DAMAGES

In an action to recover damages
for injuries sustained by plaintiff,
resulting from a collision of cars on
a street railway, plaintiff may re-
cover, as part of her damages, the
amount she expended, and what she
may reasonably expect to expend
in order to cure herself of such in-
juries received through the fault or
defendant.
negligence of
Toledo
Electric Street Ry. Co. v. Tucker.
169.

In such action, the petition need
not allege with definiteness the
amount so expended, and in the ab
sence of a motion to make it more
definite and certain, plaintiff may
introduce evidence showing what
the expenses were, and it is not
error for the court to charge the
jury that plaintiff "is entitled to re-
cover for any expense that she may
have been to, as shown by the evi-
dence in the case, for medical
services or attendance, in endeav
oring to cure herself of the injuries
which she has sustained.

Ib.

Where plaintiff has received an
injury, and as the result of such
injury, his arm is permanently
weakened so that it will not be able
to do full work again, a verdict for
$1,200, will not be considered ex-
cessive. Toledo v. Higgins. 29.

Measure of damages for breach
of a contract for personal services.
St. Bernard v. Reig & Marty. 539.

Where a party has been enjoined
from fishing in a certain place in
the waters of Lake Erie, and he
afterwards brings an action for
damages for being thus enjoined:
Held, that such party is not entitled
to recover as damages the value of
the use of his property provided for
the purposes of such fishing. Dwelle
v. Wilson.

611.

The owner of property situated
upon village lots abutting upon a
street cannot recover damages on
account of any obstruction to the
street caused by tracks of a railroad
company which occupies a part of
such street or by running cars and
engines over the same, which does
not cause him injury different in
character from that suffered by the
general public; although his injury
therefrom may be greater in degree;
and the rule of the common law as
to such injuries is not abrogated or
modified by sec. 3283. W. & L. E.
R. R. Co. v. McLaughlin.
DEATH BY NEGLIGENCE-

647.

The conductor on a train is the
only representative of the company

who is in charge of the train, and by
the law of Ohio is made the repre
sentative of the company in its
management and control, and there.
fore if he fails to give his engineer
information which he received re-
garding the safe running of his
train, and a collision results from
this failure, and he receives injuries
from which he dies, the represen.
tatives of his estate will not be
recover
entitled to
any damages
from the company, because the
injury received by the conductor
from which he died resulted from
his own negligence. L. S. & M. S.
206.
R. R. Co. v. Hunter.

Where a train in running on a
down grade, broke apart and the
forward part of the train separated
from the rear portion, and the en-
gineer who was in charge of the
forward part, upon discovering that
his train had parted, brought his
section to a standstill. whereupon,
the rear portion overtook the
front part of the train and collided
with it with considerable violence.
The decedent, a brakeman, at the
time of the collision, was in the
discharge of his duty, under the
orders of the conductor, and as a
result from such collision received
injuries from which he afterwards
died: Held, that the acts of the
engineer constituted negligence for
which the defendant company is
liable. Railway Co. v. Terry. 597.

In an action for negligently
causing death, where the defense
is that the deceased was guilty of
contributory negligence, and the
evidence is conflicting. and dif.
ferent minds may reasonably come
to different conclusions from the
testimony, the question should be
submitted to the jury, where the
facts are such that the jury may
reasonably find the deceased free
from contributory negligence; a re
viewing court will not disturb a
verdict in favor of his admin.
istrator. Pennsylvania Co. V.
Trainer.
567.

DEDICATION-

H. and M., owners of a tract of
land prepared and duly acknowl
edged a part of the same, laying
out upon it certain streets and lots.
presented the plat to the city
council and having been by that
body duly accepted, had the plat
recorded in the office of county
recorder, and soon thereafter sold
a portion of the land included in
the plat, describing it by boundary
lines, which included a section of

one of the streets. The grantee
entered into possession and closed
with a fence on the boundary lines,
and thereafter for more than
twenty-one years continued in the
occupation of his premises, using
that part of the street, so included
as an incident to his house and
barn for pasturage and garden
purposes and entirely excluded the
public therefrom, the city in the
meantime making no attempt to
open the street: Held, that his
possession of that part of
his
purchase which was included within
the street, as shown upon the plat,
was such as to give him title to
that part of the street by adverse
possession against the city. Mott
V. Toledo.
DEEDS-

216.

It is a fundamental principle of
the construction of deeds, and all
written instruments, that the
expressed intention of the parties,
when ascertained, shall be carried
out. Kirby, et al. v. Brownlee et al.
460.

Where the terms of a deed
come within the rule in Shelley's
case, the clear and unmistakable
expressed intention of the grantor
is not regarded, but an unreasonable
and arbitrary rule of law is applied
to defeat the expressed intention of
the grantor, and this is the rule in
property in Ohio.
Ib.

When the owner of certain
lands, in contemplation of marriage,
executes a deed by which the grantor
conveys her separate property to a
trustee to be held in trust for the
sole and separate use of such
grantor during her life, and in case
of her death then her husband if
he survive her, is to receive the
rents and profits during such sur
vivorship, and furher provided
that upon the death of such sur
vivor the property was to go to the
grantor's lawful heirs: Held, that
such marriage having taken place,
and the grantor having died before
her husband, then such property
Iwould vest in the grantor's lawful
heirs, by force of the statute, and
therefore the rule in Shelley's case
would not apply to a deed of this
kind.

DEPOSITIONS-

Ib.

A party to a case cannot
compel the opposite party to give
his deposition when he is in good
health and expects to be present at
the trial, and where the deposition
is evidently taken for the purpose

ERROR-Con.-

all the parties in interest in the
original action. Tennessee Lumber
Co. v. Marcy.
444.

The right or cause of a pro-
ceeding in error accrues at the time
of the rendition of the judgment or
making of the final order, and under
sec. 6723, Rev. Stat. such proceedings
must be commenced within six
months from that time. Collins v.
Mansfield.
445.

The overruling of a motion for
new trial is not a final order to
which error can be prosecuted. Ib.

Where, by the transcript of a
case, it nowhere appears that a final
judgment or order has been entered
in the case, such case cannot be
brought into the circuit court, before
it is finally determined, or a final
judgment or order is made in the
common pleas court. Autenreith v.
Autenreith.
378.

Where the sentence of a court
is erroneous in part, error may be
prosecuted to the part which is er-
roneous and this to be the exclusion
of relief by habeas corpus. In re
Moore.
575.

The prosecution of error con-
templates the correction of that
part of a proceeding which is
wrongful and illegal.
Ib.

Refusal of a justice to discharge
an attachment cannot be reviewed
on error, when there was no ex
ception to such ruling and no bill
of exceptions taken, setting out
the evidence submitted. Bradley v.
Wacker.
565.

It is error for a justice of the
peace for failing to discharge an at-
tachment, where the only evidence
was the affidavit of the plaintiff
averring the grounds of the at-
tachment, and defendant's affidavit
denying those averments.
EVIDENCE-

Ib.

Proof that defendant, prior to
the commission of the alleged
crime, had seduced deceased, is in-
competent, unless it affirmatively
appears that such seduction was in
some way connected with said
crime as motive thereof or other-
wise. Rose v. State.
226.

That the deceased was a person
of tender years and of weak mind
at the time of such seduction. were
facts wholly irrelevant to any issue
in the case.
Ib.

A conversation had with de-
fendant while in jail awaiting trial,
whereby certain prejudicial state-

or

ments made by others are com-
municated to him, cannot be given
in evidence against him in the
absence of any admission of,
acquiescence in their truth by him,
and in the absence on his part, of
any conduct or demeanor indicative
of guilt in connection with such
communication or as a result
thereof.
Ib.

Where the only effect of the
proof of such conversation is to
show that a person not competent
to be a witness had in fact made
such prejudicial statements, its ad-
mission is error.
IL.

The fact that defendant was
seen and recognized at a certain
time and place cannot be proved by
showing that the party making such
recognition shortly thereafter stated
to the witness who the person was.
Ib.

Nor is such evidence competent
in corroboration of a witness testi-
fying to having made such recog-
nition.
Ib.

If, after the commission of an
offense, threats are made by the de-
fendant against the prosecuting
attorney, evidence of such allege1
threats are not admissible, unless
it appears that they were made
under such circumstances and are
of such character as to manifest a
consciousness of guilt. Gawn v.
State.

19.

In an action for injuries from
a defective sidewalk, it is not error
to allow witnesses to testify that
they were in the habit of passing
along the street, and that the
sidewalk, in the immediate vicinity
of the place where the injury
occurred, had been taken up and
relaid, and that the planks were
unequal and that there were some
holes in the sidewalk; such evidence
being received for the purpose of
showing knowledge on the part of
the city of the defects in the
sidewalk. Toledo v. Higgins. 29.

To establish the former mar-
riage of one on trial for bigamy,
where it is not claimed that such
marriage was in conformity with
the statute, the same circumstances
are admissible in evidence as are
admissible to establish the same
kind of a marriage in a civil case.
Swartz v. State.
43.

Conversations between parties
interested upon one side of a con-
troversy, at which the other party
was not present and had no means
of knowing of it, would not be com-

petent to show the actions or in-
tention of an opposite party. Kuhn
et al. v. The Woolson Spice Co. et
al.
289.

Notions and beliefs of a witness.
however, as evidence of a fact or
condition, are only valuable when
formed and based upon intelligent
and careful observation under favor-
able opportunities, and utterly
without value or weight unless it
appears that the notice taken was
careful and judicious and under
favorable conditions. Pepple V.
Pepple.
102.

Where one purchases goods,
and afterwards makes complaint to
the vendor as to their quality and
condition, and the vendor sends a
person experienced in the business,
whose expenses are paid by the
vendor: Held, that such person was
the agent of the vendor and that
what he said while making the in-
spection is part of the res gestae
and admissible in evidence. Tillyer
et al. v. Glass Co.
209.

Where the vendee receives his
goods at different times, he may
show, by proper testimony, that the
drafts accompanying the bills of
lading were paid before the goods
were received. Such testimony
tends to rebut any inference of
waiver of any defect in the goods
received.
Ib.

In an action to recover the
value of certain premises destroyed
by fire through the alleged negli
gence of a railroad company in
omitting to use proper appliances
to prevent the emission of sparks
from its locomotive, it is error to
permit evidence to go to the jury
which tends to show that at dif
ferent times and places engines of
the railroad company, other than
the one which it is claimed com-
municated the fire, emitted sparks
which were carried long distances
by the wind; such evidence being of
too remote a character and because
of its remoteness it is incompetent
and inadmissible. Pennsylvania Co.
v. Rossman.
119.

Where a police officer without
a warrant arrests a person for dis-
orderly conduct, the arrest being
upon view, and the accused is after-
wards acquitted and then brings an
action against such officer for an
undue assault made upon him and
for false imprisonment and mali-
cious prosecution, such officer should
be allowed to testify to the fact
that to his knowledge, and prior to

the arrest there had been some
person or persons prowling about
the houses in his neighborhood and
peering into windows and that such
persons acted as the accused was
acting at the time of his arrest.
Such evidence goes to show the ex-
ercise of probable cause by the
officer in making the arrest. Britton
v. Granger.
182.

A person who causes the arrest
of another may show the bad char-
acter of the person arrested. Such
evidence goes to show the likelihood
that the accused committed the
crime.
Ib.

In order to convict a person
charged with an assault with intent
to rape, it must appear from the
evidence that an assault was made
upon the prosecutrix, and that what
was done was done against her
will. Martin v. State.
564.

The specifications given to the
contractor by the city, showing
how the work of laying the sidewalk
should be done, and the written
report of the engineer, showing the
excavation necessary to be made, are
not competent evidence of the
depth of the excavation, and should
have been excluded. Moon v. Mid-
dletown.
579.

Statements of employees
charged with specific duties cannot
be offered in evidence to bind de-
fendant, when it appears that such
employees had no control or author-
ity as would make their admissions
competent. Ohio Oil Co. v. McCrory.
344.

Statements made to a com-
mercial agency, and also statements
made by the agency to its sub-
scriber, the purchaser, are proper
to be introduced in evidence to en-
able the jury to say whether the
agency stated to the purchaser
those things which it had been au-
thorized to state to the latter or to
anybody else who had any good
reason for inquiring. Wilmot V.
Lyon & Co.
394.

In an action to set aside a sale
on the ground of fraud, it is com-
petent to introduce false representa-
tions made by the purchaser to
other persons, both before and after
the sale, for the purpose of showing
that there was a fraudulent con-
cealment on the part of the pur-
chaser not to pay for such goods.
Ib.

The genuineness of the sig.
nature of a person sued upon a
written instrument which purports

EVIDENCE-Con.-

to be signed by him, may be put in
issue by "an affidavit that such in-
strument of writing was not made,
given, subscribed, accepted, or en-
dorsed by him." Beers & Co. v.
Gurney.
411.

A hypothetical question must
be based upon facts assumed to
have been proved in the case on
trial. Commissioners v. Commis-
sioners.
593.

Testimony as to a conversation
by telephone between the prose-
cuting witness, and his agent, in
the absence of the accused, and
without his knowledge, is wholly in-
competent. Limerick v. State. 664.

It would be most unjust to the
rights of a defendant on trial for a
grave offense, to allow evidence of
the guilt of other parties to be
shown without some evidence to
connect him with such parties, or
make him responsible in some way
for their conduct, and great care
should be exercised by the court in
this regard.
Ib.

Evidence of the acts or decla-
rations of persons alleged to be co-
conspirators with the defendant on
trial, cannot properly be received
against him, until the judge is sat-
isfied that apart from them, there
are prima facie grounds for believing
in the existence of the conspiracy.

Oral statements or declarations
of an alleged donor are not com
petent, as against innocent third
persons, to prove a gift of real
estate, or of an appurtenance to real
estate; nor, are such declarations
admissible in evidence where they
have a tendency to discredit the
title to the real estate theretofore
conveyed, in due form, by such al
leged donor. Hall v. Geyer. 426.

Endorsement of credit on a
note is not prima facie evidence of
payment. Keel, Exr., v. Rudisell.
464.

to them is encumbered by and
subject to this lien. Corey v. Hayes.
272.

Where an administrator ir-
stitutes proceedings to sell the real
estate of the decedent to pay al!
proper charges and allowances, and
the widow having a dower interest
in such estate gives a bond properly
executed under the provisions of
sec. 6146, Rev. Stat., for the purpose
of avoiding the sale of such real
estate, and afterwards pays to the
administrator the amount of all
valid claims and debts of the de
cedent: Held, that such widow is
not a mere volunteer, but is per-
sonally and directly interested in
the real estate, and is therefore en-
titled to stand in the place of the
administrator with respect to a lien
against the real estate of the de-
cedent, to the end that she be saved
from any loss and the debts fully
discharged from the rightful

One who takes and keeps upon
his own premises, material or
substance which in itself is danger-
ous and liable to explode and do in-
jury to person or property on
adjoining premises, or on premises
in the neighborhood or vicinity.
and it does explode, such person is
liable in damages for the injury
directly caused thereon by such ex-
plosion without proof of negligence
in storing or caring for such ma-
terial or substance. St. Mary's
Woolen Mfg. Co. v. Bradford Gly.
cerine Co.
582.

FALSE IMPRISONMENT-

In an action for false impris
onment against the chief of police
by a person arrested and imprisoned
by the order of the chief without
any affidavit being filed or any
warrant issued, the arrest and im-
prisonment being made on Satur-
day, and on Monday the hearing
was to take place, but owing to a
riot in the city which called the
chief away, together with the officer
who made the arrest, the prisoner
instituted habeas corpus proceedings
and was discharged and afterwards
commenced this action: Held, that
the officer did not himself cause an
affidavit to be filed; that it was re-
versible error for the trial court to
charge the jury in substance that
the chief was guilty of unreason.
able delay in making these affida-
vits, and that inasmuch as he did
not file the affidavits Monday morn-