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Tuscarawas County Appeals.

It is also urged that the court below erred in refusing to give to the jury, before argument, certain written requests submitted to said court by the defendant below; and in giving in its charge to the jury certain written requests of the plaintiff below, to which the plaintiff in error excepted at the time. The requests which said court refused to give to the jury are No. 1 and No. 2, which, for obvious reasons, under the undisputed evidence in the case, we think were properly refused.

It is also contended that said court erred in its general charge to the jury upon the subject of looking and listening for an approaching car before going upon the track of said company, in this, that said court failed to give to the jury the rule laid down in New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130], wherein it is held that,

"The looking required before going upon a crossing should usually be just before going upon the track," etc.

This is just what the trial court did charge.

Written request No. 4 submitted by counsel for the defendant below to be given in the charge to the jury before argument, reads:

"The court charges you as a matter of law that it was the duty of Edmund F. Jenkins just before he stepped upon the tracks of the defendant company to both look and listen for an approaching car," etc.

The foregoing request was given to the jury by said court verbatim. Under sub-division 5 of Sec. 11447 G. C., it was the undoubted right of the plaintiff in error to have the jury instructed upon the law of the case; and to this end it was the duty of the trial court to give in the charge to the jury all proper and reasonable requests made by the plaintiff in error if they contained sound propositions of law. But it is likewise true that the trial court was not called upon to repeat such instructions, for if they were once given, the duty of said court was discharged, there being no necessity to repeat the same. instructions even though in different and varying forms.

Of the various written requests to be given to the jury, before argument, submitted by the plaintiff below, it appears that

Traction & L. Co. v. Jenkins.

but one of them was given, and that related to the question of damages, where the rule as given is approved by the courts of this state generally.

It is also urged that the verdict of the jury is unsupported by the evidence; that it is against the weight of the evidence, and contrary to law. On account of the insistence of counsel we have carefully read this entire record with special reference to this assignment of error. Notwithstanding the claim made by the conductor in charge of the car upon which the decedent and his son rode from New Philadelphia to the Midvale switch the evening in question, we think the testimony of the son and other passengers on said car clearly showed that said conductor did volunteer the information to the deceased and his son that they could get off said car at said switch, and that decedent after the car stopped at said place, did get off.

Whatever he may have done before that evening in alighting there from a car when in motion is immaterial, as the uncontradicted evidence is that on this evening he alighted from the car after it had stopped; and whether he exercised ordinary care in attempting to cross the company's track after getting off of said car was a question for the jury in view of all the circumstances in the case. Both the alleged negligence of the company and the alleged contributory negligence of the decedent were questions of fact for the jury; and in their determination of these questions it was proper for them to consider whether or not the plaintiff in error had in its employ and service at that time experienced and competent servants managing said car, having in its charge passengers whom it had undertaken to safely deliver at their destination; whether or not the plaintiff in error, by its agents and employees, signaled the backing of said car on the track, and had at said place an employee on the rear of said car while so backing, as called for by the rules of said company, and as a proper regard for the safety of persons who might be crossing said track, in the exercise of ordinary care, required; and whether or not the machinery and equipment of said car was in proper repair. We refer to these features of the case because of the evidence introduced upon the

Tuscarawas County Appeals.

trial respecting them and which it was the province and duty of the jury to consider in connection with the charge of negligence here made against said company. Indeed, as we view the case, the determination of the above questions may have determined the action of the jury, and these questions being questions of fact, it was the province of the jury to pass upon them; and having passed upon them, we do not think that this court, as a reviewing court, under the evidence presented in said bill of exceptions, should disturb the finding of the jury.

As stated, we have read this entire record with no little care, and we think that the case was fairly tried; that the rights of the defendant below were properly protected and cared for by the action of the court below in its charge to the jury; that said charge was exhaustive and fair to both parties; and taking it all in all we are of the opinion that the verdict of the jury is not unsupported by the evidence, nor against the manifest weight of the evidence, nor contrary to law; and furthermore, we are of the opinion that the action of said jury by their verdict, and the judgment of said court, express nothing further than the rendition of substantial justice between the parties hereto. In the trial of cases occupying no little time it is not uncommon for technical errors to intervene; but where all the evidence taken upon the trial, including the charge of the trial judge, is before a reviewing court and such court determines that under all the circumstances substantial justice has been done, the judgment will not be reversed for error in the charge of the court below. Way v. Langley, 15 Ohio St. 392; Baird v. Telephone Co. 30 O. C. C. 107 (10 N. S. 163).

The judgment of the court of common pleas will be affirmed, at the costs of the plaintiff in error. Exceptions may be noted.

1

Spangler v. Beare.

WILLS.

[Perry (5th) Court of Appeals, May 2, 1913.]

Voorhees, Shields and Powell, JJ.

SOLOMAN E. SPANGLER V. JASPER C. BEARE ET AL.

Acceptance of Bequest not a Bar to Contest of the Will.

The acceptance of a bequest of personal property does not bind
the beneficiary not to contest the will, as in the case of the
acceptance of real property, but the money or property so
received may be returned to the executor and the legatee left
free to contest the will.

D. M. Barr and T. B. Williamson, for plaintiff in error.
John Ferguson and Stanley B. Crew, for defendants in

error.

PER CURIAM.

This was an action commenced in the court of common pleas by the plaintiff in error, who was plaintiff below, against the defendants in error to set aside the will of one Emanuel Beare, deceased, which before that time had been admitted to probate and record in the probate court of this county.

The petition was in the usual form, alleging that the paper writing, purporting to be the will of said Emanuel Beare, deceased, and which had been admitted to probate and record in said probate court was not the last will and testament of Emanuel Beare, deceased, without specifying any ground or reason why the same was not such last will and testament.

An answer was filed, denying the averments of the petition, and alleging as a special defense that by the terms of such will, as probated, Solomon E. Spangler was given a legacy of $4,000, which legacy, with its accumulated interest, had been received by him from the defendant, Jasper C. Beare, as executor of the will of said Emanuel Beare, deceased, and who had thereupon receipted for the same in full settlement of all his rights under such will as a legatee.

To this answer a reply and an amended and a supplemental reply were filed, the effect of which was to tender back to the said executor the amount of money received by the plaintiff,

Perry County Appeals.

who admitted its receipt, but who claimed that such acceptance was procured by fraud and misrepresentation of the other defendants named in the proceedings, which money, however, the executor refused to receive, when the same was deposited with the clerk of courts as a tender for that purpose.

The question presented to the jury for determination was whether or not the testator, Emanuel Beare, had executed another and subsequent will to the one that had been admitted to probate, by the terms of which the former will had been revoked, and that the same had never been republished as and for his last will, and the same was therefore void.

Numerous errors as to the admission and rejection of testimony were insisted upon in this court. Also it is urged that the court erred in its charge to the jury, by which the plaintiff was prevented from having a fair trial. We have examined the entire record with reference to the assignments of error presented by the petition in error, and we are of the opinion that in the charge of the court there was error which was misleading to the jury and prejudicial to the rights of the plaintiff in error. The court charged in substance, and it is to be found on page 7 of the charge or 145 of the bill of exceptions, that if the jury find that plaintiff had accepted the $4,000, and that such acceptance was not brought about by fraud and misrepresentation of the executor but was accepted by plaintiff without such fraud and misrepresentation that that would be the end of the case. Further, that the jury need not go into any further questions because the mere acceptance of the legacy under the will would bind plaintiff from making any contest in the court of common pleas at all. This court is of the opinion that this proposition is not the law in Ohio when applied to a legacy or gift of personal property, but is applicable only when the gift or device is a gift of real estate. We are of opinion that such acceptance of a legacy could be revoked and the money returned, whereupon the rights of the legatee to contest the will would stand just as though no such payment had ever been made and we think that this charge is such error that the judgment of the court of common pleas should be reversed.

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