Volume 106 — Ohio State Reports, New Series

<p>Railroads — Federal control — Separate systems not merged into common entity — Negligence—Liability of one system not attributable to another, when — Federal Employers’ Liability Act inapplicable, when — Relationship of employer and employe essential — Contributory negligence as bar to recovery —Charge to jury — Comparative negligence inapplicable, ; when.</p> <p>1. When the federal government toot over the operation of the railroad systems of the United States and placed them under the management of the director general of railroads, the separate systems did not thereby lose their identity and become merged into a common entity.</p> <p>2. The negligence of the director general of railroads in the operation of one system of railroads is not attributable to the director general of railroads in the operation of another system of railroads.</p> <p>3. Where the relationship of employer and employe did not exist at the time the cause of action arose, the Federal Employers’ Liability Act has no application and is not effective to change the law of the state with reference to contributory negligence.</p> <p>4. Where the relation of employer and employe did not exist and the Federal Employers’ Liability act therefore did not apply, it is error for the court to charge that “contributory negligence does not bar a recovery,” and to charge that recovery may be had in the proportion which the negligence of the defendant bears to the entire negligence of both plaintiff and defendant.</p>

<p>Error to the Court of Appeals of Miami county.</p> <p>On Eehearing.</p> <p>James McClurg executed his will on the 27th day of February, 1876. The will was filed for probate on the 9th day of September, 1876. The second item of the will reads:</p> <p>“It is my will that my wife, Jane McClurg, shall have the one-third of the proceeds of the farm upon which we now reside in Elizabeth Township, County and State aforesaid, containing one hundred acres, to have and to hold her natural lifetime, also to have her residence in the house on said premises, to have and to hold as a residence during her lifetime also one cow and one year’s support, not exceeding three hundred dollars, out any moneys that may be on hand at my decease.”</p> <p>The third item of the will reads:</p> <p>“It is my will that my son, "William McClurg, shall have the farm above described by paying to James Clark McClurg the sum of one thousand dollars, and one thousand to Hugh Chain McClurg, and one thousand to Margaret Ann Wilson’s four children (minors), William to pay James Clark McClurg and Hugh Chain, McClurg each five hundred dollars in one year from my decease, and five hundred dollars in two years from that event and to pay each of the Wilson (heirs) Amanda Jane Wilson and Melissa Patience Wilson, Margaret Allace Wilson and James Clark Wilson, each two hundred and fifty dollars in one year from my decease. Margaret Ann Gwendel to have one hundred dollars out of any moneys that may be on hand at my decease, my son William to have one cow, also all my chattel property to be sold by my executor without appraisement, and the proceeds to be divided equal between my legal heirs.”</p> <p>Jane McClurg, the widow, elected to take under the will.</p> <p>William McClurg, the son, accepted the farm and paid the $3,000 to his brothers and the children of his deceased sister, and paid $100 a year to Jane McClurg during her lifetime.</p> <p>William McClurg died intestate, leaving a widow, Rachel McClurg, as his relict and sole heir at law.</p> <p>The plaintiffs in error are the brother and sister and devisees of Rachel McClurg. The defendants in error are the brother of William McClurg, the son of a deceased brother of William McClurg, and the daughters and son of a deceased sister of William McClurg.</p> <p>The action in the court of common pleas was, brought by Melissa Hall against the plaintiffs in error and the other defendants in error to partition the land and quiet title against the plaintiffs in error here. Answers were filed by the various pai’ties defendant below, which answers, so far as the determination of the question before this court is concerned, made no issue of fact, and a motion for judgment upon the pleadings raised the question of law here for determination, to-wit, did William Mc-Clurg take the 100 acres of land by devise within the meaning and intent of Section 8573, General Code, or did he take it by purchase?</p> <p>The court of common pleas rendered judgment for the plaintiff and upon appeal the court of appeals rendered a like judgment.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The facts are stated in the opinion.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>On September 28,1918, Zajachuck, plaintiff below, filed his action to recover damages for an occupational disease, namely, lead poisoning, caused by continuous employment for about a year and a half, until June, 1917, in a place ladened with poisonous and deleterious dust and fumes, where he contracted the disease. He alleges that he became sick and weak therefrom; that he had no knowledge or means of knowledge of the danger of contracting lead poisoning from such employment, and that the defendant having such knowledge neglected to inform him of the dangers incident thereto-; that defendant violated Section 6330-1, G-eneral Code (103 O. L., 819), which requires that an employer shall provide reasonably effective devices to prevent the contraction of illness or disease incident to the work; and that defendant violated the provisions of an ordinance of the city of Cleveland with reference to ventilation devices for carrying away poisonous dust and fumes and failed further to provide respirators in order that plaintiff might be prevented from inhaling dust or other poisonous substances.</p> <p>The defendant answered, setting forth, among other things, that it had complied with all the requirements of the workmen’s compensation law, and that by reason thereof plaintiff was not entitled to maintain his action. At the instance of plaintiff the allegation of compliance with the workmen’s compensation law was stricken out, and, upon motion of the defendant, all allegations contained in the amended petition regarding violation of Sections 6330-1, 6330-3, 6330-5, 6330-6, General Code, were stricken therefrom by the court. Thereupon, on motion of the defendant, the court ordered the amended petition to be stricken from the files. This action was equivalent to a demurrer to the pleadings. So far as the record discloses no final order was thereafter made or judgment thereafter rendered. This phase of the matter was not called to the attention of this court and our decision is based upon the assumption that a judgment was rendered, but that an entry thereof was inadvertently omitted from the record before us.</p>

<p>Error to the Court of Appeals of Wood county.</p> <p>The facts are stated in'the opinion.</p>

The First National Bank of Youngstown, Ohio, brought suit against the oity of Youngstown, in the court of common pleas of Mahoning county, on two causes of action. In its first cause of action it sought to recover certain sums advanced to the city for payment of emergency patrolmen appointed by the mayor of the city during the steel strike of 1919.