",.. tJ..tl:J e.w of, O'Brien's defaults: and that.. as presented, the charge was ,lal .. . . '.
error in No cOJPpetent evidence, upon which f.l,verdict could. have been based, was submitted to the jury, which would have justified a verdict based upon the failure of, the officers of the Knights to prompt communication to the defendant of a(lts of fraud or dishonesty in O'Brien, :discovered during the life of defendant'sb9nd. Neither was. aD;y material or competent evidence excluded, so far as is pointed out by valid ex<;eption and proper assignment of error, which should have been admitted as bearing upon such a defense. It was not improper for the court tQ withdraw that defense fr.om the consideration of the jury. The defendant's fourth, ninth, eleventh, seventeenth, and eighte.enth. l:lSsignments of error are insufficient, in that they are not ill compliance with rule 11 of this court, which requires that, "when error alleged is to the admission or rejection of evidence, the assignment of error should quote the full substance of the evidence aqmitted or rejected." r,rhe remaining assignments have. been examined and are overruled. They are either immaterial, or not well taken. To rule upon them in detail would extend this opinion to an unpardonable length, and prove of no particular interest. The judgment must be affirmed. Each party will pay one-half the costs of this court.
McDONALD v. CITY OF TOLEDO.
(Circuit Court, N. D. Ohio. June 23, 1894.)
MUNICIPAL CORPORATIONS-OBSTRUCTED STREETS-SNOW AND ICE.
A city situated in the latitude of northern Ohio is not bound, as a matter of law, to remove, even from its principal streets, snow which fell, during an unusual storm, to the depth of four feet: and the fact that the snow has remained a week, and has been piled .up by the street-car companies, in clearing their tracks, and become frozen and hard, is notice to the pUblic, as well as to the city authorities, of its dangerous condition, and therefore the public is bound to exercise care in driving. Chase v. City of Cleveland. 9 N. E. 225,44 Ohio St. 505, applied.
In an action for injuries sustained in driving upon a street obstructed with snow and iee, plaintiff averred that the accident was caused because, in turning from one street into another, it was necessary to pass round a street car standing upon its track in the latter street, and that in so doing his horses were frightened by the sudden starting of the ear, and drew his buggy over the ice, and overturned it. Held that, in the absence of any further averment on the subject, it shoUld be assumed that the car had merely stopped to take on or discharge a passenger, and that, therefore, it was not necessary for plaintiff to drive around it
This was an action at law by McDonald against the city of Toledo to recover damages for petsonal injuries sustained in and driving upon the streets. The city demurred to the petition for want of facts sufficient to constitute a cause of action. Hurd, Brumback & Thatcher, for plaintiff. O. F. Watts, City 801., for defendant.
M'noNALD V. CITY OF TOLEDO.
RICKS, District Judge. The averments of the petition are that on the 12th day of February a severe and violent snowstorm prevailed in the city of Toledo, which left the snow, on or about where Cherry street and Collingwood avenue intersect, drifted to a depth of between 4 and 5 feet; that Cherry street is one of the principal streets and thoroughfares of the city; that the street-car tracks on the street are double, and occupy about 14 feet, and that the street is paved 44 feet between curbs; that said snow had been carelessly cleared from the railroad tracks by the defendant street-railway company, and piled up in a conical mass on the remaining parts of the street, to the depth of 4 to 6 feet, until it packed and froze so as to become a hard .mass, rendering said street dangerous; that plaintiff was driving with two horses in a carriage on Collingwood avenue from a northerly direction, and turned onto Cherry street, and at said crossing of Collingwood avenue it became necessary to pass around a car of the Toledo Consolidated Street Railway, which was standing on its track on Cherry street; that while so driving around said car the servants of said street railway carelessly started said car, and the noise frightened plaintiff's team so that they jumped towards the side of said street, and drew plaintiff's buggy upon and over said hardened mass of snow on the westerly side of said street, in such manner as to overturn said buggy; that plaintiff exerci.ged due care in the driving, and was without fault, and, but for the existence of said mass of snow piled in said street as aforesaid, he could have controlled and stopped his team before said buggy was overturned; that each of said defendants had notice of said piling of snow on said street. The case of Chase v. City of Cleveland, « Ohio St. 505, 9 N. E. 225, is relied upon in support of the demurrer. In that case the plaintiff fell on a slippery sidewalk, made so by the natural fall of snow, which froze, and had been smooth and slippery. The street was averred to be a public highway within the corporate limits, and it was charged that the city had, or might have had, notice of the dangerous condition of said walk. The walk was' otherwise in good repair. The supreme court held the petition insufficient to show negligence. The, reasoning of the court is that a fall of snow is a temporary impediment, and perhaps a danger, which is frequent in northern cities, and to impose upon a municipality the duty of removing snow or removing ice from sidewalks would be an onerous burden, involving great expense, and that, unless very exceptional conditions are shown, it would not be negligence to fail to remove such impediment or danger from the sidewalks. It is sought to distinguish the case at bar from the Chase Case, first, because this obstruction was in a principal thoroughfare, and because it was the result of an unnatural and violent storm, and therefore the city had notice of unusual obstruction to travel that would be caused thereby. It is further insisted that the city had notice that this obstruction was made greater and more dangerous because the street-railway company was permitted to scrape the snow from its tracks, and pile it upon the streets, and that said pile of snow was permitted to remain in the street for seven days, and so froze as to beeome
ihttrdebed. ':But it :i8 be obsel'vedthat all these unusual and excOi1\!itlons'which are relied, upon to carry notice to the 'City"of the dwg-el'Oul!lJ 'character of the obstructions in,th<estreet, inay likewise' upon to carry notice to plaintiff of the dangei'sl'he might' naturally expect. "Fol!, as the Bupreme:court said in the Chase the city "is bound to exeroise only ordinary care, take reasonably to be required and adequate invfew of the 'ordinary exigencies." " The conditions set forth in 1:he exceptional and rare. A fall of four feet of snow in 'oM storm' rare,eV'en in this se'Ction. Is the city bound to remove !fourfoot:of sJ1owfrom even'" itf! prineipal ,thoroughfares? There are many ll'U.clHn Toledo, and theyareo of great length. The court may tll:tre' judiCial notice of such facts. It would be a hardship to- impose upon the taxpayers, through their city authorities, the burden Of snow and ice reSulting from such a storm within 'So short a ;i · , ' , ' The'averment in the petition is that the accident was caused because it wasliecessltrY, (for plaintiff) to pass around a car of the Toledo Consolidated Street-Railway Company, standing on its track on Cherry street It is not averred that this car had stood there for a'long time;' or would be compelled tostllnd there for a long time, 'SOils to show the necessity to drive around I think, in the ab'!!lence' of such 'aln averm.ent, the court iswarrafited in assuming that it was a stop 00' take' on or discharge a I, think this assumption ought to be tebutted by: an affirmative allegation which wOllld show' some negligence or act tending· to establish negligence 0Il, part of ,such (iefendant, because the storm whi.ch left to five feet of Snow on the street Impose upon plamtiffm()re care lind caution in drivingabollt the streets. In such a condition of the street, travel might be substantially suspended, arid 'persons WllO petsisted trying to drive oyer such ,snow batiks would be charged with notice, and to obseI"\Te more than ordinary cate,'" the driving out of the way to avoid a street 'Car only stopping 'for a moment would not be "necessary." For these reasons, I do not think the petition states facts nee ssary to out a case, and the demurrer will therefore be susi
LAWRENCE et al. v. PORTER et at. (CircuIt Court of Appeals, Sixth Circuit. May 28, 1894.) No. 122.
DAMAGEB-CONT:Bi\O'l' FOR. SALE OF TO DELIVER.
'.On l\ contrll,¢tfor sale of goods on credit, where the seller refuses to dethem, b1,J.t offers to deliver fot cash at a reduced price, the reductlon' more thaI!. equalizing the interest, for the term of 'credit, the buyer, ,not,alleging InabilitY to pay cash, but that he was unable to obtain the goods from others tllan. the seller at the place of delivery or other avail,able mlj.rkef, cannot recover damages on the ground that he had bollght for resale at another place at an advance over the contract price and' cost ()f transportation, and the seller was informed of that purpose.