Volume 52 — Ohio State Reports, New Series

Mandamus. The petition in this case avers that Mr. Fay is an elector of Hamilton county and interested in the election of a judge of the court of insolvency.

Error fco the circuit court of Ashtabula county. The original action was upon .a policy of insurance, by the terms of which the defendant insured the plaintiff to the amount of five hundred dollars, against loss or damage by fire, on his dwelling house in Ashtabula county, for the period of three years from the 1st day of January, 1887. ■ The building was totally destroyed by fire on the 28th. day of September, 1888.

<p>Error to the Circuit Court of Delaware county.</p>

Circuit Court of. Montgomery county. . , On April 6, 1893 (Ohio Laws, 143), an act of the General Assembly was passed, which reads as follows: “Section 1.

E. Lincoln Neal, the defendant in error, filed his amended petition in the court of common pleas, against Peter A. Sanns and James H. Sanns, partners under the firm name of P. A. Sanns & Son, the plaintiffs in error. .

Quo Warranto. Error to the Circuit Court of Hardin county. On April 27, 1893, the general assembly passed an act entitled, “An act to re-district certain cities of the fourth grade of the second class.” Sections 1 and 2 of the act read as follows: “Section 1.

The defendants in error, James DeVore, S. M. Pickerill, T. C. Shinkle and T. J. Williams, broug’ht action in the circuit court in the nature of quo wa/rrconto, in the name of the state against the plaintiffs in error, fifteen in number, to compel said parties to show by what authority or warrant of law, they claim to exercise the office of directors of the Brown County Agricultural Society, a corporation not for profit, without a capital stock, duly organized under the laws…

<p>Promissory note — Parol agreement made at execution and delivery of — Erroneous admission of evidence to vary written instrument.</p> <p>1. Evidence of a parol agreement made at the execution and deliv-</p> <p>ery of a note, by which it is not to be operative, unless, within a given time, the makers are able to realize a given sum of money from property purchased, and for which the note was given, is-not competent.</p> <p>2. When distinct issues are submitted to a jury arising upon distinct</p> <p>defenses, and the verdict of the jury is general, the erroneous admission of evidence on one of the issues, does not of itself render the judgment entered upon the verdict erroneous,</p> <p>Error to the Circuit Court of Hamilton county.</p>

Mandamus. Henry Jacobi, sheriff of Darke county, declined to issue a proclamation for the election of judges of the court of common pleas of the second subdivision of the second judicial district of this state, on the ground that the statute, passed May 17, 1894, 91 Ohio Laws, 280, subdividing this district into its present form, is unconstitutional and therefore void.

E rror to the Circuit Court of Franklin county. The case below was a mandamus proceeding brought in the circuit court by the plaintiff in error against the defendants in error, S. M. Taylor, E. W. Poe and J. K. Richards, as ‘commissioners of public printing for the state and The Wes^bote Printing Company and John L. Trauger, to compel an award by the commissioners to the relator of certain contracts for printing enumerated as the second, third, fourth, sixth, seventh, eighth…

Exceptions by Prosecuting Attorney of Clark county. At the January term ■ 1894, of the court of common pleas of Clark county, Samuel L. Nelson was indicted, for permitting an electric street car to remain without the screen required by statute for the protection of the motorman. Mr. Nelson demurred to the indictment, on the ground that the statute under which the indictment was found was unconstitutional.

Miles W. Hank, a resident of Trumbull county, died on the 21st day of March, 1875, seized of one hundred and seventy-one acres of land situated in that county. He left a will by which he gave the whole of his estate absolutely to his widow, Clara Hank, making no provision therein, nor by way of settlement, or otherwise, for his posthumous child, which was born a few days after his death.

This was a suit brought by Lowmiller against the defendants to quiet his title to the premises described in the petition. The defendants demurred to the petition, on the ground that it does not state facts sufficient to entitle the plaintiff to the relief sought. The demurrer was overruled; and, the defendants not desiring to answer, judgment was rendered quieting the title as prayed for.

The defendant in error, Jennie Best, filed her amended petition in the court of common pleas of said county, against The Board of Education of New Concord Village School District, the plaintiff in error alleging as follows : ‘ ‘ Plaintiff says that some time prior to May 17, 1887, she made a proposal by written application to the said board of education to teach the intermediate or primary department of the school of said district, for the customary time of nine months and…

Exceptions to the Court of Common Pleas of Wayne county. The defendant was indicted and placed on trial upon a charge of unlawfully administering medicine to a pregnant woman, with intent to procure a miscarriage.

. The action was brought in the court of common pleas to enjoin the auditor of Hamilton county from placing certain additional valuations and taxes on the duplicate as a charge against the plaintiff, and to enjoin the county treasurer from collecting said additional taxes or any part thereof. By the record it appears that prior to April 17, 1877, the plaintiff, Rudolph Rheinboldt, was a partner in the brewing firm of John Kauffman & Co., Cincinnati, Ohio.

Mandamus. This was an action brought by Richard H. Chapman, relator, a citizen and taxpayer of Mercer county, against the board of deputy state supervisors of Mercer county, and C. G. O. Miller, John… Held: at 1 o’clock p. m., and that a service of the entry and order in such behalf made, was served upon the board about 9 o’clock A. M., on said day.

The plaintiff in error brought an action in the •court of common pleas of Franklin county under section 6343, Revised Statutes, praying that a chattel mortgage, executed by said Charles Hen-nick to secure a debt, due from him to one of his creditors, be declared an assignment in trust for the benefit of all his creditors. Neither the court of common pleas nor the circuit court adopted the plaintiff’s view of the question.

The defendant in error sought to recover for injury by reason of the falling upon her of a bill board which had been erected in one of the streets of the village by citizens for the purpose of advertising a church festival.

The action below was commenced before a justice of the peace by defendant in error, against plaintiff in error, in replevin,' to recover a single harness with gilt trimmings. On appeal to the court of common pleas, the plaintiff below filed his petition, the defendant below filed his answer, but there was no reply. A trial before a jury resulted in a verdict for defendant below, finding him to be the owner of the harness, and assessing- his damages at thirty dollars.

Moore, as the surviving partner of the firm of McKnight & Moore, a partnership formed for the practice of the law, brought his action before a justice of the peace of Brown county, against Elizabeth J. Thomas, as administratrix of the es - tate of David Thomas, deceased, to recover for legal services rendered the defendant by the firm.

The suit below was an action brought by the plaintiff, Koelsch, against William Mixer, as administrator of B. A. Mecum, deceased, to recover contribution for money claimed to have been paid by the plaintiff as- a co-surety of the deceased.

E RROR to the Circuit Court of Meigs county. The original action was in ejectment, brought by the plaintiff in error, George W. Norris, against the defendant in error, Dennis Dains, in the court of common pleas of Meigs county, to recover possession of a tract of land containing eighty-three acres, more or less, situate in said county.

The plaintiff and defendant were at one time husband and wife, but had been divorced on the application of the husband on account of the extreme cruelty of the wife; in these proceedings the wife was allowed fifteen hundred dollars alimony, and awarded the custody of two small children, the fruit of the mari-iage, the maintenance of whom the decree made no provision; the two children continued to reside with their mother, and were maintained by her, from the time the divorce…

On September 18, 1879, the plaintiff in error, David Henderson, was received at the penitentiary to serve a five years’ sentence from Warren county.

<p>Powers of municipal corporations — Supervision and improvement of county road brought into, by annexation of contiguous territory —Section 4906, Revised Statutes — Removal of bridge as part of highway — -Failure of property owner to file claim for damages —Sections 2804 and 2815. Revised Statutes— When cannot enjoin improvement — Municipal powers with respect to streets a continuing trust — Section S288, Revised Statutes — Grants m derogation of public use strictly construed — Council members sole judges of necessity of street improvement — Their decision not subject to judicial revision■ — Constitutional law.</p> <p>1. Where part of a county road is taken into a municipal corporation by the annexation of contiguous territory, it is subject to the control and supervision of the municipal authorities, who may improve it by grading, or otherwise, at the expense of the corporation. Section 4906, of the Revised Statutes, does not apply to unimproved county roads.</p> <p>2. A bridge, in such portion of the road, over a railroad track, constitutes a part of the highway, and may be removed, when the council deem it necessary for the public convenience to make the crossing at grade.</p> <p>3. When the resolution declaring the necessity of a proposed street improvement has been passed, and published, and notice thereof given as required by section 2304, of the Revised Statutes, to an owner whose property will be taken or injured in the making of the improvement, and he fails to file his claim for compensation or damages, in accordance with section 2315, of the Revised Statutes, his claim is waived, and barred.</p> <p>4. An owner who has been afforded an opportunity of having compensation and damages assessed him, in the constitutional mode, for property taken or injured in the making of a street improvement, but failed to avail himself of the opportunity at the proper time, cannot enj oin the improvement, on the ground that compensation has not been paid or tendered him.</p> <p>5. The powers conferred on municipal corporations with respect to the opening, improving, and repairing of'their streets and public ways, are held in trust for public purposes, and are continuing in their nature, to be exercised from time to time as the public interests may require; and they cannot be granted away, or relinquished, or their exercise suspended, or abridged, except when, and to the extent legislative authority is expressly given to do so; such authority is not given by section 3283, of the Revised Statutes.</p> <p>6. Every grant in derogation of the right of the public in the free and unobstructed use of the streets, or restrictive of the control of the proper agencies of the municipal body over them, or of the legitimate exercise of their powers in the public interest, will be construed strictly against the grantee, and liberally in favor of the public, and never extended beyond its express terms when not indispensable to give effect to the grant.</p> <p>7. An ordinance which in terms authorizes a railroad company to erect new bridges of a specified description over the track of its ráilway where it crosses designated streets, the bridges to be kept in repair by the company, does not divest the municipal authorities of their control over the streets, norimpair their power to improve the same, nor entitle the railroad company to perpetually maintain the bridges as constructed ; but the ordinance and privilege granted by it are subject to a proper exercise by the municipal body, of its power to improve the streets, and make such changes in the grades as may be necessary to sub-serve the public interest.</p> <p>8. The comparative dangers in the use of grade and overhead crossings, and the relative public benefits and private disadvantages that may result from a contemplated improvement of the streets are matters for the consideration of the members of the council, who are the sole judges of the propriety, as well as of the necessity of the improvement; and their decision, when not transcending their powers, nor induced by fraud, is not subject to judicial revision.</p> <p>9. When a case is tried to the court, the extent to which expert testimony shall be received, rests largely in its discretion.</p>

<p>Life estate — Forfeiture for non-payment of taxes — Errors in tax sale — Section 2852, Revised Statutes.</p> <p>No forfeiture of the estate of a life tenant accrues, under section 2852, Revised Statutes, from the failure of the tenant to pay the taxes on the land, in consequence of which the land is sold at delinquent tax sale, where, by reason of errors or irregularities in levying the tax or in making the sale, no valid deed can be made by the auditor to the purchaser at the tax sale.</p>

<p>Street improvement — ■Condemnation of property — Special assessment by the foot front — Section 2264, Rev. Stat.</p> <p>Where a city appropriates land for the purpose of widening a part of a street, and provides by ordinance that the costs and expenses of the appropriation, shall be assessed by the foot front, upon the lots and lands abutting upon the part widened, and upon other lots and lands abutting upon the line of such street between certain designated points, such abutting lots and lands being declared by the council to be those which, in its opinion, will be specially benefited by the appropriation — Held:</p> <p>1. The assessment will be deemed to be on the foot front plan, as distinct from an assessment in proportion to the benefits that may result from the improvement, or according to the value of the property assessed, as provided by section 2264 of the Revised Statutes.</p> <p>2. The assessment will be held -valid and binding only as to such lots and lands as bound and abut on the improvement.</p> <p>3. The improvement, within the statutory meaning, has reference to the specific thing, of definite location, which is done or added to the street whereby it is improved. The term is not to be applied indiscriminately to any part of the street because it may have been improved, in the sense of having been benefited, by a change or addition made elsewhere on the street.</p> <p>4. Where a strip of ground from one side of a street is appropriated for the purpose of widening such street, the lots and lands fronting on the opposite side of the street at the part widened, will be held to abut on the improvement, although the street may intervene between the abutting lots and lands and the strip of ground appropriated.</p>

<p>On exceptions of the prosecuting attorney to the ruling’s of the court of common pleas of Brown county.</p>

<p>Error to the Circuit Court of Summit county.</p>

<p>Error to the Circuit Court of Henry county.</p>

<p>Error to the Circuit Court of Seneca county.</p>

<p>Mandamus. On the 8th day of March, 1894, one Sarah Snell was indicted for a felony in Wayne county.</p> <p>She moved in the court of common pleas for a change of venue, and the court, Ending that she could not have a fair and impartial trial in Wayne county, sustained her motion and ordered that she he tried in the county of Stark, which adjoins Wayne, but is not in the same judicial district. The original indictment, and certified transcript of the proceedings were sent to the clerk of the court. of common pleas of Stark county. The defendant, Hon. Thomas T. McCarty, who is a judge of the court of common pleas holding the term of said court in Stark county, being of the opinion that his court is without jurisdiction to try the accused, refuses to proceed.</p> <p>The relator prays for a writ of mandamus commanding him as such judge to proceed with the trial of the said cause.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>The plaintiffs in error, the directors of the Cincinnati University, instituted in the circuit court of Hamilton county proceedings in quo wa/iranto to oust the defendants in error from the positions heretofore held by them, of trustees of the Cincinnati College. The circuit court denied the relief sought and dismissed the petition of the relators, whereupon they brought the record to this court to be reviewed on error.</p>

<p>Error to the circuit court of Hancock county.</p> <p>This action in the court of common pleas was for the recovery of the value of certain personal property, delivered by Caleb L. Hatch, plaintiff below, to the Lake Erie and Western Railroad Company, at Sandusky, Ohio, to be shipped to Findlay, Ohio, over its line of railroad, and there to be delivered to Mr. Hatch, in the ordinary course of business. Upon the arrival of the goods at Findlay, they were placed into the warehouse of the railroad company, and notice sent to Mr. Hatch. Before he called for them the warehouse was burned, and the goods consumed in the fire. The court of common pleas, on the trial of the ease, found its conclusions of fact and law separately, as follows:</p> <p>“First — The goods mentioned in the petition were received by the defendant as a common carrier at Sandusky City, Ohio, from the plaintiff, for transportation on defendant’s railroad to Findlay, Ohio, for hire, and the said goods arrived at their destination at Findlay, at 7:30 o’clock P. M., on February 2, A. D. 1891, and on the morning of the 3d day of February, A. D. 1891, said goods were removed from defendant’s cars by defendant’s agent and employees, and placed in defendant’s freight warehouse about 7 o’clock A. M.</p> <p>“Second — At 9 o’clock in the forenoon of February 3, 1891, the defendant deposited a notice printed and written on a postal card, in the street letter box of the postof&ee department, and that such card was postmarked at 1:30 P. M. of the same day, and was received by the plaintiff at 6 o’clock in the afternoon of that day, which card informed the plaintiff of the arrival of the goods at destination.</p> <p>“ Third — On the morning of the 4th day of February, A. D. 1891, at 2 o’clock A. M., without fault or negligence of the defendant-, the said freight warehouse of defendant was destroyed by ñre, and the plaintiff’s goods were also destroyed and lost to plaintiff by such fire, and plaintiff demanded the goods on the morning of the 4th of February, 1891.</p> <p>“Fourth — The value of the goods so destroyed, which were owned by plaintiff, was one 'hundred and fifty dollars. That it is and always has been the custom of defendant to give notice of the arrival of goods at their station in Findlay, Ohio.</p> <p>And as its conclusions of law upon the above facts, the court find that:</p> <p>‘ ‘First — The defendant is liable as a common carrier to the plaintiff for the value of such goods.</p> <p>“Second — -The plaintiff ought to recover from the defendant the sum of one hundred and fiffy dollars.</p> <p>“It is therefore considered by the court that the plaintiff, Caleb L. Hatch, recover of the defendant, The Lake Erie and Western Railroad company, the said sum of one hundred and fifty dollars, together with his costs, taxed at $-. ”</p> <p>Exceptions were taken by the railroad company, and petition in error filed in the circuit court, and that court affirmed the judgment of the court of common pleas. . Thereupon the railroad company filed its petition in error in this court, seeking to reverse both judgments below.</p>

<p>Annexation of municipalities — Unconstitutional statute amended into constitutional one — Consejil of municipal authorities not necessary to annexation — Submission of question to electors— Constitutional law — Validity of act of April IS, 1893, as amended April 24, 1893 (90 Ohio Laws, 263 and 265).</p> <p>1. An amended section of a statute takes the place of the original section, and must he construed with reference to the other sections, and they with reference to it; the whole statute, after the amendment, has the same effect as if re-enacted with the amendment, and hence, an unconstitutional statute may be amended into a constitutional one, so far as its future operation is concerned, by removing its objectionable provisions, or supplying others to conform it to the requirements of the constitution.</p> <p>2. The- act of April 13, 1893,. as. amended April 24, 1893, authorizing cities of the first grade of the first class to annex contiguous municipalities of other grades and classes, is a subsisting and constitutional law.</p> <p>3. It is not a valid objection to the statute, or to annexation under it, that a municipal corporation may be so annexed without the consent of its constituted authorities, or of its inhabitants; nor, that the taxable property within such municipality will become subject to taxation for the payment of previously incurred indebtedness of the city to which the annexation shall be made.</p> <p>4. The statute does not require that, at the election held to determine whether annexation shall be made, the question be so submitted that the electors of each municipality sought to be annexed may vote for or against its annexation; nor is it essential to the annexation, that a majority of the votes cast by the electors of any such municipality shall be in favor of it. The question to be voted upon, is whether all of the municipalities , included 'in the proceeding shall be annexed, when it is sought to annex more than one, and the proposition is deemed carried if a majority of the aggregate vote cast be in favor of annexation.</p>

<p>Error to the Circuit Court of Washington county.</p>

<p>Exemptions allowed married woman — -Living apart from husband —Section 5319, Revised Statutes.</p> <p>Under section 5319, of-the Revised Statutes, a married woman is entitled to the benefit of all exemptions allowed by law to the heads of families, though she be living apart from her husband, and have no child or children living with, or supported by her.</p>

This ease was tried on appeal in the circuit court of Trumbull county.

This action was brought in the court of common pleas of Cuyahoga county, by the defendant in error, Green, against the plaintiff in error, The Cleveland Leader Printing Company, and at the January term, A. D. 1891, a judgment was rendered for the defendant in error; thereupon the plaintiff in error instituted proceedings in the circuit court of said county to secure its reversal.

Mrs. Diantha M. Brooks brought action against Mrs. Eliza Marsh and Mrs. Jennett Pratchett, praying for the taking of an account of the amount due upon a certain judgment rendered in favor of Mrs. Pratchett and against Mrs. Marsh, which had been assigned to Mrs. Brooks as security for the payment of a $400 note held by Mrs. Brooks, against Mrs. Pratchett, on which judgment execution had issued and levy had been made on the lands of Mrs. Marsh, and for an account of the amount…

James Robb died the owner of certain lands in Green township, in Hamilton county, the title to which was in such an entangled condition as to induce his administrator, Charles A. Kebler, to file his petition for the sale of the lands in the court of common pleas of Hamilton county for the payment of debts, making all the heirs of James Robb defendants, the heirs being also the only creditors.

The original action was brought by the plaintiffs in error to contest the validity of the will of Uriah Reid.

<p>Error to the Circuit Court of Licking county.</p>

<p>Duress — Deed executed under duress voidable, not void — Neither party is entitled to jury, when.</p> <p>1. A deed executed during the duress of the grantor is not void, hut voidable only.</p> <p>2. On the trial of issues joined by a denial of the petition of the grantor, alleging that the deed was executed under duress, neither party is entitled to demand a jury.</p>

<p>Error to the Circuit Court of Ross county.</p> <p>The action below was for the unlawfuLMllingbof ITudnell’s horse bv__a horse belonging to plaintiff in error. The evidence at the trial tended to show that Hudnell’s horse was rightfully in a pasture field belonging to one Houser; “that under a contract with said Houser, plaintiff had the right to keep the horse in question in Houser’s pasture field on pasture, and that on the night he was killed, the said horse was in said pasture field, under sald-eontract, along with horses belonging to other parties_ who had like contracts, and who, as well a.s'The plaintiffs paid a certain price per month for said jfight,--and plaintiff ofiierad-oiher testimony tending to prove that defendant’s horse had broken over'~the_p.ar.t-af— said-Jenee-to — be-k-ept up by defepda.rit’s wife, into the field of said Houser, and had while in sa,id field, attacked and_killed plalutiff’s .hause, and testimony tending to show that defendant’s horse was breachy and that he knew it, and tending to show that defendant’s horse was vicious and that he knew it, and testimony was offered by defendant tending to show to the contrary.”</p> <p>The court charged the jury, among other instructions, the following:</p> <p>“(1.) If the defendant’s horse, was at the time, trespassing in plaintiff’s field, on plaintiff’s land, or on the land of a third party where plaintiff was pasturing his horse by the month, for a consideration paid by plaintiff to such owner, and there attacked and killed plaintiff’s horse, defendant is liable for the injury, whether he knew or not of the vicious propensity of his horse.</p> <p>“(2.) If the jury find that the defendant’s horse was in pasture on his wife’s premises, and while there broke over her part of the partition fence, separating her said lands from the field in which plaintiff’s horse was being rightfully pastured by him, then the defendant’s horse was unlawfully in the place where the plaintiff’s horse was on pasture, and in such case, if the jury find that he killed plaintiff’s horse, the defendant is liable to plaintiff for the injury, whether his horse was in fact vicious or not, and whether he knew of such viciousness or not.”</p> <p>A verdict for plaintiff followed and judgment thereon, to reverse which this proceeding in error is brought.</p>

<p>Error to tne Circuit Court of Williams county.</p> <p>The facts in the case are as follows:</p> <p>William Salzman resided in Bryan, Williams county, Ohio. On the morning of the 26th day of April, A. D., 1887, he with his wife went on an excursion train to Toledo, in company with a number of his brother Odd Fellows and their wives, to attend the dedication of the Odd Fellows’ Temple at the latter place. At the conclusion of the ceremonies in the evening, he with some of his friends visited some of his acquaintances around the city until about nine o’clock, when he went to the Union Hotel and thence with his wife about eleven o’clock to the Union Passenger Station to take the train home.</p> <p>The passenger train was a special one made up on purpose to carry the excursionists to their homes, and consisted of a locomotive and four passeng-er coaches, all properly connected together continuously one after the other, properly warmed and lighted, and which offered ample and abundant convenience and accommodation for the carriage of the plaintiff and his wife, and all the passengers taking passage upon said train.</p> <p>After the train had pulled out of the station, but before proceeding on its way, there had been placed and attached to the rear of said train, as a protection and guard to said train, and for the sole use of the trainmen, a caboose car, provided with all the tools, lanterns and implements for an emergency. The platform of the caboose was several inches lower than the platform of the passenger coach, and the space between the two platforms was from twelve to fifteen inches. ,</p> <p>Salzman and his wife had taken seats in the rear passenger coach, and the train proceeded on its way. It had not gone far before a man by the name of Charles Shawley, a brother Odd Fellow, and who occupied the seat immediately in front of Salzman, was’ taken sick and was suffering great pain, occasioned from scrotal hernia.</p> <p>Some of the friends of the sick man sent for Mr. Wm. Darby, a friend of the sick man, who in turn went for Dr. Rotsel, also on the train. The doctor attended Mr. Shawley, but was unable to reduce the hernia in the seat where the sick man was. He said it was necessary to find some place where the man could be put on his back, and his lower clothes removed. The passenger car was filled principally with ladies, and that was not a proper place to expose his person.</p> <p>Thereupon Mr. Darby went for Conductor Covert and told him the trouble, and asked him if there was not some place on the train where they could take the man and lay him on his back. Conductor Covert said there was a caboose at the rear of the train, having seats at the side, and also a cot where they could take the man when the train stopped at the next station.</p> <p>Mr. Darby went back into the caboose to see and arrange for Mr. Shawley’s coming. The .conductor informed his rear brakeman of the trouble, and that when the train arrived at the next station, the man would be moved back into the caboose, and to look after and attend to same, and not to give any signal to start the train until everything was well.</p> <p>As the train began to slow down for the next station, four persons, viz: Dr. Rotsel, Messrs. Campbell, Salzman and Elliott, picked Mr. Shawley up out of the seat and started towards the rear end of the car. The brakeman at that time, passing back to the rear end of the car, stopped them, requesting them to take plenty of time and not to come out onto the platform until the train had come to a full stop.</p> <p>When the train stopped, the brakeman opened the door, and told the men carrying Shawley they could come on.</p> <p>Thus far the facts are undisputed. On part of plaintiff in error it is claimed, in addition to the foregoing, that the brakeman, after he opened the door of the car and told them to come on, immediately crossed over and down the caboose step to the ground; stepped between the passenger and caboose platforms, held up his lantern to light the way across, and as the men came out onto the platform, called out to them4 4 Look out and be careful in stepping across;” that this warning and notice was heard by all those carrying Mr. Shawley, as well as Mr. Shawley himself, and including also- Mr. Salzman; that the two ahead and in advance, R’otsel and Campbell, heard the warning* and stepped down and across; that Mr. Salzman heard the notice and warning, but mistook or misunderstood the call, and in stepping, stepped a little short and between the two platforms, fell and was injured.</p> <p>On part of defendant in error it is claimed that the conductor was present and asked Mr. Salzman to assist in carrying the sick man to the caboose; that there was no light on the platform; that it was not sufficiently lighted to enable a person to cross over to the caboose in safety; that the warning “Look out and be careful in stepping across,” came just as the step forward was being made, and coincident therewith; that defendant in error had no notice or knowledge of the condition of the step, and that there was a sudden jerk of the car by the engine just as the step across was being made.</p> <p>A verdict was returned in favor of plaintiff below, and a motion filed by defendant below for a new trial, which motion was overruled, and judgment entered on the verdict, to which defendant below excepted.</p> <p>On petition in error the circuit court affirmed the judgment. Thereupon a petition was filed in this court to reverse the judgments below.</p>

<p>Error to the Circuit Court of Scioto county.</p> <p>Action to recover'possession of real property, and the rents and profits of the same. The answer denies title in the plaintiff. The jury were instructed to return a verdict for defendants, ■which they did. Judgment on the verdict was affirmed "by the circuit court.</p> <p>The question presented is whether plaintiff has a legal estate in the lands. There is no controversy concerning the facts, and a sufficient statement of them is contained in the opinion.</p>

<p>Competency of legislature as to special taxing districts — Uniformity of levy — Constitutional law — Act of May SI, 1894 ( 91 Ohio Laws, 84%).</p> <p>1. It is competent to the legislature to provide for the'creation of a special taxing district; but, in such case, the tax must be levied by a uniform rule on all property in the district.</p> <p>2. The act of the general assembly to provide higher education in counties containing cities of the first grade of the first class, passed May 21, 1894 (91 Ohio Laws, 842), is unconstitutional and void, by reason of the want of uniformityin the mode provided for levying the requisite tax, contained in the second section of the act.</p>

<p>Assessment for street improvement — Omnibus resolutions — Act op January 11, 189S (90 Ohio Laws, 5).</p>

<p>Summoning jury — Sections 5189a and 5189b, Rev. Stat. — Act oj April 6,1892 (89 Ohio Laws, 222) — Act of April 24, 1898 ( 90 Ohio Laws, 254) — 89 Ohio St., 658, construed.</p>

<p>Dogs at large — Liability to owner for killing — Section 7008, Rev. Stat. — Act-of May 4,1891 (88 Ohio Laws, 518).</p> <p>Under section 7008, Revised Statutes, as amended May 4,1891, any person may, without liability to the owner, kill a dog running at large away from the premises occupied by such owner and unaccompanied by any person, although such dog is listed for taxation, and the tax paid when due.</p>

<p>Error to the Circuit Court of Payette county.</p>

<p>Error to the Circuit Court of Darke county.</p>

<p>Error to the Circuit Court of Wayne county.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p>

<p>Error to the Circuit Court of Richland county.</p>

<p>Error to the Circuit Court of Shelby county.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p>