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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 Ralph Cook, also joined as plaintiff in conductor saw the automobile approaching error, urges that the judgment below should the track preparing to cross it. When the not stand, as he claims that Lindahl had engineer first saw the automobile the cut the same opportunity as himself to observe of cars had not reached the viaduct. The the danger; that Lindahl gave no warning to record shows that the train could have Cook, that Lindahl did not jump until the been stopped within 15 to 18 feet. There automobile was actually upon the tracks, and is evidence in the record that the conductor, hence was as negligent as Cook, if Cook was who stood at the intersection signaling, gave negligent. the train no signal to stop until the ma Lindahl and Cook, however, were in difchine was within 4 or 5 feet of the train ferent situations at the time of the accident. and started to go over the track. The con- Cook was driving the machine, was familiar ductor states that the automobile made him with the surroundings, and saw the train bejump out of the way to avoid it, and that fore he drove onto the track. Lindahl had he gave no signal to the train to stop until no control over the mach and was unabout the same time that he jumped out of familiar with the surroundings, and there the way of the automobile. The record is is no evidence that he had seen the freight conflicting as to whether the automobile cars, if he saw them at all, until just before slowed down immediately before crossing the he jumped from the automobile when it was track. Smith, the conductor, who was sig- actually upon the track. naling, 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. Wrigot, 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 canMoreover, there is circumstantial evidence not be imputed to Lindahl. in the record which conflicts with the state When Lindahl was confronted with the ment that the train was brought to a stop sudden emergency of finding himself in an within from 1212 to 15 feet. Hence we can- automobile crossing a track upon which a not say as a matter of law that there was train was bearing down, he was required no evidence to justify the jury in conclud- to use only that degree of care which an ing that the railroad was negligent in not ordinarily prudent person would exercise unstopping the train within time to have avoid- der the same or similar circumstances. It ed running over and injuring the decedent. was a question of fact whether Lindahl saw

Since counsel for the railroad company the train in time to avoid the accident so made no request to withdraw this issue far as he was concerned, and used the reqfrom the jury upon the ground that there uisite degree of care, and that question was was no testimony to support it, since more rightly submitted to the jury. than one issue was submitted to the jury, and For the foregoing reasons, the judgment since the court gave every special charge of the Court of Appeals is affirmed. asked by the rai oad company before argu Judgment affirmed. ment, and since the verdict was general, even though there was no evidence concerning MARSHALL, C. J., and ROBINSON, one of the alleged grounds of negligence, JONES, MATTHIAS, DAY, and CONN, JJ., submission of this issue would not constitute concur.

(146 N.E.)

court to sustain the motion of the defendant JACKSON v. CLEVELAND RY. CO. for a directed verdict. (No. 18387.)

The judgment of the Court of Appeals and (Supreme Court of Ohio. Dec. 23, 1924.)

court of common pleas is reversed and the

cause remanded. (Syllabus by Editorial Staff.)

Judgment reversed. Carriers 320(25)-Evidence of defendant's

MARSHALL, C. J.,

and ROBINSON, negligence causing injury to passenger held to raise jury question.

JONES, MATTHIAS, DAY, ALLEN, and In action against carrier for injury to pas

CONN, JJ., concur. senger evidence that she received her injuries by defendant's negligent closing of exit doors of street car as she was in act of alighting held to raise jury question.

Error to Court of Appeals, Cuya hoga WALTERS V. BALTIMORE & O. S. W. RY. County.

CO. (No. 18555.) Action by one Jackson against the Cleve- (Supreme Court of Obio. Dec. 23, 1924.) land Railway Company. Judgment for de

(Syllabus by Editorial Staff.) fendant was affirmed by the Court of Appeals, and plaintiff brings error. Reversed. 1. Master and servant On 258(13)-Petition -[By Editorial Staff.]

held to state cause of action under doctrine

of res ipsa loquitur, so that it was error to Smith, Olds & Smith and Payer, Winch, dismiss for refusal to amend. Minshall & Karch, all of Cleveland, for Eliminating indefinite and uncertain averplaintiff in error.

ments, petition, alleging that engine of moSquire, Sanders & Dempsey, of Cleveland, tor car suddenly bursted and caused the same for defendant in error.

to suddenly jump from railroad track and throw plaintiff from car, held to state case of negli

gence under doctrine of res ipsa loquitur, and PER CURIAM. This case was tried up- dismissal for refusal to amend was erroneous. on the fourth amended petition, which aver

Discretion red, among other grounds of negligence, the 2. Appeal and error (ww960(1) following:

abused when petition dismissed because of al

legations not well pleaded. "That at the time herein complained of de

To deprive litigant of right to try cause fendant, the Cleveland Railway Company, well pleaded, because pleading contained cer

negligently, as plaintiff was in the tain matters not well pleaded, was abuse of act of alighting from said car and at or about discretion, and is controllable on appeal. the instant said collision occurred, closed or started to close the door of said exit, so that

Error to Court of Appeals, Vinton County. the same was forced against her in a violent and sudden manner, thereby causing or con- Action by Edward Walters against the tributing to cause her to be thrown against Baltimore & Ohio Southwestern Railway said farebox railing; and negligently failed and Company. Judgment for defendant was afneglected seasonably to warn or apprise plain-firmed by the Court of Appeals, and plaintiff that said collision was imminent and that said door was about to be closed in the manner

tiff brings error. Reversed and remanded.herein described.”

(By Editorial Staff.]

John E. Blake, of McArthur, for plaintiff The record of the testimony of plaintiff

in error. and several of her witnesses discloses evi

Otto E. Vollenweider, of McArthur, and dence tending to prove that she received her John P. Phillips, of Chillicothe, for defendant injuries, or at least a part of them, by the

in error. closing of the doors of the car against her, and that the doors were closed against her

PER CURIAM. This cause was begun in by the agent of the defendant company prior to the instant of the collision of the automo- the Common Pleas Court of Vinton county by bile with the car of the defendant company. the filing of plaintiff's petition, of which the

following is a copy: The plaintiff's evidence upon this issue, under the authority of the case of C. C. C. & “The plaintiff says the defendant is a corSt. L. Ry. Co. v. Lee, 111 Ohio St.

145 poration duly organized under the laws of the N. E. 843, the case of Pope, Adm'x, v.

state of Ohio, and doing business therein as a Mudge, 108 Ohio St. 192, 140 N. E. 501, the and operates a railroad running through Vinton

railroad company; that said defendant owns case of McMurtrie v. Wheeling Traction Co., county, Ohio; that on or about the 15th day 107 Ohio St. 107, 140 N. E, 636, and Vignola of November, 1920, and prior thereto the dev. New York Cent. Rd, Co., 102 Ohio St. 194, fendant company had in its employ various 131 N. E. 357, was sufficient to carry the workmen, consisting of section hands, foremen, case to the jury, and it was error for the and other employees, for the purpose of re

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

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pairing and taking care of the tracks of said “(1) By stating what other appliances of said
company in said county; that it also had mo car suddenly burst, as set forth at the bottom
tor cars, during the period aforesaid, propelled of the first page.
by the use of gasoline, and other equipments “(2) By stating in detail what other de-
for the use of said employees in such repair; fective conditions of said car caused the same
that on or about the 15th day of November to jump from the track.
and in the year 1920 the said plaintiff was in “(5) By setting forth what other defective
the employ of said defendant company as equipment plaintiff refers to in the same para-
section hand, whose duty it was to remove de- graph.”
cayed railroad ties from the tracks of said
company in said county, and do various other

Thereafter an entry was spread upon the
work in the repair of the said company's rail journal of the court as follows:
road tracks incident to his duties of such sec-

"April 27, 1923. This day this cause came on tion hand; that while in the performance of to be heard upon the motion of the defendant his duties as such section hand at the time to require the plaintiff to make his petition aforesaid the plaintiff was riding along the rail more definite and certain, and was argued by road track of said defendant company in said counsel and submitted to the court. county on a motor car of the said defendant

"Upon consideration thereof, the court doth company, and of the kind herein stated provid- find the first, second, and fifth branches of ed by it for the purpose of transporting him said motion well taken, and doth order the and other employees of said company along its plaintiff to make his petition more definite and said tracks to the place of their daily work on

certain by stating in detail what other defec. the said company's railroad tracks in said tive conditions of said car caused the same to county; and that, while riding on said motor jump from the track, and by setting forth in car as aforesaid along the said tracks of said detail what defects plaintiff refers to by the defendant company, the engine of the motor car on which he was then and there riding and the same appears in the second paragraph on

use of the words, 'defects of the engine,' as other appliances of said car suddenly bursted, the second page of said petition, to all of and this fact, in addition to other defective which plaintiff excepts." conditions of said car, caused the same then and there to suddenly jump from the rail And more than 30 days thereafter another road track and throw this plaintiff from said entry was spread upon the journal as fol. car, breaking two of his ribs, his arm, and in

lows: juring the bones of his shoulder, and producing many other injuries from which this plaintiff is “October 24, 1923. This day this cause came now suffering.

on for hearing on the motion of defendant, to “Plaintiff further states that the said disas- | require plaintiff to make his petition more defiter of the said motor car, consisting of its nite and certain, and the argument of counsel, jumping from the track and throwing the and on consideration whereof, the court doth plaintiff from the same, was produced solely sustain said motion, and leave is given plaintiff from the defects of the engine of said car to amend his petition, and, it now appearing then and there installed and other defective to the court that plaintiff refuses to amend equipments then and there in said car.

his petition, therefore the court dismisses the "Plaintiff further states that at the time of case at the cost of plaintiff. said injury and prior thereto defendant knew "October 23, 1923. Dismissed at costs of of said defective conditions of said car and, plaintiffs; the plaintiff having refused to amend notwithstanding the knowledge of said defects, his petition.” defendant permitted and required plaintiff to ride on said car at said time, and never did Error was prosecuted to the Court of Apinform him of said defective condition of said peals, where the judgment of dismissal was defective car.

affirmed. Error is prosecuted here. "Plaintiff further states at the time of re [1] While the form of this petition is not ceiving said injuries, and prior to and during the recommended as a model to be followed by time he was riding on said car, he knew noth- future pleaders, yet, eliminating all the in. ing of the defective condition of the same as herein set out, or of any other defects therein. definite and uncertain averments particular.

"Plaintiff further states that by reason of ized in the motion, it still states a case of said injury he became, and will be for his nat- negligence under the doctrine of res ipsa 10 ural life, lame and sick, and has been disabled quitur, which doctrine is peculiarly applicafrom attending his work as a laborer for able to the character of accidents described period of 11 months; that he was receiving in the petition, wherein it says: at the time of his injury as stated aforesaid $3.90 per day; and that since said injury he "The engine of the motor car

sud

caused the same has incurred expenses for medicine, medical denly bursted and attention, and nursing at the amount of $100,

to suddenly jump from the railroad and is injured by reason of the facts set forth track and throw this plaintiff from said car." for life. "Plaintiff therefore asks judgment against

This court cannot anticipate what the dethe defendant in the sum of $5,000."

fendant will plead by way of answer, and

prove upon the trial; therefore it cannot A motion to make more definite and cer assume that future pleadings and proof will tain was filed by the defendant, which for make the federal rule of the nonapplicability the purposes of this case was with regard to of the doctrine of res ipsa loquitur to acthe following particulars:

tions between master and servant applica

(146 N.E.) ble to this case, but must confine its judg-surety on the bond of the mayor, the Ameriment to the facts appearing in the record. can Surety Company, which was surety on

(2] While the trial court in the enforcing the bond of the safety director, and the of its orders has a wide discretion, yet that United States Fidelity Company, which comdiscretion is abused when the court, because pany was surety on the bond of the chief of of the fact that the pleading contains certain police. There were also joined as defendants, matter not well pleaded, deprives a litigant Frank M. Hardesty and Don Whittaker, who of the right to try a cause well pleaded. The were dismissed during the trial. dignity and authority of the court can be as The petition asked damages in the sum of well maintained by ordering the matter not $50,000, and a verdict was rendered by the well pleaded stricken from the petition as by jury in the sum of $25,300. Judgment was dismissing the case and depriving the litigant entered upon this verdict in the following of the right to have his cause tried upon the form: merits.

"It is therefore considered that said plaintiff The judgment of dismissal of the Court of recover of said defendants, Ledru R. Campbell, Appeals and court of common pleas will be Jacob J. Calvert and John A. Long, the sum of reversed and the cause remanded, with in- twenty-five thousand, three hundred ($25,300) structions that, if an amended petition be not dollars, and also his costs of this suit; and it filed the matters particularized in the motion is further ordered and adjudged that the plainnumbered 1, 2, and 5, be ordered stricken tiff recover of the defendant American Surety

Company of New York, as surety on the bond from the petition.

of defendant, Ledru R. Campbell, the sum of Judgment reversed, and cause remanded.

one thousand ($1,000) dollars and costs of this

suit, and said $1,000, when paid by said defendMARSHALL, C. J., and ROBINSON, AL ant American Surety Company of New York, LEN, and CONN, JJ, concur.

shall be credited on said judgment for $25,300; and it is further ordered and adjudged that the plaintiff recover of defendant United States Fidelity & Guaranty Company, as surety on the bond of defendant, John A. Long, the sum

of one thousand ($1,000) dollars, which $1,000, AMERICAN GUARANTY CO. v. McNIECE when paid by the United States Fidelity & et al. (No. 18344.)

Guaranty Company, shall be credited upon said

judgment of $25,300; it is further ordered and (Supreme Court of Ohio. Dec. 23, 1924.)

adjudged that the plaintiff recover of the de

fendant the American Guaranty Company, as (Syllabus by the Court.)

surety on the bond of defendant, Jacob J. CalOfficers m131–Sureties on official's bond lla- vert, the sum of two thousand ($2,000) dolble to all persons unlawfully injured by offi- lars and his costs herein expended, and when cer's acts by virtue, or under color, of office. said sum of $2,000 is paid by the defendant the

The sureties on a bond of an official, condi- American Guaranty Company, the same shall tioned upon the faithful performance of his du- become a credit upon said judgment of $25,300.” ties, are liable to all persons unlawfully injured by the nonfeasance, misfeasance or malfeasance

Error was prosecuted to the Court of Apperpetrated by such officer, either by virtue of peals by all of the defendants against whom his office or under color of his office.

the judgment ran, where the judgment of the

court of common pleas was affirmed, and erError to Court of Appeals, Guernsey ror is prosecuted here on the petition in error. County.

of the American Guaranty Company, and the Action by Thomas McNiece against Jacob cross-petition in error of the American SureJ. Calvert and others. Judgment for plain- ty Company. tiff was affirmed by the Court of Appeals, J. W. Bell, of Cambridge, and Williams, and defendant American Guaranty Company Sinks & Williams, of Columbus, for plaintiff brings error, and defendant American Surety in error. Company assigns cross-error.

Affirmed.- Scott & Scott, Milton H. Turner, James (By Editorial Staff.]

Joyce, W. W. Stewart, and Geo. D. Dugan, all This action was begun in the court of com- of Cambridge, for defendants in error. mon pleas of Guernsey county by Thomas McNiece against Jacob J. Calvert, who was

ROBINSON, J. The parties will be reat the time mayor of the city of Cambridge, ferred to here in the relation which they susJohn A. Long, who was at the time the chief tained in the trial court. of police of the city of Cambridge, and Ledru The record in this case discloses the folR. Campbell, who was at the time safety di- lowing facts: Jacob J. Calvert at the time rector of the city of Cambridge, and a special of the happening of the events out of which police officer, and was an action in damages this action grew was the mayor of the city of for the unlawful assaulting and shooting of Cambridge. Ledru R. Campbell was director plaintiff. Joined with the defendants were of public safety of the city of Cambridge, the American Guaranty Company, which was and also “special officer.” John A. Long was

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

chief of police of the city of Cambridge. They of any kind authorizing them to apprehend American Guaranty Company was surety on plaintiff, and the search warrant did not purthe bond of Jacob J. Calvert, as mayor, in port to authorize them, or any of them, to the sum of $2,000, conditioned as follows: search his automobile; that none of the par

“The condition of this obligation is such that ties defendant knew who was driving the car whereas the said principal was on the 4th day which it afterwards developed plaintiff was of November, A. D. 1919, duly elected to the driving, nor had they any information upon office of mayor of the city of Cambridge, Ohio, which to base a belief that plaintiff had confor the term of two years beginning on the 1st mitted a crime, or was in the act of commitday of January, 1920, next after his said elec- ting a crime; the attempt to stop the mation, and until his successor is chosen and qual-chine of plaintiff and the attack upon plainified: "Now, if the said principal shall faithfully that he was in the commission of a misde

tiff being made wholly upon the suspicion perform his duties as such officer, as required by law during the term for which he has been meanor, to wit, the unlawful transportation elected as aforesaid, then this obligation shall of intoxicating liquors; that a search of the be void, otherwise to remain in full force and person of the plaintiff and his car after the virtue."

shooting disclosed nothing upon which to

found such suspicion. The American Surety Company was surety on the bond of Ledru R. Campbell as director liability of the defendants Calvert, Campbell,

There is no question raised here as to the of public safety, in the sum of $1,000, condi

and Long, to respond in damages for the intioned as follows:

jury thus committed, and no error is prose"Whereas, said principal was, duly and in ac- cuted here by the United States Fidelity Comcordance with law, appointed director of public pany' as surety for the defendant Long. Er. safety, of the said city of Cambridge, Ohio, to serve from the 12th day of January, 1920, and of the defendant Calvert and by the surety

ror is prosecuted here by the surety company until his successor shall have been chosen and qualified:

company of the defendant Campbell. “Now, therefore, the condition of this obliga

The principal ground upon which each of tion is such that, if said principal shall faithful- such companies relies for a reversal is that ly perform his duties as director of public safe- the bonds given by the respective parties, ty of the said city of Cambridge, Ohio, during and signed by the respective surety comthe term for which he has been appointed, as panies, were for the faithful performance of aforesaid, then this obligation shall be void; the duties of the respective defendants as ofotherwise, to be and remain in full force and ficers of the city of Cambridge; that the powvirtue in law."

ers and duties of Calvert, as mayor, and of The United States Fidelity & Guaranty Campbell, as safety director, whatever they Company was surety on the bond of John A. may have been within the city of Cambridge, Long, as chief of police, in the sum of $1,000, did not extend to the matter of making arconditioned as follows:

rests and searching automobiles beyond the "Whereas, the above bounden John' A. Long city limits; that as sureties upon the bonds has been duly appointed chief of police of the they agreed to respond in the sums named city of Cambridge, Ohio, for the term of one in the bonds only for the breach of their year beginning January 1, 1912:

principals of some duty the performance of “Now, therefore, the condition of his obligation which their respective offices imposed upon is such that if the said John A. Long shall well them; that the acts of the defendants comand faithfully perform all the duties of his said plained of in plaintiff's petition were acts office, then this obligation to be void, otherwise done by Calvert and Campbell outside their to remain in full force and effect."

territorial jurisdiction, without power or On or about the 11th day of March, 1921, sanction of law, and not acts done in the the defendants Calvert, Campbell, and Long, discharge of any duty imposed upon them by armed with a search warrant to search a their respective offices, and were, therefore, certain automobile for intoxicating liquors, not within the letter of the contracts of sureproceeded some distance out of the corporate tyship. limits of the city of Cambridge, where they The soundness of the position of the insurmet the plaintiff, accompanied by a young ance companies depends upon whether Obio lady, traveling upon the highway in an auto- adheres to the theory that sureties are liable mobile. Thereupon Calvert, Campbell, and upon the bonds of their principals, condi. Long caused the automobile in which they tioned for the faithful performance of the were riding to turn around and pursue plain- duties of the office, only for acts done virtute tiff. After passing his automobile a number officii, or whether they are also liable for of times, and allowing him to pass them a acts done colore officii, for the decisions of number of times, they proceeded on past him the courts of the various jurisdictions upon several hundred yards, stopped their automo- this subject may be divided into those two bile, got out, and as he passed them on the general classes. public highway opened fire upon him and We, however, are not privileged at this seriously injured him. The record further time to choose between the two lines of dediscloses that none of the parties had a writ cisions, for this court as early as 1855, in the

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