the town section. At the time of the accident the outbound portion of the Gilbert avenue The automobile almost completely crossed viaduct was being repaired, and Gilbert the tracks before the train passed over Eighth avenue was impassable for vehicular traf- street, and was just grazed by the end of the fic. As a consequence, a portion of out- cut of cars. Cook was uninjured and the bound traffic was proceeding over Eighth automobile only slightly damaged, the fender street alongside the north edge of the via- and the extreme rear portion of the tonneau duct, across Eggleston avenue, coming back being slightly dented. Immediately before onto Gilbert avenue some distance east of the train grazed the automobile, and while the viaduct. The viaduct itself crosses over on the tracks, both Wettig and Lindahl Eggleston avenue and is 75 feet in width. jumped from the machine. Wettig jumpEggleston avenue is a public highway run-ed from the right front seat of the automoning in a general north and south direction, bile, and Lindahl leaped out of the left rear upon which the Pennsylvania Railroad Company operates a system of tracks. Eggleston avenue intersects with Eighth street, which runs generally east and west.

side, alighting some distance away from and north of the automobile. There was evidence in the record to the effect that Lindahl started to get up and the train was so At the time in question the decedent had close upon him that it again knocked him

(146 N.E.)

down. The end of the first car struck Lin- [ drivers of vehicles which drove across the dahl, and killed him. tracks.

The case comes into this court upon allowance of motion to certify the record.

Maxwell & Ramsey, Gregor B. Moorman, and Harmon, Colston, Goldsmith & Hoadly, all of Cincinnati, for plaintiffs in error. Clore, Schwab & McCaslin, of Cincinnati,

for defendant in error.

ALLEN, J. [1, 2] For the sake of brevity and clearness, the respective plaintiffs in error will be called the railroad and Cook, and the defendant in error's decedent will be called Lindahl, throughout the course of this opinion. The plaintiff's petition alleged three grounds of negligence against the Pennsylvania Railroad Company. These grounds are as follows:

"Plaintiff says that decedent's death was caused by the joint and combined negligence of the defendants, the Pennsylvania Railroad Company and Ralph Cook, Jr., in this, to wit: That the said Pennsylvania Railroad Company at the time aforesaid was operating said train of cars over said intersection (1) without having any watchman to warn the traffic on said Eighth street of the approach of said train; (2) and without giving any warning of the approach of said train by whistle, bell, or otherwise, and that said defendant the Pennsylvania Railroad Company after striking said automobile negligently and carelessly (3) failed to stop said train in time to have avoided running over and injuring said decedent."

Plaintiff in error cites no authority, and we have found none, in support of his contention that this rule should be extended to

a plaintiff who, so far as the record reveals, may never have seen the train before the moment he jumped from the automobile, and hence may not have had the knowledge which the ringing of the bell or the warning by the watchman was intended to convey. It is true that the record shows that Cook saw the train before he drove onto the track, and this fact would make the absence of the warning immaterial if Cook were bringing the action; but there is no evidence whatever that Lindahl saw the train when Cook saw it, nor any evidence as to the time at which he first saw the train, nor any evidence that he saw the train at all. He may only have heard it. The only evidence from which. it may even be inferred that Lindahl saw the train is his leap from the automobile.

In view of this fact we cannot say that these specifications of negligence should have been taken from the jury. The question whether or not the failure to give warning or to have a watchman present, caused or contributed to the death of Lindahl, under these circumstances, was a question of fact.

Plaintiff in error requested the court, at the conclusion of its general charge, to charge the jury as follows:

"If you find that Ralph Cook actually saw question of notice or warning becomes immatethe train moving towards the crossing, then the rial, for notice or warning is intended to bring to a person's attention that which he does not or cannot observe,"

The railroad claims that the first and sec ond allegations of negligence as to the absence of a watchman and as to the failure to give warning of the approach of the train by bell or otherwise became immaterial and irrelevant since Cook, the driver of the auto--and claims that the refusal of the trial mobile, admits that he saw the train approaching the crossing at a time when he could have avoided the accident, and therefore urges that the court erred in submitting these grounds of negligence to the jury.

court so to charge constituted reversible error. This contention is disposed of by our holding, made above, to the effect that it is not error for a trial judge to refuse to charge that the question of notice or warning is immaterial if the driver of the automobile actually saw the train moving toward the crossing in a case where the action is brought not by the driver of the automobile, but by an invited guest, who, so far as the record shows, may not have seen the train, if he saw it at all, until the moment of crossing the track.

If this action had been brought by Cook, the driver of the machine, there would be merit in the contention of the railroad, since it is the general rule that the omission to ring a bell or sound a whistle at a public crossing becomes immaterial when the plaintiff actually sees the train approaching the crossing in time to avoid the accident, and hence has the knowledge which the ringing The railroad also urges that the court erred of the bell or the warning by the watchman in submitting to the jury the third ground of is intended to convey. Pakalinsky v. N. Y. C. & H. R. Co., 82 N. Y. 424; Illinois Cent. R. R. Co. v. Dupree, 138 Ky. 459, 128 S. W. 344, 34 L. R. A. (N. S.) 645; Elliott, Adm'r, v. N. Y., N. H. & H. R. Co., 84 Conn. 444, 80 A. 283; 3 Elliott on Railroads (3d Ed.), p. 520.

The cases which uphold this rule in general arise out of actions for personal injury brought by persons who themselves walked across railroad tracks or were themselves

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negligence as to the failure to stop the train in time to have avoided running over and injuring the decedent, and claims that no evidence whatever was submitted to establish this allegation.

We cannot concede that the record discloses no proof that the crew failed to stop the cut of cars as quickly as possible. The evidence is conflicting upon many vital facts of the case. There is evidence in the record

Ralph Cook, also joined as plaintiff in error, urges that the judgment below should not stand, as he claims that Lindahl had the same opportunity as himself to observe the danger; that Lindahl gave no warning to Cook, that Lindahl did not jump until the automobile was actually upon the tracks, and hence was as negligent as Cook, if Cook was negligent.

Lindahl and Cook, however, were in different situations at the time of the accident. Cook was driving the machine, was familiar with the surroundings, and saw the train before he drove onto the track. Lindahl had no control over the machine and was unfamiliar with the surroundings, and there is no evidence that he had seen the freight cars, if he saw them at all, until just before he jumped from the automobile when it was actually upon the track.

to the effect that the train was moving very | prejudicial and reversible error. Ochsner, slowly before it crossed the intersection. Adm'r, v. Cincinnati Traction Co., 107 Ohio There also is evidence in the record to the St. 33, 140 N. E. 644. effect that both the engineer and the freight conductor saw the automobile approaching the track preparing to cross it. When the engineer first saw the automobile the cut of cars had not reached the viaduct. The record shows that the train could have been stopped within 15 to 18 feet. There is evidence in the record that the conductor, who stood at the intersection signaling, gave the train no signal to stop until the machine was within 4 or 5 feet of the train and started to go over the track. The conductor states that the automobile made him jump out of the way to avoid it, and that he gave no signal to the train to stop until about the same time that he jumped out of the way of the automobile. The record is conflicting as to whether the automobile slowed down immediately before crossing the track. Smith, the conductor, who was signaling, said that it stopped. French, the The argument of Cook amounts to a claim engineer, and Wettig who sat in the machine, that the negligence of Cook should be imthe other invited guest, beside Lindahl, said puted to Lindahl; that the negligence of that it did not slow down. If the automobile Cook was the negligence of Lindahl. Howdid not slow down it was a question of fact ever, the doctrine of imputed negligence does for the jury whether the employés of the not obtain in Ohio. Cincinnati Street Ry. railroad company were negligent in not Co. v. Wright, Adm'r, 54 Ohio St. 181, 43 N. stopping the train sooner than they did, E. 688, 32 L. R. A. 340; Toledo Rys. & Light since they had seen the automobile ap- Co. v. Mayers, 93 Ohio St. 304, 112 N. E. 1014. proaching the crossing in time to have stop- Hence, granting that Cook was negligent in ped the train before reaching the point of driving onto the track when he saw the train the accident. approaching the crossing, this negligence cannot be imputed to Lindahl.

Moreover, there is circumstantial evidence in the record which conflicts with the statement that the train was brought to a stop within from 12% to 15 feet. Hence we cannot say as a matter of law that there was no evidence to justify the jury in concluding that the railroad was negligent in not stopping the train within time to have avoided running over and injuring the decedent.

When Lindahl was confronted with the sudden emergency of finding himself in an automobile crossing a track upon which a train was bearing down, he was required to use only that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. It was a question of fact whether Lindahl saw the train in time to avoid the accident so far as he was concerned, and used the requisite degree of care, and that question was rightly submitted to the jury.

For the foregoing reasons, the judgment of the Court of Appeals is affirmed. Judgment affirmed.

Since counsel for the railroad company made no request to withdraw this issue from the jury upon the ground that there was no testimony to support it, since more than one issue was submitted to the jury, and since the court gave every special charge asked by the railroad company before argument, and since the verdict was general, even though there was no evidence concerning one of the alleged grounds of negligence, submission of this issue would not constitute concur.

MARSHALL. C. J., and ROBINSON, JONES, MATTHIAS, DAY, and CONN, JJ.,

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