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Pierce v. Andrews.

in view, supplying a motive for his action, appeared to be to equalize his children in his estate, to see to it while he might, that all those who were dependent on his bounty were properly made participators in that bounty. This seemed especially true of the conveyance of November, 1891. At about the time that conveyance was made, he also made a will giving the sixty-six acres to his children and grandchildren who had not before that time received advancements. The conveyance of the sixty-six acres in February, 1893, was in a sense compelled by his surroundings, and seemed to be made necessary because of a judgment for a considerable sum, rendered against his son-in-law, and upon which he was surety. He was required to meet and discharge it, and the only property he had, available for its payment, was the sixty-six acres. He had capacity, so the evidence is, to intelligently discuss the entire sit:1ation and to suggest the remedy by a sale of that particular tract to Ella M. Pepple. He obtained a fair price, considering the encumbrance of a lease for his life time to his son, David E. Pepple. In fact, the entire transaction from beginning to end, impresses us as being most judicious and proper, and we have been unable to discover anything savoring CI imbecility, coercion or undue influence in it. The great weight of the evidence is, we think, to the effect that John Pepple, in the matter of conveying real estate to David E. and Ella M. Pepple, had both capacity and freedom to act. And we therefore find for the defendants.

Plaintiff's petition is dismissed, and he is required to pay al costs.
James A. Bope, J. Blackford & Byal, for Plaintiff.
Shaffer @Shaffer, Pendleton & Whitely, for Defendants.

RAILROADS-NEGLIGENCE.

[Putnam Circuit Court, 1896.]
ROBERT B. F. PIERCE, RECEIVER 1. CHARLES ANDREWS.

Price, Day and Rohn, JJ.
FAILURE OF RAILROAD TO MAINTAIN CATTLE GUARDS.

In an action against a railroad company for damages for stock killed, because of

alleged negligence in failing to construct necessary and proper cattle guards : Held, that such an onmission, was not of itself sufficient negligence as to warrant a verdict against the company, wher the evidence showed that it was necessary for the proper use of the station yards, as maintained on each side

of the station proper, to omit such cattle guards ROHN, J.

The defendant in the court below, commenced an action against the plaintiff in error as receiver of the Toledo, St. Louis & Kansas City Railroad Company, for the sum of $150, with interest, upon two causes of action. The causes of action are both for damages for stock killed on the railroad operated and controlled by the receiver, because of alleged negligence in failing to construct necessary and proper cattle guards to keep stock from getting in upon the right of way of the railroad from the public highway, and that by reason of this negligence on the part of the receiver and his predecessor, the railroad company, the stock of the defendant Andrews without fault or negligence on his part strayed upon the track of the railroad and was run over and killed.

Putnam Circuit Court.

The plaintiff receiver filed his answer to both causis of action, which very clearly sets out the defenses relied upon, r:hich are first, on each side of the right-of-way of the Toledo, St. Louis & Kansas City Railroad, north and south of the public road in plaintiff's petition described there is and was ai the time mentioned in said petition, a wire fence constructed as provided by the statute, north of said public road, except where said right of way is crossed by the right-of-way of the Findlay, Ft. Wayne & Western Railroad, the fence extends to a certain bridge which serves the purpose of a cattle guard and is sufficient to prevent stock from going on the right-of-way north of that point; south of said highway said fence extends to the cattle guard constructed according to law, which prevents stock from getting on the right of way south of that point.

Defendant admits that said heifer was killed in a collission with one of the trains of the defendant, but says that the place where said heifer came upon the right-of-way of said railroad is within the station limits of said railroad in the village of Cloverdale, and is part of the depot grounds. He further says the necessities and conveniences of the public and of the receiver and railroad company and the safety of the employes of said receiver require that said depot grounds and station limits at the crossing of said highway should remain open and unobstructed; and that said bridge north of said public road and the said cattle guard south of said public road has been put in and built by said railroad company at the first point north and south of said highway where the colistruction of cattle guards would not interfere with the necessities and convience of the public and of the railroad company and its receiver and endanger the safety of the employes of said receiver. To the second cause of action a similar answer was set out relating to the cattle guard, or want of cattle guard south of the railroad station.

Upon the amended petition of Andrews and the answer of the receiver the issues were joined and trial had before a jury, which returned a verdict in favor of the defendant in error, Andrews, for $120, upon which verdict the court below rendered a judgment; a bill of exceptions embodyiug all the testimony had on the trial in the court below was duly taken and allowed and a petition in error filed in this court by the receiver, seeking a reversal of the judgment of the court below on the grounds first, that the court erred in overruling the totion of plaintiff, in error for a new trial, second, the court errred in its charge to the jury on the trial of the action; third, the court erred in the admission of evidence on behalf of said defendant in error to which said plaintiff in error obected; fourth, said court erred in ruling out evidence offered by said defendant in error; fifth, said judgment was given for the defendant in error when it should have been given for the plaintiff in error.

Only two questions are presented by the petition in error on the record. The first is, was the verdict against the weight of the evidence ? Second, did the court err in its charge to the jury? All other errors assigned in relation to the admission or rejection of testimony are not considered by reason of failure to have the required marginal notes and references as required under the rules of this court. The only question raised on the sufficiency of the testimony as to its weight, is whether, under the exceptions which the supreme court has seen fit to read into the statutes the plaintiff, by a fair preponderance, showed that by the public necessities and convenience and proper use of its station yard, the railroad company was relieved from the requirement of the statute. The raliroad company claims it is necessary for the proper use of its yard, to

Pierce v. Andrews.

omit cattle guards at the highway known as the Truax road and the highway known as the Plank road, one north of and the other south of its station.

This was controverted by the plaintiff below; this was one issue to be submitted to the jury under proper instructions by the court, and we are of the opinion that the charge of the court below, in so far as it related to this branch of the case, gave full and proper instructions to the jury and in that respect there is no error, but, for some reason, we think tha: the jury failed to properly consider the testimony in reference to this particular part of the case in connection with the instructions from the court.

We are of the opinion that the testimony fully shows that the railroad company was not negligent within the meaning of the statute, requiring cattle guards at all crossings of highways as construed by the supreme court, this being true we are further of the opinion that the verdict was against the weight of the evidence, as the uncontradicted testimony of most of the witness produced show that for the proper use of the station yard, as maintained on each side of the station proper, it was necessary, to omit the cattle guards at each side of thehighways, crossing on the north and south of the station, to the point north to where the bridge acts as a cattle guard, and south to the next highway crossing. This being the case, we do not think such an omission was, of itself, sufficient negligence, as shown by the testimony, to warrant a verdict.

It follows then that there was error in the court below in overruling the motion of the receiver of the railroad company for a new trial.

Next in relation to the charge of the court to the jury where the three portions of the charge were excepted to by the receiver of the railroad company, and they are as follows: First, “I don't mean to say that if it happened to be a little more convenient to the company to omit the cattle guards that they could, for that reason, omit to have cattle guards at this point." Second, "because it might be convenient to stop trains at this point or somewhere along there and save two stops, would not, of necessity, be regarded as a necessary use of this particular locality for taking on and letting off passengers, if they had another convenient station ground at which they could stop just as well.” Third, "use your good common sense, that is, your own knowledge upon this subject. You are not absolutely bound by the testimony of witnesses."

We are of the opinion that the first two portions of the charge excepted to, taken in connection with the other portions of the charge, were properly given and there was no error in giving the same.

In relation to the other portions of the charge cxcepted to, we are of the opinion íhat the court erred in this, that it was misleading and would have a tendency in having the jury not only disregard the testimony to which it related, but also the other testimony in the case. To give this part of the charge was error.

This case will be reversed as being against the weight of the testimony, and for error in the charge ot the court to the jury as indicated in the third exception to the charge; cause reversed with costs, motion for new trial allowed, new trial granted, cause rumanded to court of common pleas for execution, and other proceedings according to law.

Charles A. Schmettan and Baite" cu L'aziey, Attorneys for Plaintiff in Error.

Handy @ Ogan, Attorneys to naendant n Error,

Cuyahoga Circuit Court.

ASSESSMENTS-LESSOR AND LESSEE.
(Cuyahoga Circuit Court, December 12, 1896.)

Caldwell, Hale and Marvin, JJ.

HARKNESS, ADMR., V. SCHIELY ET AL. PROPERTY OWNER ENTITLED TO RETURN OF ASSESSMENTS, WHEN

Where an uwner of certain premises abutting upon a certain street, leases the

same with the provision that the lessee, in addition to an annual rental, is to
pay all taxes and improvement assessments, and the street is afterwards
paved when a street railway secures a franchise in the said street, and in re-
turn it agrees to repay the assessments that were made for paving the same;
Held, that suci money belongs, and should be paid to the property owner
and not to the lessee of the property.
MARVIN, J.

This case comes here upon the petition in error from the judgment of the court of common pleas of this county. Suit was brought in the court of common pleas by Charles W. Harkness, as administrator, against these heirs of Schiely, and the facts here agreed to, are substantially these :

Michael Schiely was the owner of certain real estate in this city fronting on Wilson avenue. On the 19th day of November, 1873, he executed a lease of that property to Stephen V. Harkness; the term to begin on the first day of December, 1873, and continue for the period of twenty years. Harkness was to pay a certain annual rental; and in addition to that, the terms of the lease are that he shall pay to Schiely all the taxes and assessments for improvements that shall be levied upon the property during the continuance of the term granted by the lease. In 1888, on the first day of March, Hatkness died. The administrator, Charles W. Harkness, then took into his possession this lease-hold estate as a part of the personal estate of the deceased, Stephen V. Harkness. Some time before the lease expired—the time is not given in the agreed statement of facts—but before the assessments which are the subject of controversy here, Schiely died, intestate, leaving the defendants here, as I have already said, his heirs at law. On the 8th of September, 1892, the city of Cleveland levied an assessment of $5.25 per foot front for the improvement, grading and paving of Wilson Avenue and on the 10th day of September, 1893, the city levied a further assessment of $1.75 per foot front for the same purpose, upon this same property. Instead of paying these assessments to Schiely or to the owners of the property who succeeded to Schiely's estate by inheritance, by consent and agreement all around the assessments were paid directly to the city officers, so that they never passed through the hands of the Schielys.

The improvement was made upon the street, and on the 10th day of January, 1894, that being one month after the expiration of the term granted by the lease, while Harkness, the administrator, was still in possession of these premises, but clniming no right to such possession other than that certain buildings had been erected upon the land by Harkress, and that the terms of the contract between the lessor and lessee had not then been fully cemplied with as to the payment for such buildings, and when he was holding on only for the purpose of having an adjustmen in regard to that matter, the Cleveland City Railway Company, being dsirous of constructing a street railroad along Wilson avenue, sought tv

Harkness v. Schiely et al.

consent of the property owners fronting upon that street, because, under the statute, before a franchise could be granted to the street railway company to construct such railroad, they must obtain and have filed with the proper officers of the city the consents of one-half of the property owners, computed by the foot front. They applied to the heirs of Michael Schiely and obtained such consent from a number of those heirs, but not from all of them. Upon obtaining these consents, and for the purpose of obtaining them, the street railway company promised and agreed with the property owners that it would accept no franchise from the city to construct such railroad, which should not contain a provision that the railroad company would reimburse the taxpayers or the owners of the property who had paid for the improvement of the street such share of that money so paid as would pay for the pavement of so much of the street, along the line of it, as was bounded on the east by a line one foot east of the east rail of the street railway, and on the west by a line one foot west of the west rail of the street railway; this to be counted as the proportionate share that the railroad company would reimburse the abutting property owners for.

On the 19th of February, 1894, the city council passed an ordinance granring the franchise to the street railway company to construct that road. The language of the franchise, so far as it is applicable or necessary to call attention to here, is: “That the street railroad company will pay to the owners of property, and shall, within sixty days after the acceptance of this ordinance, pay to the property owners on such paved portion of said Wilson avenue their pro rata share of the amounts heretofore paid by them or their predecessors in title for such pavement as is embraced in a strip sixteen feet in width extending the entire length of the same, and shall pay to the city the cost of a strip of pavement sixteen feet in width of all street intersections."

The language differs somewhat from the agreement made with the property owners. The language of the agreement is that the street railway company will reimburse those who have paid; and the language of the ordinance is that the street railroad company will pay to the property owners on such paved portion of said Wilson avenue their pro rata share of the amounts heretofore paid by them or their predecessors in title. In the ordinance the strip to be paid for is spoken of as sixteen feet in width, while in the agreement it was to be bounded by the lines which I have mentioned, and which I suppose are practically the same. The franchise was accepted by the railroad company, and the amount to be paid upon this property, which was under lease to Harkness, is agreed to be five hundred and sixty dollars. That amount the railroad company have, by agreement of the parties, placed in the keeping of one of the banks of this city, and it is drawing interest, and is to be paid to such party as shall be ordered by the court; and the question here is, to whom it belongs—to whom it shall be paid.

The counsel who have presented the case have not found any authority directly in point as we can see, and as we understand counsel to say. We have been equally unable to find any case directly in point. We are cited to cases by counsel for the administrator of the Harkness estate, which clearly establish that where one pays for another, money which ought not to have been paid, and there is a reimbursement on that account, the party who paid is entitled to have the money paid back to him. One of the cases cited is that of Platts, administrator, etc., v. Lean, executor, etc., 3 Carr and Payne, 561. An attorney's clerk who, having

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