Hamilton Court of Appeals. ing the car without notice, before the plaintiff had an opportunity to be seated," etc. It is not negligence per se to start a street car before a passenger is seated therein. The objection made to this charge, which we think is well founded, is that it implies that the defendant company in this case was negligent if its employees started the car in question before plaintiff had reached a seat. Nowhere in the general charge do we find any explanation of this language or any language which could be construed as a refutation of the implication to which it is susceptible. It may be, and it is quite probable, that the learned judge did not intend to convey to the jury an instruction to the effect that the starting of a car while a passenger was yet unseated is negligence. It was, however, charged in the petition as one of the grounds of negligence that the car was so started, and a fair interpretation of the language used by the trial court would lead the jury to believe that if they found that the car was started before Burkhardt had an opportunity to be seated that the company would be guilty of negligence. This is not the law, and the question having been raised by the pleadings and the evidence it was incumbent upon the court to charge the jury clearly upon this matter, and its failure so to do was in our opinion prejudicial error. The next alleged error considered is also based upon the language of the court in its general charge as found on page 111 of the bill of exceptions, as follows: "The defendant is a common carrier of persons, but as such does not insure its passengers against all hazards incident to their transportation. "It is required to exercise through its servants, such as the conductor and motorman, a very high degree of care, skill, diligence and foresight, such as is and should be exercised by very careful and skillful railroad employees under similar circumstances, to avoid injury to those whom it carries as passengers." We are of the opinion that this incorrectly states the degree of care required of those in charge of the car even to a passenger. and that, too, to the prejudice of the defendant company. The Traction Co. v. Burkhardt. degree of care required of a carrier towards a passenger is not to be measured by the care that would be exercised under similar circumstances by very careful and skillful employees. The correct rule, it seems to us, is that the carrier owes to the plaintiff the highest degree of care which ordinarily careful and skillful persons would use under similar circumstances. If the rule laid down by the trial judge were the correct one, then all carriers of passengers would be required as a matter of self-protection to employ only "very careful and skillful" men. The rule laid down by the trial court in this case could not be observed by any other kind of men, and the carrier would therefore be liable unless the servants or employees connected therewith were very careful and skillful men. The next alleged error urged by counsel is based upon the refusal of the court to give special charge No. 2: "If you find that the plaintiff's right hand was crippled by the loss of two fingers, and that when he boarded the car his left arm was incumbered by one or more bundles, I charge you that under such circumstances it was the duty of the plain tiff to exercise greater care for his safety than would have been demanded of him had his right hand not been crippled and had he been free from bundles or packages." We think that the court was correct in refusing to give this charge. The words "greater care" as used in the charge requested are misleading and not permissible. The plaintiff was required to exercise ordinary care, and if a special instruction as to his duty was deemed necessary by counsel it should have been to the effect that in determining whether plaintiff exercised ordinary care the jury should consider his crippled condition and any burden or impediment to the free use of his arms or hands which may have been present in the case. The other ground of error to which our attention has been especially called is that designated by counsel for plaintiff in error as "misconduct of the plaintiff in the trial below." Briefly stated this charge is based upon the claim of plaintiff in his petition and during the trial that prior to this accident he was an able-bodied man, never sick, and always able to work; Hamilton Court of Appeals. and that after the verdict of the jury was returned it was first ascertained by counsel for for the traction company that this same plaintiff had, several years before, been injured while in the employ of a printing company in this city, and had brought an action for damages against said printing company alleging in his petition in that case that he was by said injury so received by him, made sick, feeble and permanently disabled. We do not deem it necessary to enter at length upon a discussion of this point since from the view we take of the case it must be reversed on other grounds and remanded for a new trial. There seems to be no question of the relevancy of the evidence, and we deem it unnecessary to say anything further about it. For the reasons given, the judgment will be reversed and the cause remanded to the court of common pleas for a new trial. Jones and Gorman, JJ., concur. COURTS. [Columbiana (7th) Court of Appeals. April 8, 1915.] Houck, Pollock and Metcalfe, JJ. (Judge Houck of the 5th district sitting in place of Judge Spence.) *JOHN H. SMITH V. GEORGE FRESHWATER ET AL. Effect of Objection to Jurisdiction Not Destroyed by Subsequent Answer on the Merits. Where a defendant has interposed by motion an objection to the jurisdiction of the court over his person, he does not upon the overruling of the motion submit to the jurisdiction by filing an answer in which he challenges the jurisdiction of the court in the first defense and in a second defense answers to the merits of the cause. [Syllabus by the court.] ERROR. W. F. Lones and Geo. T. Farrell, for plaintiff in error. Smith v. Freshwater. Billingsley, Moore & Van Fossan and Hughes & Tipplehorn, for defendants in error. HOUCK, J. The parties to this case stand here in the same relation to each other as in the court below. The plaintiff brought suit in the common pleas court of this county against the defendants, claiming damages from them in the sum of $5,000, as the result of injuries and damages to a vein of coal belonging to plaintiff. Summons was issued for all of the defendants, but was only served upon two of them. The defendants, George Freshwater, Lee Freshwater, Philip Freshwater, Milton Freshwater and Elmer Freshwater, were not served with summons. Their attorney appeared and filed a motion solely and wholly for the purpose of attacking the jurisdiction of the court over their person and asked that the suminons be quashed. Why the motion was filed we do not know, and the record does not disclose. They then filed an answer, setting up two defenses: First, attacking the jurisdiction of the court over their person; second, answering to the merits of the cause set out in the petition of plaintiff. The cause was heard, and the action was dismissed as to them, and to their dismissal the plaintiff excepts. The only question to be determined is, whether by answering in the first defense in which they challenged the jurisdiction of the court, they submitted themselves to the jurisdiction of the court, by interposing a second defense in which they answered to the merits of the cause? We think not. In support of the view of the court in this case, we desire to call counsel's attention to the case of Long v. Newhouse, 57 Ohio St. 348, 368 [49 N. E. Rep. 79]. We might say, in the first place, as the court views it, he who attempts to invoke the authority that a court has no jurisdiction over his person, must do so at the very beginning of the case, and continue it until the end. In other words, "It must be at the very threshold of the defendant's appearance to the action. The reason is a plain one. If a party may at the same time invoke the jurisdiction of a court on the Columbiana County Appeals. merits of an action, and deny its jurisdiction over his person it would work great injustice." The court here, in distinguishing and passing upon the case in Allen v. Miller, 11 Ohio St. 374, 376, and also in Evans v. Iles, 7 Ohio St. 234, say: "He could under such practice, if the judgment on the merits is in his favor, avail himself of it as a bar to another action, but if it should be against him, he could set it aside for want of jurisdiction of his person. Hence it is said, that ‘if a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection.' In Allen v. Miller, supra, the court is careful to observe that Miller embraced the first occasion which offered, to-wit: in his answer to assert his objection to the jurisdiction of the court; and distinguished the case from that of Evans v. Iles, supra, where the defendant had previously filed a demurrer, and, although withdrawn had, as the court held, subjected the defendant to its jurisdiction. And, commenting on the withdrawal of the demurrer, the court said: 'It ceased to be of any consequence in the case, but as a fact, the evidence of which was indelibly fixed on the journal of the court, and constituting of itself an appearance in the case, it was as significant and as operative after the demurrer was withdrawn as it was before.' Therefore, in the case at bar, the defendants in question interposed an objection to the court's jurisdiction over their person. And after the motion was overruled, filed an answer, and in the first defense again challenged the jurisdiction of the court over their person; and we think that having pursued this from the beginning until the end the court was without jurisdiction over the person. We therefore find no error in the record, and the judgment of the court below is affirmed. Pollock and Metcalfe, JJ., concur. |