(146 N.E.)

Edward C. Stanton, pros. atty., and Geo. [ imposing the tax is valid or otherwise. In C. Hansen, asst. pros. atty., both of Cleveland, such an action a full and adequate remedy for plaintiff in error. is conferred upon the taxpayer; resort to

Simmons, De Witt & Vilas, of Cleveland, for the chancery powers of a court is not necesdefendant in error.

Error to Court of Appeals of Cuyahoga County.

Action by Catherine Bradley against the Cleveland Railway Company. Judgment for

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

defendant was affirmed by the Court of Appeals, and plaintiff brings error. Affirmed. [By Editorial Staff.]

This was an action for personal injuries. The answer was a general denial. In the common pleas court verdict and judgment were given in favor of the defendant. The judgment was affirmed by the Court of Appeals, whereupon error was prosecuted to this court.

The printed record, other than the journal entries and pleadings in the cause, consists only of the general charge of the court, and the only error relied upon is that since the answer contained merely a general denial the court in its general charge injected the issue of contributory negligence when such an issue had not been presented in the

answer.

Plaintiff alleged in her petition that she was a passenger upon the car of the defendant; that she signaled the operator of the car of her desire to alight therefrom; and that in attempting to do so, and while in the act of stepping from the lower step, she was thrown to the pavement and sustained serious injury. The acts of negligence relied upon were that the defendant caused the car to start suddenly before she had alighted, and did not allow her a reasonably safe time to alight therefrom. The court correctly charged upon the issue of defendant's negligence. It charged that the defendant company was compelled to use the highest degree of care for the safety of the plaintiff, consistent with the operation of its line; that this degree of care continued until plaintiff had safely alighted from the street car; and that if a preponderance of the evidence disclosed that the acts of the defendant negligently and proximately caused the accident the jury should find for the plaintiff.

Since the answer contained a general denial, plaintiff in error contends that in the general charge the trial court charged the issue of contributory negligence and that the effect of such charge was to cast the burden of proof on that issue upon the plaintiff. The part of the general charge complained of is as follows:

"To entitle the plaintiff to recover, the negligence of the defendant must have been the proximate cause of the injury or injuries sustained by her. Again, to entitle the plaintiff to recover she must have been without fault. She owed a duty to the defendant company to exercise ordinary care in alighting from the street car. If you find that she was a passenger, but you further find that she failed to use ordinary care in alighting from the street car, and that failure to use that ordinary care contributed to the injury or injuries sustained by her, then, of course, she could not recover, and your verdict in that event would be for the defendant."

Squire, Sanders & Dempsey, of Cleveland, for defendant in error.

JONES, J. The printed record contains none of the evidence offered at the trial but does contain the complete charge of the court. In that aspect, while the issue of contributory negligence was not made in the answer, it may have been presented in the evidence offered in the trial. Counsel for plaintiff in error insists that the trial court erred in charging upon that issue, by instructing the jury that if they found that plaintiff's failure to use ordinary care contributed to her injury she could not recover. In support of this insistence he cites Cincinnati Traction Co. v. Forrest, 73 Ohio St. 1, 75 N. E. 818, and Cincinnati Traction Co. v. Stephens, Adm'r, 75 Ohio St. 171, 79 N. E. 235.

[1] From a number of cases recently appearing in this court it is very evident that there is confusion in the application of principles heretofore announced in that class of cases where the answer consists either of a general denial or both the general issue and an allegation that the negligence of the plaintiff was the sole cause of the injury. Where contributory negligence is pleaded as an affirmative defense, and evidence is adduced in its support, no such confusion can arise. This court is committed to the rule that where contributory negligence is made a defense, either by the pleadings or by evidence, the burden of proving that issue is cast upon the defendant. Contributory negligence is a defense in the nature of a confession and avoidance. If there be no express admission, there is an admission by implication that some negligence exists on the part of the defendant. Ordinarily in personal injury cases the defendant does not desire to confess its own negligence, and in practice usually pleads a general denial with an alternative allegation that if the defendant was negligent the plaintiff's negligence, either wholly or in combination with the defendant's negligence, directly contributed to the injury.

This court has held that, where the answer pleads the general issue only, the defense of contributory negligence is not thereby presented. Traction Co. v. Forrest, supra. Nor is that issue presented by the pleadings where the defendant, in addition to its general denial, pleads that plaintiff's own negligence was the cause of the injury. Glass v. William Heffron Co., 86 Ohio St. 70, 98 N. E. 923; Rayland Coal Co. v. McFadden, Adm'r, 90 Ohio St. 183, 107 N. E. 330. Whatever confusion may exist at the trial table as to the scope of the Forrest and Stephens Cases, supra, this court in more recent cases has announced the principle that if contributory negligence is not made an issue by the pleadings, but is developed by the evidence, it becomes the duty of the court to

Tim Long, of Cleveland, for plaintiff in charge the jury in respect to that issue.

(146 N.E.)

& T. Traction Co., 86 Ohio St. 209, 99 N. E.
383; Coal Co. v. McFadden, supra; Gibbs v.
Scioto Valley Ry. & P. Co., 111 Ohio St.
145 N. E. 854. These later cases do not con-
flict with the Forrest and Stephens Cases,
supra. In the Forrest Case it is clear from
the syllabus and opinion that there was no
evidence offered tending to show contributory
negligence. The syllabus in the Stevens Case
discloses that at the trial the defense was
wholly that the defendant was not guilty of
negligence. That the defense of contributory
negligence was not developed by the evidence
is clearly emphasized by the opinion of Da-
vis, J., who said, at page 178 (79 N. E. 236):
"In a careful reading of the evidence in the
bill of exceptions we have not been able to
discover any attempt on the part of the de-
fendant to prove contributory negligence."

[2] So that the the purport of the previous decisions of this court is that the trial court is required to charge upon the subject of con⚫tributory negligence where the evidence reasonably tends to develop that issue, and this rule applies whether the defendant's answer pleads the general issue, or further alleges that the accident resulted from the plaintiff's own fault. The reason for the application of the announced rule is obvious. In order to recover the plaintiff is required to sustain the material allegations of his petition by a preponderance of the evidence. Any countervailing proof tending to break down that preponderance is relevant upon the question

"The rule is that he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail."

[3] Applying the principle in the cases cited, we fail to see any prejudicial error upon the part of the trial court. The evidence is not before us; we therefore cannot determine whether contributory negligence was attempted to be proven on the trial. cannot presume that there was no such evidence offered.

We

Should we have recourse to the brief of counsel for defendant in error we find the contention that plaintiff received her injury solely by reason of her own negligence. In its general charge the court imposed upon plaintiff the burden of showing negligence upon the part of the defendant. No other burden was imposed upon her. In respect to the burden of proof, therefore, the trial court correctly charged the law. The plaintiff had alleged in her petition that she was guilty of no negligence on her part contributing to her injury. The court charged the jury that if they found that her failure to use ordinary care contributed to her injury she could not recover, but no burden was placed upon her on that phase of the case. If the issue of contributory negligence was developed by the evidence, counsel for plaintiff in error could have asked the court to instruct the jury as to the burden of proof upon that issue, but no such in

struction was asked.

[4] There being no bill disclosing the testimony, we find no prejudicial error upon whether the defendant was negligent and the part of the trial court in respect to its whether the negligence proximately caused charge. If the issue of contributory neglithe injury. Should the entire evidence ofgence was in fact developed by the evidence, fered at the trial convince the jury that some that issue should be "determined by the intervening, efficient cause, other than the same rules as to burden of proof" as if made negligence of the defendant, occasioned the by the pleadings. Coal Co. v. McFadden, suinjury, or that the negligence of the plaintiff pra. If the plaintiff in error desired an inproximately caused the injury, or that the struction upon the burden of proof on the negligence of both combined was of such char-issue of contributory negligence, it was inacter that the jury would be unable to deter-cumbent upon her to ask the court to instruct mine by a preponderance of the evidence whose negligence proximately caused the injury, manifestly it would be the duty of the jury to return a verdict for the defendant. This for the reason that the burden of proof rests upon the plaintiff; and if upon the entire case the plaintiff's proof upon the issue of defendant's negligence is fully balanced or left in equipoise obviously a preponderance cannot exist. In such situation we think that the principle announced in Klunk v. Hocking Valley Ry. Co., 74 Ohio St. 125, 77 N. E. 752, is applicable here, where the rule is stated in the syllabus as follows:

the jury upon that feature. Under section 11561, General Code, a general exception to the charge of the court only reviews errors of law existing in the charge as given, and does not bring in review an omission or failure to give further proper instructions. Columbus Ry. Co. v. Ritter, 67 Ohio St. 53, 65 N. E. 613.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

MATTHIAS, DAY, ALLEN, KINKADE, and ROBINSON, JJ., concur.

2. Carriers 5-Private carriers held not sub-ers Association, whereby they were employject to law regulating operation of motor vehicles.

"Any person, or persons, firm or firms, copartnership or voluntary association, joint stock association, company or corporation, wherever organized or incorporated: When engaged in the business of carrying and MARSHALL, C. J. This cause involves transporting persons or property or both, in the interpretation of the Freeman-Collister motor propelled vehicles of any kind whatsoever, for hire, over any public street, road or Motor Transportation Act, but is not a review of any order of the Public Utilities Com-highway in this state except as hereinafter provided in section 614-84, is a motor trans mission. The cause originated in the court portation company and as such is declared to be of common pleas of Summit county, Ohio, a common carrier."

(146 N.E.)

Section 614-84, subd. (c), defines a motor transportation company:

"The term 'motor transportation company,' when used in this chapter, means every corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, owning, controlling, operating or managing any motor propelled vehicle not usually operated on or over rails, used in the business of transportation of persons or property or both, as a common carrier for compensation, over any public highway in this state."

claring that to constitute a common carrier there must be a dedication of property to public use of such character that the product and service are available to the public generally and indiscriminately, and that the carrier must hold himself ready to serve the public indifferently to the limit of his capacity. The authorities are equally uniform in holding that, if a carrier is employed by one or a definite number of persons by a special contract, or for a special undertaking, he is only a private carrier. In the instant case it is true that Guran and Myers are performing

receiving a compensation, and it is also true that they are using the improved highways of the state in and about the performance of that service. Neither of these features is conclusive of the question. The entire service rendered by them is pursuant to a private contract, in which no one else is interested, and no benefit or disadvantage accrues to any other person by reason of the rendition of that service, except that Hissem might possibly enjoy a larger patronage if the injunction against Guran and Myers should become effective. It does not conclusively follow that this would happen, because each of the producers might transport his own individual product to the market in his own vehicle. The use of the highways by Guran and Myers is not conclusive of the question, because it cannot be said that traversing the highways by a single truck, serving a large number of patrons, is more destructive to the highways than the transportation of the same product to the same market by the use of a large number of vehicles of individual owners. There does not therefore, upon principle, appear to be any sound basis for the exercise of public regulation of motor vehicles not dedicated to public use.

The term, "motor transportation company," is first used in section 614-2, and if we in-services for other persons, for which they are sert the definition of the term and write it into that section in the place of the term itself it will be found that the General Assembly has attempted by legislative fiat to constitute the person or company who may do the things therein referred to a common carrier. In this controversy this court is required to determine the limitations upon the power and authority of the General Assembly to declare certain persons and firms to be common carriers, when the business conducted by them is such as not to bring them within the common-law definition of common carriers. By section 614-2 it is declared that any transportation for hire of persons or property in motor-propelled vehicles over the streets and highways of the state constitutes the operators of the vehicles common carriers. If common carriers, they are of course subject to regulation both as to the rates to be charged and the service to be rendered. They are subject also to taxes and charges, and involved in expenses which do not have to be met by persons and firms not subject to public regulation. If they are common carriers their vehicles and other property are devoted to public use, and they cannot complain of public regulation, with the taxes, charges, expenses, and other inconveniences incident thereto. If their business has not in fact been dedicated to public use and service, any regulation would amount to a taking of private property for public use, and therefore be beyond the power of the state, unless just compensation were first paid in money.

As to what constitutes a common carrier, there can be no real controversy. It has been determined by numerous decisions of this court and the United States Supreme Court, and, for that matter, by the courts in practically every state in the Union. Samms v. Stewart & McKibben, 20 Ohio, 70, 55 Am. Dec. 445; United States Express Co. v. Backman, 28 Ohio St. 144; Ohio Mining Co. v. Public Utilities Commission, 106 Ohio St. 138, 140 N. E. 143; Korner v. Cosgrove, 108 Ohio St. 484, 141 N. E. 267, 31 A. L. R. 1193; Southern Ohio Power Co. v. Public Utilities Commission, 110 Ohio St. 246, 143 N. E. 700. The declarations of the foregoing cases are in perfect harmony with all other decisions throughout the states of the Union, and of the United States Supreme Court, in de

This question is not a new one, but, on the contrary has been met by many courts. The Supreme Court of California, in Allen v. Railroad Comm., 179 Cal. 68, 175 P. 466, 8 A. L. R. 249, in a very clear opinion, denies the right of the Legislature to constitute a private carrier a public and common carrier by legislative fiat, as being in contravention of section 10, art. 1, and of the Fourteenth Amendment, of the federal Constitution. Aside from the logic of the opinion in that case, it becomes a very cogent authority by reason of an application having been made to the Supreme Court of the United States for a writ of certiorari, which writ was denied. Railroad Comm. v. Allen, 249 U. S. 601, 39 S. Ct. 259, 63 L. Ed. 797. Since the denial of the writ in that case, the Supreme Court of the United States has squarely met this question, and has decided against the authority of a state Legislature to convert a private carrier into a public utility by mere legislative fiat. Producers' Transportation Co. v. Railroad Comm. of California, 251 U. S. 228, 230, 231, 40 S. Ct. 131, 64 L. Ed.