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Harris v. Railway L. & P. Co.

No inconsiderable part of the not inconsiderable brief of the plaintiff-in fact thirty-six out of its sixty-five pages-is devoted to this one question. A bead roll-it might be called the long roll-of 542 cases are cited in support of this one contention. The brief is quite a misnomer. It is not brief. In this array, bristling with citation, five times the roll of this Union, from Alabama to Wisconsin, is called and then the briefer invades England by running the blockade or sailing in judicial Zeppelins. Lest complaint should be made of want of good measure, a lot of cases from the Supreme Court of the United States are thrown in to make the scale beam kick high. In all this ransacking of the armories of case law for weapons to work a reversal, scant attention is paid to a state still on the legal map-to-wit, Ohio. It would, perhaps, be over-putting it to say that in this brief without brevity, Ohio has not been paid "the cold respect of a passing glance," but the fact is pretty near that. The case upon which in our opinion this allegation of error must decisively turn, is not mentioned in the main brief of the plaintiff. It is only when it is brought forward under a vigorous claim of being a binding authority here, in the defendant's brief, that some attention is paid to it in the reply brief of the plaintiff. It is the case of Bellefontaine & Ind. Ry. v. Bailey, 11 Ohio St. 333, the syllabus whereof is as follows:

"In an action to recover damages against a railroad company for the killing of plaintiff's horses by means of the negligence of the servants of the company 'in running and management of a locomotive and train, the engineer in charge of the locomotive at the time of such killing, who saw the horses when they came upon the track, who is shown to be acquainted with the business of running railroad locomotives and trains, and had been engaged in such business for five years, is competent to testify as an expert, upon questions in respect to the management of locomotives and trains, and to give an opinion whether, in view of the distance between the engine and the horses when the latter came upon the track, it was possible to avoid the injury complained of."

Because of the long roll referred to, we have examined this

Richland County Appeals.

case with unusual care, to see if it is to be distinguished to any material effect from the case at bar, and we do not see why it can be. We do not see why it should be. The reasoning that must, coercively as we think, be brought to bear upon its application to this case, appears to us to be conclusive. The motormen witnesses were conversant, technically as well as actually, with the workings of their cars and the foundation in this respect for the introduction of expert and opinion testimony was sufficiently laid. The fact that these experts led what may be called a dual life in this particular-that is, that they were expert mechanicians and at the same time practical motormen should not, we think, detract from the value of their testimony. Rather, it should seem, it would add to it in its application to a concrete case in hand, if they were truthful men. They can not divorce themselves from this two-fold relation. The fact that it is double is but an accident of the particular situation. There is nothing disclosed by the record looking like dishonesty in their testimony. If they testified under the fear of losing their employment with the defendant company, it is not apparent here. And if it was, it would be a matter of weight and not competency. And in such case a plaintiff almost never fails to get the benefit of the fact by inveighing to the jury against witnesses who swear with the customary halter of fear of losing their jobs around their necks.

So much for the underlying principles involved.

We have examined the matter also in the light of Judge Brinkerhoff's rather informing opinion in the case cited. His reasoning and the authorities marshalled by him to support it are cogent and convincing. They seem to put the decision on such satisfactory grounds that it has not since been disturbed, though often invoked and often challenged, no doubt, and as we must think followed in cases to which it has been thought properly to appertain.

In any event, if applicable to the case in hand, it is conclusive on us. We think it is so applicable, and applying it we find that the ruling of the trial court in admitting the testimony in question was not obnoxious to the complaint lodged against it

Harris v. Railway L. & P. Co.

in this proceeding. We are confident that the weight of authority really bearing on this precise question supports and reinforces this conclusion.

The next assigned error is in substance and effect-although differently worded in the brief-that the verdict and consequent judgment is against the manifest weight of the evidence and is not supported by the evidence.

That question, in this case, was so peculiarly a matter for the jury to determine when properly instructed by the court, that we do not feel justified in canvassing it in much detail. Each side has its view of the case, and each accordingly directed its evidence to that view of the facts which sustained its contention. That this resulted in narrations radically in conflict with one another, was to be looked for. It was for the jury to say with which side they found the truth to reside, when they applied the law the court gave them to the facts before them. By their verdict they have spoken and we can find nothing in their verdict that is manifestly against the facts the jury might appropriately have found in sifting the testimony brought before them and applying the law to these. We are not a jury nor a substitute for a jury. If we were, we are not prepared to say that upon the facts disclosed by this record we should have found differently.

In regard to the next assignment of error, to the effect that the requests to charge before argument should have been refused, our opinion is that the point is not well taken. To our apprehension they state the law of Ohio appertaining to the is

sue.

The fourth allegation of intervening error is that the court sent the written requests to instruct before argument to the jury in their retirement, to be used by them when they should consider of their verdict. In so doing the court did only what we understand to be the bidding of the statute in that respect. Otherwise the right to have the instructions framed in writing and given without change in verbiage would, it should seem, be a rather barren right. There was no error in this.

It is next complained-seemingly-that the court sent the

Richland County Appeals.

written instructions to the jury, but did not send the general charge, so that the two might be comparatively considered in connection with each other-which it is said should have been done.

As the general charge was wholly oral, as is said, how it could have been thus sent, except through the friendly aid of a dictograph, is not perceived. The fact seems to be that counsel for the plaintiff were taken by surprise by the oral charge and did not think of asking to withdraw a juror-not till now. Counsel were wrong about this. They should not be surprised at anything. "Semper paratus" is, or should be, their slogan, instead of "Onward, Christian Soldiers"-to a job, or in this case a verdict.

The last assignment is leveled at the generally bad character of the charge as given to the jury.

The complaint is a little nebulous in our estimation, when we come to details. We do not care, therefore, to discuss the matter very minutely. What the trial court should have done if requested to give instructions in charge to the jury, if those given were deemed insufficient, need not be discussed where no such request was made. What should have been charged without request, because it was in the case, is another matter. Our attention in this respect is challenged to the claim that the doctrine of the last chance, and possibly other matters, was in the case and should in fairness have been dealt with by the court below in its charge to the jury. To this it is answered that the doctrine of the last chance must be pleaded to entitle a party claiming its benefit to an instruction upon it, and that without so pleading it, it is not to be considered. The reply to this proposition is that the office of pleadings is to present in an orderly form the issues to which all the relevant evidence in the case must be directed, so that such is the argument-the whole issue consists of what arises from the evidence adduced, the evidence constituting the real issue, the function of the pleadings being to conform the latter to the former, as it may be developed upon the trial. Upon a rational footing, we should think the latter view to be the true view. Even the opinion of the Su

Harris v. Railway L. & P. Co.

preme Court, in Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844), does not seem to be to the contrary. It is true that the syllabus there says:

"3. Since the plaintiff can recover only upon the allegations of his petition, he can not recover upon negligence, which warrants the application of the rule of 'last chance' without alleging it in his petition.'

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Yet Judge Davis seems to flinch from so guarded an interpretation as this, for in the opinion in the same case, page 249, he explains:

"It is clear, then, that the last chance rule should not be given as a hit or miss rule in every case involving negligence. It should be given with discrimination. Since the plaintiff can recover only upon the allegations of his petition, if there is no charge in the petition that the defendant after having notice of the plaintiff's peril could have avoided injury to the plaintiff and there is no testimony to support such charge, the giving of such charge would be erroneous.

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Here we have the Supreme Court of Ohio against the Supreme Court of Ohio, in the same case. But, as the syllabus is supposed to state the law rather than the opinion, in case of conflict between the two, perhaps we should follow the former.

However, later, in Palmer v. Humiston, 87 Ohio St. 401 [101 N. E. Rep. 283], the syllabus says:

"1.

The issues of a case are defined by and confined to the

pleadings."

If words level to the comprehension of lawyer and layman alike go for anything at all, it would seem that this last deliverance is fatal to the contention made here.

But hold! In Rayland Coal Co. v. McFadden, 90 Ohio St. 183, the same Supreme Court is in the syllabus made to say:

"In such case the issue of contributory negligence is not made by the pleading, but is raised by the evidence properly offered by the parties in support of their respective claims as made in the pleadings. The issue of contributory negligence

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