The L. S. & M. S. Ry. Co. v. The City of Elyria et al. As I have already said, it was not intended that this railroad should take any thing away from the public, beyond its absolute necessities, or their reasonable requirements. It would be more convenient and better for the railroad company, if it could have the exclusive use of any crossing, of any crossing upon any highway, it would lessen the danger, it would lessen the hazards of the company, it would make it safer for the public to travel; but at the same time it would greatly inconvenience the public who travel the high way. Therefore in all these cases convenience and necessity means that convenience and necessity which is reasonable without giving up, unnecessarily, any of the rights of the company, and at the same time having due regard to the convenience of the public. It is like any track, a railroad track in the city, a street railroad track, in one sense it is the exclusive right of way of the railroad company; but another sense, and in a larger sense it is still a use that is for the public generally, and the public must yield its rights only so far as it is necessary to give the railroad company a reasonable opportunity to run its cars, and that is true in regard to all these public highways. This being so we cannot see why the road may not be crossed by the rail road without excluding the public from the highway. Therefore, looking at it in this way, and we think this is the reasonable view of the matter, we do not think the railroad company ought to be permitted to stop the city from fixing that crossing if it wants to do it. While it is the duty of the railroad company to restore the crossing, we do not think the railroad company ought to have an injunction restraining the city from making the crossing. In regard to the second claim, if the railroad did not get the exclusive use in that crossing, if it did not become the absolute proprietor, and the one use is that of the railroad company, then the duty of the railroad company, when it put the tracks across the street, was to restore it to its former state of usefulness. When the railroad was first constructed its grade was of some four feet lower than the street, and the street being then, but little used, the company did not restore the street, but constructed a fence across the street. This fence was necessary to prevent persons in the night time from falling or driving into the cut made bythe railroad. The road was not restored for more than twenty-one years, after which the railroad raised its tracks to about the same grade as the street. During none of this time was the public entirely excluded from the crossing, only teams. Persons on foot crossed the tracks. The railroad had none of this time the exclusive possession, no further than before stated was the public excluded, and the street was, during that time, so little used that the public would not suspect that the railroad intended to make a claim of exclusive use from what it did. The use was in common, and the railroad never gave notice to the city, other than failing to restore the crossing and the fence, of its intention to exclude its co-user, or to forever deny the right of the public to the crossing. As a matter of fact, it never had exclusive possession of the crossing. Under the facts, if the possession had been exclusive, we do not think the railroad would be entitled to the relief it asks in this case. We dismiss the plaintiff's petition. E. G. Johnson, for Plaintiff in Error. W. W. Boynton and Stroup, for Defendant in Error. Hamilton Circuit Court, POLICE COURT-JURY. [Hamilton Circuit Court, March 27, 1897.] Cox, Smith and Swing, JJ. CARL FLETCHER V. THE STATE OF OHIO. 1. JURISDICTION OF THE Police Court. There is no constitutional objection to the conferring by the legislature upon the police court of a city, jurisdiction to hear and determine the question of the guilt or innocence of a person charged with the commission of an offense against the state outside of the limits of the city. 2. FAILURE OF A STATUTE WHICH AUTHORIZES A PENALTY BY FINE ONLY UPON CONVICTION, TO PROVIDE FOR A TRIAL BY JURY. A statute which authorizes a penalty by fine only upon a summary conviction under a police regulation, or of an immoral practice prohibited by law, although imprisonment as a means of enforcing the payment of the fine is authorized, is not in conflict with either sections 5 or 10 of article I, of the constitution, on the ground that no provision is made for trial by jury in such cases, and therefore is not a denial of constitutional rights. 3. PARTY ENTITLED TO TRIAL BY JURY-WHEN. It is only where the accused is charged before the police court or a magistrate with an offense, the punishment of which, in whole or in part, is imprisonment, that he is there entitled to a jury trial, unless the law confers the right upon him in other cases. HEARD ON ERROR. Case number 2120 and also cases numbered 2121-2-3-4-5-6-7. SMITH, J. The question presented in each of these eight cases is simply this. Whether on the trial of the cases in the police court of this city the ac cused persons were entitled to a trial by jury, each one having demanded a jury, which was refused by the court. The defendants in such cases were severally charged with a violation of section 6933, Revised Statutes, which reads as follows: "Whoever suffers any game whatsoever to be played for gain, upon or by means of any gaming device or machine, of any denomination or name, in his house, or in any outhouse, booth, arbor or erection of which he has the care or possession, shall be fined not more than two hundred nor less than fifty dollars." Section 1788, Revised Statutes, provides as to the police court in cities of the first-class, that "the court shall have jurisdiction of any offense under any ordinance of the city, and of any misdemeanor committed within the limits of the city, or within four miles thereof, to hear and finally determine the same, and impose the presented penalty; but cases in which the accused is entitled to a trial by jury shall be so tried, unless a jury be waived." We are of the opinion that there is no constitutional objection to the conferring by the legislature upon the police court of a city, jurisdiction to hear and determine the question of the guilt or innocence of a person charged with the commission of an offense against the state, outside of the limits of the city, but the principal claim of the plaintiff in error is, that if by section 1788, the police court is authorized to hear and determine the guilt of a person charged with a misdemeanor, with Carl Fletcher v. The State of Ohio. out the intervention of a jury, if demanded, and which is denied, that such statute is in so far unconstitutional and void, as denying to the accused person a constitutional right. Under the provisions of this section 1788, we think it clear that if the section is a valid one, the police court of Cincinnati has the power to hear and finally determine a charge brought against a defendant charging him with a misdemeanor committed within the city or within four miles thereof, without the intervention of a jury, when in the language of the statute, "the accused is not entitled to a jury." And so far as we can see there is no provision by any statute that in a case where the penalty affixed to the offense is only a fine, that the accused is in that court entitled to a trial by a jury, and it then becomes a question whether under the provisions of our state constitution, he is of right entitled to such a trial in such a case-for if he is, the statute, which, as we have held gives the police court the right to try him without a jury, would in this particular be invalid. But if he has no such right under the provisions of the constitution, he can be tried by the court alone, even if he demands a jury. The provisions of our state constitution as to the right of trial by jury are these: Article I., section 5, "The right of trial by jury shall be inviolate." By article I., section 10, it is provided that in any trial in any court the party accused is entitled to "a speedy public trial by an impartial jury." Each of these has been the subject of repeated adjudications by our supreme court, but in view of its recent decision in the case of Inwood v. The State, 42 O. S., 186, it is not necessary that we should refer to them at length. In the case just cited many of them are mentioned and it was there held that “a statute which authorizes a penalty by fine only upon a summary conviction under a police regulation, or of an immoral practice prohibited by law, although imprisonment as a means of enforcing the payment of the fine is authorized, is not in conflict with either sections 5 or 10 of article I. of the constitution, on the ground that no provision is made for a trial by jury in such cases." We think that this decision settles the question in controversy here. The legislature has by section 6933, Revised Statutes, prohibited by law, as immoral and against public policy, the offense with which these defendants below were severally accused, and made it punishable by a fine only. By section 7327, Revised Statutes, "when a fine is the whole or part of the sentence, the court or magistrate may order that the person sentenced shall remain confined in the county jail until the fine and costs are paid, or secured to be paid, or the offender is otherwise legally discharged. In these two respects these cases and that of Inwood are identical. In that case as in these the accused demanded a jury trial, which was refused, and a trial had by the court alone. As we understand the decision it is only where the accused is charged with an offense, the punishment of which in whole or in part is imprisonment, that the accused is entitled to a jury trial, unless the law confers the right upon him in other cases. As this was not done as to this offense by any statute, the judgments will be affirmed. Shay & Cogan, for the Plaintiffs in Error. Hamilton Circuit Court. MASTER AND SERVANT. [Hamilton Circuit Court, January, 1897.] Swing, Cox and Smith, JJ. JOHN A. LLOYD V. THE NELSON BUSINESS COLLEGE. LIABILITY OF a Master for THE MALICIOUS ACT OF HIS SERVANT. The fact that the act of a servant resulting in an injury may have been malicious, and one for which he is liable to criminal prosecution, does not prevent the master from being liable for damages for such act. HEARD ON ERROR to the Common Pleas Court. The plaintiff in error while standing upon a step-ladder repairing the chandeliers in the defendant's schoolroom was violently thrown to the floor and injured by the pushing of the ladder from under him by the janitor cleaning the room. The present suit is for damages on account of the wrongful act of the janitor. At the trial below an instructed verdict was returned for the defendant on the ground that the act of the janitor was malicious, and not within the scope of his employment. SMITH, J. We are of the opinion that the court of common pleas erred in instructing the jury at the close of the evidence offered by the plaintiff below to return a verdict for the defendant. The evidence so offered tended strongly to show that the injury to the plaintiff resulted from the wrongful conduct of the agent of the defendant company "when acting within the scope of his employment and in the execution of the service for which he was engaged by the master," and the case should have been submitted to the jury. The fact that the servant may have acted maliciously, and thus made himself liable to a criminal prosecution, does not prevent the master from being liable for damages for such act. The verdict was against the evidence, and a new trial should have been granted. The judgment will therefore be reversed with costs, and a new trial awarded. Wm. E. Bundy and Wm. E. Eames, for Plaintiff in Error W. C. Cochran, Contra. Miller aud Tafel, Trustees, v. Ryan and Ryan. APPEALS. [Hamilton Circuit Court, February, 1897.] Cox, Smith and Swing, JJ. MILLER and Tafel, TrustEES, V. RYAN AND RYAN. AN APPEAL BOND IS VACATED, WHEN. An appeal bond from the probate court to "the appellate court" is vacated when the judgment which follows in the common pleas is reversed and a different judgment rendered by the circuit court. HEARD ON ERROR to the Common Pleas Court. This was in action for recovery of $7,500 from the defendants on an appeal bond executed by John B. Mannix, assignee of J. B. and Edward Purcell. The appeal was from the judgment of the probate court, which was June 2, 1886, rendered against Mannix for $305,827.70. The obligation of the bond was that "the said John B. Mannix shall abide the order, judgment or decree of the appellate court," etc. The appeal was to the common pleas where the judgment was reduced to $285,227.58. The case was then taken on error to the circuit court where the judgment of the court of common pleas was reversed and judgment rendered against Mannix for $189,975.83, which the supreme court affirmed. Then came the present suit on the appeal bond. The hearing below was before Judge Kumler, who sustained a demurrer to the answer. SWING, J. We are of the opinion that this case comes within the rule laid down in the case of Meyers et al. v. Parker, 6 O. S., 501. The liability of the sureties on the bond in this case was to abide the judgment of the appellate court, to wit, the court of common pleas. There is no judgment of the court of common pleas, hence they are not liable. The judgment of the court of common pleas was reversed by the circuit court, and by consent of the parties to the action-not the sureties-that court rendered another and a different judgment. The sureties did not agree to be liable for the separate and distinct judgment of the circuit court, but they did agree to be liable for the satisfaction of the judgment of the court of common pleas. When the judgment of the court of common pleas was reversed and held for naught, their obligation on that judgment ceased. The judgment of the court of common pleas is therefore affirmed. S. A. Miller and Gustav Tafel for the Plaintiffs in Error. Harmon, Colston, Goldsmith & Hoadly and Thos. McDougall for the Sureties. |