Lucas Circuit Court.

her and he examined the wound, as he testifies, and discovered that there had been a sloughing off of the bone at the mouth or opening of the wound, and he took out the affected bones and took such steps for the recovery of the patient as surgery would seem to require, and the result was that she recovered in time, but with an arm that is smaller and is defective; it is not straight, so that she is permanently, or apparently permanently, injured, and the body is permanently weakened for labor and heavy labor especially.

The plaintiff, for the purpose of showing knowledge on the part of the city of this defect in the sidewalk, offered testimony tending to show by witnesses that they had been in the habit of passing along the street and that the sidewalk in the immediate vicinity of this place had been taken up and relaid and that the planks were unequal and there were some holes in th sidewalk.

This was objected to, the defendant, the city of Toledo, claiming that the testimony should be confined to the statement in regard to the length of tim that the hole had existed into which the plaintiff stepped, and that they could not go any further, The court, however, overruled the objection and allowed the testimony t be given of the character which I have stated. In doing so, we think the court did not err in not confining the testimony to the defects in the sidewalk of the character of this by which the injury occurred to the plaintiff.

We have examined this question before in a case where the city of Toledo was a party and we sustained the action of the court below in that case. We think the great body of authorities cited by the counsel for the defendant ta error sustains the position which was taken by the court, and we therefore hold that the facts of the case and the character of the testimony which was offered in this case, that there was no error in permitting the testimony to be given.

It is claimed that the court erred in refusing the third request and the tenth request as prayed by the plaintiff. Primarily, to that, however. it was stated, or rather it was argued that the court erred in not giving these charges prior to the argument of the case to the jury; but the record shows that the defendant below submitted certain requests to the court and asked the court to pass upon them before the case was presented to the jury, with the request that they be included and given as a part of the charge on the court to the jury.

Now, there was no request that the court should charge the jury on these propositions before argument; but only hat he pass upon them, which he did do, and the request that he should charge them afterwards as a part of his charge he did also, and he did that in regard to all of them except the 3d and 10th to waich exceptions were taken.

The 3d request is this:

"The city owes no duty to negligent persons,—that is, to persons who thoughtless y, or who, without using proper precaution for their own. safety, expose themselves to manifest perils, or who by the use of ordinary and reasonable care, might avoid injury to themselves."

The 10th, request reads as follows:

"The city owes no duty to persons that thoughtlessly, or who, without the use of proper precaution for their own safety, expose themselves to manifest perils, or who, by the use of ordinary and reasonable care, might avoid injury to themselves "

The court did charge the jury in regard to the question of contribu tory negligence, and he charged the jury correctly. He stated to the jury

Toledo v. Higgins.

the liability of the defendant and the plaintiff in that regard very correctly.

We think the court did not err in refusing to charge the jury in the language as prayed in this 3d and 10th request. We do not think the law is better tated than in the language which the court did use in stating the rules of law in that regard, which is laid down by the courts of the state.

The damages that were given were, I believe, $1200. This person has suffered a great deal with a broken arm and suffered a great deal from the result of the injury, because so far as the testimony goes,—so far as the judgment of the witnessess is concerned, the conclusion is drawn that the death of this bone, the sloughing off of this pus and of the bones was the result of the njury. Of course, no man can say absolutely that it is; but it is the best judgment of those who are qualified by their knowledge of surgery, that it did happen from the injury.

As a result of that, the arm is permanently weakened, and in view of all the facts,—in view of the fact that the party may not be able to do full work hereafter, we think the damages are not excessive, and the judgment of the court will be affirmed, but without any penalty. C. F. Watts, City Solicitor, for Plaintiff in Error.

BILL OF EXCEPTIONS.

[Hamilton Circuit Court, December 12, 1896.]
Smith, Swing and Cox, JJ.

*WILLIAM BORSODI, V. THE STATE OF OHIO and WILLIAM BORSODI V. THE STATE OF OHIO.

FAILURE OF JUSTICE TO TRANSMIT Bill of ExcEPTIONS.

The failure of a justice of the peace to transmit a bill of exceptions to the clerk of the common pleas court within ten days from its allowance, is not ground for striking such bill of exceptions from the files.

ERROR.

SMITH, J.

In the first of these two cases it is claimed that the court of common pleas erred in striking the bill of exceptions taken by the plaintiff in error from the files. The case was this: Borsodi, the plaintiff in error, was charged before a justice of the peace in this city on an afùdavit which set out that on the 2d day of July, 1894, he had sold one pint of an article of food which was adulterated in the following respects: It was sold under the name of lemonade, and was not lemonade. A ! was had in the case, and at the close of the testimony on the part of the state, the defendant asked for his discharge on the ground that the state had not made out a case. The motion was overruled, and exception taken. The lefendant then offered his testimony, and when the evidence had been fully heard, the case was submitted to the ury, winch returned a verdict finding him guilty as charged. A nc.ior for a new trial was filed and overruled, and the defendant als made a motion to arrest the judgment, which wa also overruled, and ine dienaan. sentenced, to all of which he excapted, and the justice under the provisions of the act of April 27, 1893 (CC Ɔ L., 058) fixed the time for the presentation and signing of a bill or ex epucus, ten days from the date of the overruling of the motion for a newal, and it was duly and legally signed in proper time, viz. on August 24, 1604.

The decision in this case is approved and its application extended by the same court in Ransick v. State, 8 Circ. Dec., 308.

Hamilton Circuit Court.

On the 5th of October, 1894, the plaintiff in error filed in the court of common pleas his petition in error to reverse such judgment, and with it the transcript from the docket of the justice, the bill of exceptions and the original papers in the case. On the 20th of November, 1894, the defendant in error filed a motion to strike the bill of exceptions from the files on the ground that the justice of the peace had not transmitted. it to the clerk of said court within ten days from the date of its allowance by him, which was the fact. The court sustained the motion and ordered it to be stricken from the files, to which action the proper exception was taken. Afterwards the judgment of the justice was affirmed by the court, and this petition in error is filed to reverse such judgment.

Was the action of the court on striking from the files this bill of exceptions right? We think that it was not. It is true that the same section, to which we have already referred, section 6565, R. S. (90, O. L., 358), provides that the justice shall file the bill of exceptions when allowed, "with the papers in the case, and note such signing and filing in his docket, and transmit the same with the transcript of his docket and original papers within ten days from the date of signing to the clerk of the court of common pleas, and by him filed and entered on his trial docket as in other cases.” But this is a duty imposed upon the justice by the law, and if he fails to do this (unless he has demanded his fees therefor and they are not paid), the person taking the bill is not to be prejudiced thereby, but may within the six months allowed for filing the petition in error, do so and with it file the transcript, bill of exceptions and other papers. It is analagous to the case decided, where the court failed and refused to fix the amount of an appeal bond, on application by a party desiring it done, and where it was held that this did not bar the appeal, but that the party desiring to appeal, might give a bond in a reasonable or proper amount and have his appeal. 1 O. S., 171; 38 O. S., 405.

So, too, it has been held that in cases where an appeal bond does not have to be given by a trustee, when the appeal is in the interest of the trust, and in which case the statute imposes upon the clerk the duty of filing the papers in the appellate court within a fixed time, that a failure on his part to do so, will not deprive the party of his right, but the papers may be filed thereafter. The result of this holding is that this bill of exceptions is properly before us, and must be considered by us in the determination of the question whether the court of common pleas erred in affirming the judgment of the justice of the peace.

In the further consideration of these cases they will be considered together, as practically the same questions, with a single exception arise in each one. And we may say that in many of the points of error relied upon by counsel for plaintiff as to what allegations are necessary in the affidavit as to what constitutes the offense, with which the defendant was charged, and the character and necessity of the proof required on the part of the state are conclusively settled against him by the decision of the Supreme Court in the case of the State v. Kelly, 540. S. page 166, and we are of the opinion that the trial court did not err in its rulings on the trial of the case. And furthermore, that the verdict in the one case, and the finding of the court in the other, were not so manifestly against the weight of the evidence as to justify us in reversing either on that ground. Both judgments will therefore be affirmed.

Aaron E. Moore, for Plaintiff in Error.

S. N. Maxwell, Contra.

The City of Columbus v. Williard.

MUNICIPAL CORPORATIONS.

[Franklin Circuit Court, January Term, 1823.]
Stewart, Shauck and Shearer, JJ.

*THE CITY OF COLUMBUS V. EZRA H. WILLIARD ET AL. DRAINAGE OF STREET.

A municipal corporation which proceeds with skill and care, and without malice, to drain a street for a lawful purpose, is liable to the owner of an abutting lot for such injury as may result to his soil from the withdrawal of its natural support, even though the support withdrawn consists of percolating waters and sand of such nature and so blended with the waters as to be inseparable from them.

ON ERROR to the Court of Common Pleas of Franklin county.

The defendants in error brought suit in the court of common pleas to recover damages for injuries to their real estate abutting on Soioto street in Columbus, from the excavation and drainage of said street for sewer purposes.

The facts admitted by the pleadings and established by the evidence are that in the construction of an intercepting sewer, which is a part of the system adopted by the city, a tunnel was conducted in Scioto street by the premises of the defendants in error, it being wholly beneath the street, and not beneath said premises. At that point the tunnel was forty-five feet beneath the surface of the street. Near said premises a shaft twelve feet square was sunk the depth of forty-six feet and from this shaft the work of constructing the tunnel was prosecuted in either direction. In sinking the shaft two strata of percolating waters and sand so blended with them as to be inseparable from them, were encountered, the first eighteen feet below the surface. To remove the water and sand so as to permit the prosecution of the work, buckets and steam pumps were employed for a number of days, and thus large quantities of water and sand passed from beneath said premises into the shaft and were removed, from which it resulted that the lots of said plaintiffs settled and subsided, a double brick house, which had stood thereon for about forty years, was so far wrecked as to be uninhabitable, and the ground rendered insecure for the erection of other buildings thereon. In the construction of the shaft and tunnel, due care and skill were used, and all known methods were employed to exclude the water and sand.

The trial judge instructed the jury that there could be no recovery for the injury to the structures upon the lots unless there was a want of care and skill in the construction of the shaft and tunnel. On the other hand, he instructed that if it was shown that the lots were injured by the removal of underlying material, there should, to that extent, be a recovery, even though the work was prosecuted with care and skill.

The jury found for the city as to injury to the buildings; but against it for $8,500, the injury to the lots. A motion for a new trial was overruled, and a judgment followed the verdict.

A reversal of the judgment is sought for the reasons that there is error in the instructions that the city is unconditionally liable for the injury to the lots, and that the verdict is contrary to the law and the evidence.

*Affirmed by Supreme Court without report. 54 O. S., 615.

Franklin Circuit Court.

SHAUCK, J.

The judgment below must be affirmed unless there is error in the instruction that if the city removed subjacent and supporting material, it is liable for all resulting injuries to the soil, although the sha and tunnel were constructed with skill and care.

The distinction made in the charge between the rules of liability tor injury to the soil and to structures thereon is said to be justified by the doctrine of Cincinnati v. Penny, 21 Ohio St., 499. Whether it is or not, in view of ali the circumstances of this case, we need not determine.

In considering the question before us, we are not aided by the adjudication elsewhere touching the measure of municipal liability in cases of this character. Beginning with Goodloe v. Cincinnati, 4 Ohic, 500, and continuing until the present, the courts of this state have held municipalities to a higher responsibility to e owners of Cots butting upon their streets than has been recognized elsewhere. This they hav done with entire consciousness of their parture fro the general ¡ine of decisions. Rhodes v. Clevelaud, 10 Ohio, 160; Keating v. Cinci nati, 38 Chio St., 141. In the latter cases the rule to be deduced from. the earlier cases is clearly stated by White, J., to be: this stat. private property is entitled to the same protection as against all classes of corporations as against natural persons, subject the right (... priating such property to public use upon the terms of making, fr. compensation.'

in

The plaintiffs below are, therefore, entitled to compensation for we injury to their soil, if, under the same ircumstances, & recovery could be had against a natural person owning the sol adjac t Corts and law writers seem to have endeavored to excel in the vigorous statenen. of the absolute right of the owner of soil in its natural state tɔ 17 supported by adjoining soll in its natur state. Such right noi en easement acquired by grant or prescription but a natural right essental to the enjoyment of his own property and inneling in his own tie. Gilmore. Driscoll, 122 Mass., 199, it is said eat the right of support from adjoining soil for land in its natural state stands on natural,ustice, and is essential to the protection and enjoyment of property in the sci, and is a right of property which passes with the soil without any grant for the purpose. It is a necessary consequence of this principle, that for any injury to his soil, resuiting from the removal of the natural support to which it is entitled, by means of excavating an adjoining tract, the owner has a legal remedy, in an action at law against the party by whom the work has been done and the mischief thereby occasioned. This does not depend upon negligence or unskillfulness, but upon the violation of a right of property which has been awarded and disturbed." This doctrine is approved in Keating v. Cincinnati. The same doctrine has been asserted with equal vigor in Washb. on Easements, p. 430-437, and Wood on Nuisances, p. 200 et seq., and in the numerous cases there ited No bounds are placed to the application of this doctrine, nor are any conditions to the right of action for such injuries recognized.

A majority are of the opinion that we should accept the doctrine thus stated as authoritative, and adjudge that the plaintiffs below are entitled to maintain the action for injury to this soil.

I am much inclined to a different conclusion. Without questioning the soundness of the general doctrine stated, or the propriety of its ap plication in any of the cases cited, there seems to be a rational and proper distinction offered by the circumstances of this case. It involves,