Railway, L. & P. Co. v. Barr.

The petition in error filed herein sets forth as one of the grounds of error assigned that the court below refused "to give the several charges asked for by the defendant in error." We have examined said petition in error with reference to this alleged assignment of error and find no such requests made.

It is urged that the verdict and judgment are against the weight of the evidence and contrary to law, and that the damages are so excessive as to appear to have been given under passion or prejudice. As before stated, we have read the entire bill of exceptions and have carefully considered such parts of it as relate to the more important features of this case, and in the light of the direction given to the defendant in error to do this repair work, the circumstances under which it was done, or undertaken to be done, the history of the facts known to or presumed to have been known by the company immediately preceding and at the time of the collision of the cars resulting in injury to the defendant in error, with the case fairly presented to the jury, under proper instructions, as a reviewing court we do not feel justified in disturbing the verdict of the jury upon the ground that the same is not sustained by the evidence, or that the same was clearly against the weight of the evidence and contrary to law.

As to the damages being excessive as if given under the influence of passion and prejudice, in the absence of a showing made that the jury were so influenced, the presumption would be otherwise. True the verdict given was for a substantial sum, but it was the province of the jury to fix upon the compensation to be awarded the defendant in error, if any, under the facts in the case as shown by the evidence.

In Fisher v. Patterson, 14 Ohio 418, 427, which was a suit for libel, Judge Read announcing the opinion of the court said:

"In cases where the damages are to be determined by the sound discretion of the jury, in view of all the evidence the court will not interfere to grant a new trial on the ground of excess, unless the damages are so outrageously gross as to convince the court that the jury must have acted from corruption. or bias, or mistake, or some other improper influence, instead of a sound and enlightened judgment."

Richland County Appeals.

In Lake Shore & M. S. Ry. v. Schultz, 9 Circ. Dec. 816 (9 R. 639), which was a personal injury case, Judge Parker announcing the opinion of the court, quoting with approval Judge Hammond in Smith v. Railway, 12 O. F. D. 188 (90 Fed. Rep. 783), said:

"A verdict should not be set aside simply because it is excessive in the mind of the court, but only, when the excess is shocking to a sound judgment and a sense of fairness to the defendant. When there is any margin for a reasonable difference of opinion in the matter, the view of the court should yield to the verdict of the jury rather than the contrary."

In Walker v. Railway, 63 Barh. 267 (N. Y.) which was a personal injury case, the trial judge said:

"The defendant's counsel, however, contends that the recovery in the action was excessive. In this class of cases no precise rule exists, by which the extent of the recovery con be prescribed; for the compensation to be received is, to a great extent, to be awarded for pain and suffering which can not be accurately measured by amounts. The law has, accordingly, in this class of cases, committed the determination of the amount of damages to be awarded to the experience and good sense of jurors. And where the verdict rendered by them, may reasonably be presumed to have resulted from an honest and intelligent exercise of judgment upon their part, the policy of the courts is and necessarily must be, not to interfere with their conclusion."

In the case before us the evidence showed the defendant in error to be 37 years of age, in good health and receiving fair wages when injured. Upon the whole case we can not say that the compensation awarded by the jury is unreasonable or excessive and we therefore do not feel justified in disturbing said verdict. We are therefore of the opinion that the court of common pleas did not err in overruling the motion for a new trial. and the judgment of said court will therefore be affirmed with costs, but without penaity. Exception may be noted.

Swanson v. Commissioners.

BRIDGES-COUNTIES-PLEADINGS.

[Tuscarawas (5th) Court of Appeals, June 11, 1915.]

Shields, Powell and Houck, JJ.

S. A. SWANSON ET AL. V. TUSCARAWAS Co. (COMR.) ET AL. 1. Approval in Writing by Prosecutor of Form and Correctness of Contract for Building County Bridge Sufficient Compliance with Emergency Statute.

In an action involving the contract for the building of a county bridge under the emergency statute, an allegation that the prosecuting attorney approved in writing the form and correctness of the contract as entered into by the county commissioners, is a sufficient compliance with the requirement of Sec. 2356 G. C., having reference to contracts exceeding $1,000.

2. Statutory Provisions for Notice of Improvement not Applicable in Case of Casualty Requiring Prompt Action.

The provisions for notice of an intended purchase or improvement, found in Sec. 2444 G. C., do not apply to the construction of a new bridge in case of a casualty requiring prompt action.

3. Motion, not. Demurrer, Lies to Petition Involving Replacing of County Bridge, Indefinite as Location of Site of Bridge. A petition drawn under favor of Sec. 5638 G. C., involving the replacing of a county bridge at a cost exceeding $18,000 without a vote of the electors, is not open to demurrer for indefiniteness of statement as to whether the new bridge is to occupy the site of the old one. An objection of that character can

Lynch & Day, D. A. Hollingsworth and J. F. Greene, for plaintiffs in error.

W. V. Wright and E. E. Lindsay, for defendants in error.

HOUCK, J.

The court below sustained a general demurrer to the petition of plaintiffs in error, the plaintiffs below, and judgment was rendered against plaintiffs in error for the costs, and error is now prosecuted to this court to reverse the judgment of the common pleas court in sustaining said demurrer.

The right is claimed, by plaintiffs to maintain their action

Tuscarawas County Appeals.

and their petition is drawn under favor of Sec. 5638 G. C., et seq., which provides for the construction of a bridge in a case of casualty, at a cost exceeding $18,000, without a vote of the electors, when "an important bridge belonging to or maintained by any county becomes dangerous to public travel, by decay or otherwise and is condemned for public travel by the commissioners of said county and the repairs thereof, or the building of a new bridge in place thereof, is deemed by them necessary for the public accommodation, the commissioners, without first submitting the question to the voters of the county."

Counsel for defendants, rely upon three grounds in support of the demurrer, to-wit:

1. That the contract, between plaintiffs and defendants was not approved by the prosecuting attorney, as required by law.

2. Failure to publish notice of intention to erect bridge. 3. That the averment in the petition "that the contract provided for the construction of a new bridge to be built at or not far distant from the point where the old bridge stood" is not sufficient, and does not comply with the sections of the General Code hereinbefore referred to.

We have given each and all of the grounds of the demurrer careful consideration, and as to the first, we are of the opinion that the allegation in the petition "that the prosecuting attor ney of the county also in writing approved the form and correctness of the contract" is a compliance with the requirements of Sec. 2356 G. C., which provides:

"Before work is done or material furnished, all contracts that exceed one thousand dollars in amount shall be submitted by the commissioners to the prosecuting attorney of the county. If found by him to be in accordance with the provisions of this chapter, and his certificate to that effect is indorsed thereon, such contracts shall have full force and effect, otherwise they shall be null and void."

The second ground of the demurrer attacks the validity of the petition, for the reason, that Sec. 2444 G. C. was not complied with. This section of the code provides:

Swanson v. Commissioners.

"Before the county commissioners purchase lands, or erect a building or bridge, the expense of which exceeds one thousand dollars, they shall publish and circulate handbills, and publish in one or more newspapers of the county, notice of their intention to make such purchase, erect such building or bridge, and the location thereof, for at least four consecutive weeks prior to the time that such purchase, building, or location is made. They shall hear all petitions for, and remonstrances against, such proposed purchase, location, or improvement."

Statutes are construed according to their intent and meaning. The petition, in this case, was drawn under favor of Sec. 5638 G. C., et seq., which provides for the construction of new bridges in case of casualty. It is a special statute and to be used on special occasions and was enacted by the legislature to cover particular cases as they might occur and which needed prompt action on the part of the county commissioners, and for which other statutes did not provide.

Giving to Sec. 5638, et seq., that fair and liberal interpretation that the legislature certainly intended they should have and for the purposes for which they were enacted, we are unable to see where Sec. 2444 G. C. has any application to the case at bar, and therefore are of the opinion that this branch. of the demurrer is not well taken.

Coming now to the third branch of the demurrer, which is the real problem to be solved, will say that it is a question of importance and has caused us much study of the numerous authorities cited by counsel, as well as an exhaustive research on the part of the court of other authorities.

Counsel for the demurrer, in their brief, contend that the commissioners have no right to contract for a bridge to be constructed at a point "not far from the old bridge," but they do not say anything concerning the word "at" which precedes the above language and is followed by the word "or." The language in the petition is "at or not far from the point where the old bridge stood."

Would it not be just as reasonable to say that the bridge was to be built at the place where the old bridge stood? How