Volume 19 — Ohio Circuit Court Reports, New Series

<p>AUTHORITY TO RELOCATE PORTION OF AN INTERURBAN LINE.</p> <p>Bills of Exceptions — Taken in Time to Oover Preliminary Hearing in Appropriation Case, When — Statement of Grounds for New Trial— Right of Intermitan RaiUcay to Appropriate Land for Relocation of Line — Greatest Distance from Old Line One Mile — Meaning of the Words “Construction” and “Necessity” as Used in the Statute — Section 9119.</p> <p>1. It is not necessary that a motion for a new trial follow the exact</p> <p>language of the statute, if the causes enumerated as grounds for a new trial are such as are embraced within the meaning of the statute.</p> <p>2. In an action by an interurban railway company for the appropriation</p> <p>of land, a bill of exceptions is taken in time to preserve the case for review as to the preliminary hearing, if the time allowed for such filing has not expired when computed from the overruling of the ■motion for a new trial.</p> <p>3. When it becomes necessary for an interurban railway company to make changes in the construction of its road, or to relocate its tracks in order to avoid dangerous or difficult grades or curves or to shorten its line, the word "construction” as used in the statute will be held to include such alteration and to empower the company to appropriate land therefor.</p> <p>4i The “necessity”-required under the statute to authorize an appropriation of private property fpr -railway purposes, is a reasonable as distinguished from an absolute necessity, and such reasonable necessity is established when it is shown that dangerous curves and grades will be thereby eliminated and the road made safer and its service to the general public rendered more efficient.</p>

<p>TRIAL FOR. HOMICIDE.</p> <p>Criminal Lau> — Qualifications of an Interpreter — Exhibition to Jury of Heart of the Decedent — Charge of Court.</p> <p>1. - It is not error in a trial for homicide to permit a near relative of one of the witnesses for the state to act as interpreter, where there is nothing tending to show that the said interpreter was in any way biased or prejudiced or intersted in the outcome of the trial.</p> <p>2. Nor is it error in such a case to exhibit to the jury the mutilated heart of the decedent for the purpose of showing the character of the incision which had been made therein as bearing upon the cause of death.</p> <p>3. The addition by the court to a special instruction to the jury asked by the defendant of the words, “and to some degree contributed thereto,” was not prejudicial but mere surplussage, since the con- , elusion that he was an aider or abettor could not be reached by the jury unless there was evidence tending to show that he did something in furtherance of the common purpose to take the life of the decedent.</p>

<p>NEGLIGENCE ON THE PART OF A DRIVER.</p> <p>Street Gar Accident — Driver Grossing Track — No Time to Stop Gar— Company Not Liable.</p> <p>Where a person with knowledge that a street ear is coming rapidly, drives upon the track and his hind wheel is struck before he clears the track and he is injured, there being no evidence that the motorman had time to stop his car in time to save the accident, there can be no recovery against the street car company.</p>

<p>PASSENGER. INJURED WHILE WAITING FOR. TRAIN.</p> <p>Negligence — Duty of Passenger While on Railway Company's Premises —No Recovery for Injury from Being Struck by a Train, When.</p> <p>An intending passenger waiting the arrival of his train is bound to use reasonable care for his own safety while on the company’s premises, and he is guilty of contributory negligence which bars recovery for injuries from being struck by a train,, when he attempts to pass from one waiting platform to another and in so doing crosses a track without looking to see whether there is a train approaching.</p>

<p>CONTEMPT PROCEEDINGS AGAINST PUBLIC OFFICERS.</p> <p>Suspended Official Restored hy Order of Court — Attempt to Recover Salary During Period of Suspension — By Contempt Proceedings Against Municipal Treasurer and Other Officials.</p> <p>1. The relator was removed from his office of chief of police hy the mayor of the city.' In a mandamus proceeding brought for that purpose hy the relator, the mayor was ordered to restore him to his office of chief of police in the city with all the privileges, prerogatives and emoluments thereunto belonging, which order was finally affirmed by the Supreme Court. The mayor restored the relator to his office of chief of police; Subsequently the relator, not having been paid his salary and fees during the period covered by his suspension, filed a motion in the circuit court asking for a rule against the mayor, director of public safety, city auditor, and treasurer of such city, requiring them and each of them to show cause why they should not he attached for contempt for not paying the relator his salary and fees during such period of suspension. Held: That the director of public safety, city auditor and city treasurer, not having been parties to the original action and proceeding in which the order was made, can not he attached for contempt in disobeying an order made therein, and that the mayor, having restored the relator to his office, had performed all the duty devolving upon him.</p> <p>2. In a subsequent hearing, it appearing that on the application of the relator, three members of the bar were named by the court to prosecute such contempt proceeding against the above named city • officials, and the question was presented as to whether or not the three attorneys named should he allowed and recover as costs in the case fees either against the defendant or the city. Held: That the case is not one in which attorney fees as costs can he allowed.</p>

<p>PROPER. CONSTRUCTION OF REPRESENTATIONS DESCRIPTIVE OF OCCUPATION.</p> <p>Accident Insurance — Stipulations of Policy Willi Reference to Hazards of Different Glassifications — Overlapping of Occupations and Isolated Acts Involving Greater Hazard.</p> <p>In the absence from a policy of accident insurance of an exception based, on specific acts, an isolated act by the insured commonly • connected with a more dangerous occupation than that named in the application for insurance does not reduce the amount of the policy to the basis of the more hazardous risk.</p>

<p>INJUNCTION AGAINST CONSTRUCTION OF LEVEE DENIED.</p> <p>Water and Water-Courses — Means for Protection Against Floods— Right of State to Construct Levee — County May Join in the Work — • ■ Property Owner, Fearing Damage to His Lands, Has Adequate Remedy at Law — County Commissioners Joint Tort Feasors — Sections 455, 457, 458, 459 and 7483, General Code.</p> <p>1. Under favor of Section 7483, county commissioners have the right to join with state officers in the construction of a levee for the protection of state property from damage from floods, where by so doing they are able to accommodate the public by protecting a county road from overflow and injury.</p> <p>2. A property owner whose lands will probably be damaged by the construction of such a levee has an adequate remedy at law against the county commissioners, who in such a case would be joint tort feasors; and injunction does not lie upon the petition of such land owner against proceeding with the work.</p>