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Gawa v. The State of Ohio.

In view of this possible dispute and uncertainty as to the facts, and especially in consideration of the full knowledge thereof possessed by the trial court, the overruling of the motion for a new trial on this ground is held not to be manifestly erroneous by the majority of the court.

7. It is also contended that the verdict is not supported by sufficient evidence. This assignment of error has commanded the serious attention of counsel and the court. It has been fully and ably argued, and we have given much time to its consideration. While the record is voluminous, there are, after all, only a few decisive facts relied upon by either party.

The larger part of this large record is devoted to evidence of declarations and conduct of the accused, covering a wide range of transactions, both before and after the building was burned, the main bearing of which was to show that the defendant would be benefited by its destruction, and, therefore, had a motive for destroying it.

He was an architect and had, theretofore, furnished plans and estimates for school houses in this township. The profit to him iu each case, as estimated, was about fifty dollars.

School house No. 6 was antiquated and not up to the requirements of the times. It was a matter of frequent remark in this sub-district that its destruction would be a public blessing, and such remarks had been made in the hearing of the defendant.

After its destruction the defendant immediately applied for the job of furnishing plans and estimates for a new building. He persistently pursued the different members of the board of education and urged the immediate erection of a new school house, and furnished arguments and statements, verbal and written, showing the economy of speedy action.

Afterwards, while a room im.a private dwelling was being used for a school room, he officiously undertook to show its inappropriateness for this purpose and brougnt the matter to the attention of the State Board of Health.

All this was done, apparently, for the purpose of compelling the board of education to build a new school house at once. His officiousness was encouraged by certain parties who suspected him of burning the old school house. When he learned that he was suspected of this crime he directed all his energies to the removal of such suspicion. He employed an alleged detective to ferret out the authors of his disgrace, while he undertook to remove such suspicion by arguments, explanations and denunciations.

The history of all these conversations and transactions is brought into this record to show motive.

The proper part that evidence of motive may be made to play, in a criminal trial, is to remove the uncertainty arising from the want of such evidence. Its importance for this purpose is unquestioned, especially when, as in this case, the state must rely upon circumstantial evidence alone; but it cannot be used as affirmative proof that this building was set on fire by the defendant.

Because of the assumption, that all responsible human action is voluntary, and is caused and guided by self-interest, the questioa of motive necessarily forces itself upon the mind in the investigation of every alleged criminal act.

It is only, however, when such act is established by other evidence that the question of motive can be appealed to, to give corroboration and assurance to the conclusions drawn from other evidential facts.

Lorain Circuit Court.

We must then turn our attention to the consideration of the material evidentiary facts of the case.

It is fully established that on the 6th day of October the defendant was familiar with the school house and knew, or might have known, that there was no fastening on the southwest window; that this window was opened and the fire set in that part of the building; that numerous tracks of a three-quarter buggy, drawn by a horse having a small foot and wearing plate shoes, were found on the following morning in the road near the school house, indicating that the horse had been turned partially out of the travelled part of the road opposite this window; that these tracks were similar to those made by the defendant's buggy, and that his horse had small feet and wore plate shoes at the time.

Evidence was given tending to show that the defendant was seen and identified aear the school house at about the hour of nine o'clock on this evening, driving to the south at a rapid pace, and that a light was discovered in the school house at about this time, or soon thereafter.

As to the transaction on the evening of October 2Cth, it is proved that the school-house was discovered to be on fire at twenty ininutas past ten o'clock, sun time; that the tracks of a horse and buggy, simiar to those found on the morning or the 7th, were discoverea in the road coming towards the school-house from the south, and then going west. Evidence was given tending to show that the horse and buggy of the defendant were absent from the livery stable, where they were kept, during all of this evening, and that the defendant did not return with them until ten o'clock or after.

On the part of the defendant it is shown that up to the time of the making of this charge he had sustained a good reputation for honesty and integrity; that upon the night of October 10th, he was transacting business with various parties, at his office in the city o E, until the hour of 9:30, sun time; evidence was also given, that ihi chool house was located west of the city of Elyria and three miles froin is office.

Evidence was also given on his part, tending to show that lie was at home, in the city of Elyria, all of the evening of October 6th, and that he remained in his office on the evening of October 10th, 'till ten o' clock, sun time.

This, it brief, is the whole case. The force of soine of these circumstances is weakened, if not wholly destroyed, by other undisputed facts

The tracks of a three-quarter buggy was a circnmstance of little, if any's probative force against the acc:red; as many vehicles of that kind were shown to have been in use at that time in that vicinity. It is also a conceded fact that the defendant passed this schoo. house with his horse and buggy late on that afternoon of October 6th.

There was a like infirmity of inconclusiveness as to the tracks of the horse There was nothing uncommon about the shoes of the horse, in size or otherwise.

These circumstances lack the essential elements required to make them incriminative. They are perhaps consistent with guilt but are in no wise incompatible with innocence.

If the defendant visited this neighborhood at about the time the fire was set on the evening of the 6th, nis presence there, in connection with his testimony that he was then in Elyria, would raise a strong presumption of guilt.

The witness, Ann Reícring, says that she heard t.e sound of a rapidly approaching carriage, while she was or her way to her home fron; a

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Gawn v. The State of Jaio.

neighbor's, at abo i nine o'clock of that evening, and stepped aside 'till the carriage passed; that the top of the carriage was down and that the speed of the horse was somewhat slackened as it passed; that she recognized the defendart and the rig; and also observed that he had on a dark suit of clothes and a dark stiff hat.

The jury must have given full credence to this story, as it is the only testimony which could have convinced them that the defendant was guilty of this charge.

We think her testimony was not entitled to full credit. It was a dark night, so dark that she did not see the carriage 'till it was close upon her, and learned it from the noise of its approach. Her daughter, who was with her at tne time, says that she could not tell who was in the carriage because it was so dark.

That any one couid tel tne color of clothes under such circumstances is impossible. At besi, it couid only have been the opinion or con

Ai jecture of the witness, Ann Refaring, that she saw the defendant on that nigu“; and when she first began to entertain that opinion is left in uncertailiyi; "he record.

The naterial circumstance to sustain the charge made on the 10th of October is the alleged fact that the defendant's horse and buggy were taken out of the livery barn early in the evening and not returned by the defendant 'till ten o'clock or somewhat later. This claim is supported by the testimony of two witnesses. The witness, Bivens, the owner of the stable, says he was about there until about nine o'clock, au:1 that the horse had not been brought in at that time. Upon crossexamination he admits that there was nothing to call his attention especiaily to this matter at the time, and we are satisfied that it was, with him, only a matter of the most shadowy impression. Indeed, the record discioses the fact, that some days after the 10th, he inquired of Worden, the man in charge of the stable, whether “Gawn s horse was out late that

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The witness, Worden, was working at this stable; and he says that it was ten o'clock or later before the horse was brought in. He also says that there was nothing about his circumstance to attract his attention at the time, and that he only fixed the date by aguring back, sometime afterwards. He was unable to fix other times when his horse, or other horses, were out áuring an evening, as it was a matter of common occurrence and of no consequence.

The time when the fire was discovered, on the 10th, by the witness, Osman, is fixed with as much certainty as any other fact in the case, as being at 10:20 P. M., sun time. He iesiifies that he then went to the school house, some quarter of a mile away, and found a small fire in the front part of the builoing. That there was nothing to indicate how long it had been in progress, and that it was burning very slowly at that tine.

It may b. possible that the defendant could have left his office at 9:30 sun iine and save iraveled by some indirect route so as to have anproached this building from the south, have set this fire, and then have gone to the wesi, aza y i have reiurned to the 'ivery stable at ten o'cloci. or soon thereafter; but in ihe light afforded by ikis record it is extremely imp.ocable.

Wo are fully convinced that the verdict was not warranted by the evidence.

di assignments of error not commented upon are overruled. The

Ilamilioncuit Court

judgment in this case is reversed and the cause remanded for further proceedings.

E. G. Johnson, Judge Blandin and H. G. Reddington, for Plaintiff in Error.

F. F. Thomas, Prosecuting Attorney, and A. R. Webber, for Defendant in Error.

STREET RAILROADS--NEGLIGENCE.
(Hamilton Circuit Court, December 11, 1896.]

Sinith, Swing and Cox, JJ.
DERRICK T. VAIL v. The CINCINNATI INCLINED PLANE Ry. Co.
PROXIMATE CAUSE OF INJURY TO PASSENGER RIDING UPON THE PLATFORM.

Where a passenger, riding ucor the platform of a street car, suffers an injury

caused by the derailment of the car: Held, that the fact of his riding upon the platform was r.ot the proximate cause of his injury, where the evidence clearly showed that the a load comóany was negligent in the managerint of its car, a. and benc the time of suci durailment; but that the proxiincte cause of the injury wus caused by the negligence of those in charge of the car

ERROR. SMITH, J.

Two of the judges who heard this case are of the opinion that the verdict of the jury was inanifestly against the weight of the evidence, and that for this reason a new trial should have been granted. The evidence in our judgmunt clearly showed negligence on the part of the defendant company, ir the van gement of the car, at and before the time of the derailment thercoi by reason of wnich ncgligence the car ran off of the track ant rar across the strect against the curbstone, thereby ausing the injury to the plaintiff. There was an utter disregard by those in charge of the car of several of the clear and explicit rules of the company, and the disregard of which in all probability produced and brought about the result complained of.

In the second place the testimony does not show that the plaintiff by his neg‘igenre contributed to his own injury. It is true that at the time he was hurr, he was standing upon the rear platform of the car. But this was with thu full knowledge of the conductor who made no objection thereto, anc the fact that he was occupying that position, under the circumstances disclosed even if it b= c iceded that he was negligent in doing so, was not the proximate cause of the injury received by him. The proximare cause oi the der 1:nent of car and the consequent injury to the pa rtiff * the negligenc: fose in charge of ins car before spokty of His ei o where was m=rely a condition, and in 110 sense a cause of the ceralment er of he injury. Being there, he would of course assume the risk of such injury as might naturally or reasonably be expected to happeu to him, while the car was being run upon the track -as of being jolteu from the step or the platform, or of injiry by collis. sion with teanis, "ehicies or other obstructions upon the highways; but not of those produced as in this case.

Strec vlway Co. v. Bondron, 2 1m. & Eng. R. R. Cases 3); Railway Co....hwartz, 8 C.C. Rep. 82

Raaisey, Maxwell @ Remisty, as torneys for Plaintiff in Error.
Miller Outcclt, Attorney io: P. R. Co.

Toledo v. Higgins.

EVIDENCE-CHARGE TO JURY-DAMAGES.

(Lucas Circuit Court, January Term, 1895.)

Haynes, Scribne-, ani. King, JJ.

TOLEDO V. HIGGINS. !. EVIDENCE TO SEcw KroWLEDCE OF "HE CITY or DeFECTS IN ITS SIDEWALKS.

Ir an action for damages for injuries receivel by reason of a derecci e sige

walls, ic is noi error to acw witresses co testify that they were ale noli: of passing along the see, and that the sidewalk, in the immedisia viciniy of the place there the injury cccürreá, had been taken up and rad., and tha the peaks were unequal and that there were some hcies in the sidewal.; such eviaer.ce beirg received for the purpose of showing knowledge on t'ie

part of tte city cf the defects in the sidewalk. 2. Charge AS TO THE LUT.: OF A City Towards NEGLIGENT PERSONS.

In an action for injuries caused by the neg'igence of a city, it is not error fr

the ccurt to refuse to caldzju the jury tu ise effect that the city owes no dut; to persons why, thouge.tless.y, ... w 'hout the use of proper precaution for their own safety, expuw's themselves to manifest perils, or who by the use

of ordinary and reason ille care, mighi avoid injury to themselves. 3. EXCESSIVE DAMAGES.

Where plaintiik has received injury, and as the result of such injury, plain.

tiff's arm is derinanendly weakened s) ihat it will not be able to lo fuil wor's again, a veräici rci $1200, rendered by the jury, will not be con.idered ex.

cessive so as to w.ancu reversal of such judgment. HAYNES, J.

This case of the City of Toledo, v. Clara Higgins was prosecuted for the purpose of reversing the judgment of the court of co mcu pleas.

There are three principal points made, and one is that the verdict is not sustained by suffcient evidence and is contrary to law; another is that the court refused to charge the jury certain requests that were requested; and the third is that the judgment is excessive.

The reccrd shove that a petitiol was filed simply to recover from the defendar' below damages for an inju-y that occurs to the plaintiff below, Clara Yiog'ns, by reason of a defective place in the sidewalk on Wisconsiz street, into which Clar. hac stepped or stumbled in the dar' on a dark right, whereby she had ceen inzowa to the ground ud her arm broken and she iad receized sevire injuries.

The testimony snows, we niak, very clearly, that the injury. hap pened in the manner in which the paint stated in her testimony, which corrcbcrated ihe statemeats of her petition.

Criticism was made as to the tesiin ony, but we see no reason to doubt that there was a piace in the sidewalk into which her feet either slipped or ipon which she stumbled in passing over it, and that she was throvi and injured. She was seen to fall by two disinterested witnesses and was picked up by them lying in the condition which she has stated.

She testifies that she fell and that she went home, and the neri day visited a physician, and thereupon he told her that her arm was broken and set it. It appears by the testimony that the doctor some time and iischarged her, thinking that her arm was well; but that the arri certmercea swelling about that time and continued to do so until final, some of 11 bones worked out, and she consulted another physician near

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