through a municipality as was done here, and offer to carry passengers free and then disregard and violate its contract, do nothing for a period of nearly a year, thus keeping out other companies or individuals absolutely and then wholly abandon the enterprise and be practically immune from all damages. We can readily see how there might be a purpose with companies or persons to put in sham bids to keep others from constructing street railroads and we do not think the law ought to be such as to sustain conduct of that kind-not saying that that is true in this case-but that it might be done. In many cases of this character the courts have construed contracts similar to this to be for stipulated damages.

In the case of Brooks v. Wichita, 114 Fed. Rep., p. 297, the court say on page 298:

"For this reason it is common for municipal corporations, in making contracts of this character, to stipulate for the payment of a fixed sum as liquidated damages in case the public utility is not constructed and put in operation within the time limited by the contract (citing cases). This is the only method by which the city can obtain anything like an adequate compensation for the loss and damage sustained by the public by the breach of such a contract. The sum forfeited as liquidated damages goes into the treasury and inures to the benefit of the public.

In the case of Peekskill, C., C. & M. R. R. Co. v. Village of Peekskill, 47 N. Y. Sup., p. 305 (affirmed without report in 165 N. Y., 628), the village granted a franchise to the railroad company to construct a street railroad through its streets. Among other conditions, it was provided that in the event of failure of the company to construct and operate its road within one year, the sum of ten thousand dollars, which it was required to deposit with the treasurer of the village as a guaranty of good faith, should immediately "be and become absolutely the property of the village of Peekskill, for its uses and purposes as liquidated damages for said failure and not by way of penalty. The company never built its road and thereafter sought to recover its said deposit from the village. The court said:

"It may be that at the time when this corporation asked for and obtained the grant others stood ready to furnish what thờ village was desirous of obtaining. The village has no railroad

Hattersly v. Village of Waterville et al. [Vol. IV, N. S.

and is therefore damaged. How much it is damaged may not be, and probably is not susceptible of proof. It may be damaged in a very large sum, and yet, under any legal rule it would be quite difficult, if not impossible, to prove its damage. By the terms of the contract the village evidently had in mind three things which it wished certainly to provide for: First, to compel a deposit by the plaintiff as a guaranty of good faith; second, to provide a fund to protect itself from any damage it might sustain by the construction of the road, in the interference with and tearing up of its streets; third, for such damages as it might sustain by failure to construct the road. As the difficulty of legally establishing its damages under the last two heads would be attended with great embarrassment, and under the last nearly impossible, we think it was the intent of the defendant fairly to be gathered from the contract and the surrounding circumstances, to contract for this sum as liquidated damages, and not as a penalty."

In the case of the City of Salem v. Anson et al (Supreme Court of Oregon), 67 Pac., p. 190, the court said:

"2. Where in granting an electric light franchise a city requires the grantee to furnish bond in a specified sum that the plant shall be completed and in operation by a specified date, and the grantee accepts the terms and furnishes the bond, such sum should be construed as liquidated damages, and may be recovered without alleging or showing any actual damage."

The case of Nilson v. Jonesboro, 57 Ark., p. 163, is also in point. The syllabus is as follows:

"1. By a clause in a contract for the building of a street railway in plaintiff town, defendants, in default of its construction within a certain time agreed 'to forfeit and pay' the sum of $500 to plaintiff. Held: An agreement to pay liquidated damages.

"2. By the clause in a contract for the building of a street railway in plaintiff town, defendants, in default of the construction of the railway within a certain time, agreed to 'forfeit and pay' the sum of $500 to plaintiff. By another clause defendants, as an earnest of good faith, on their part to build the railway, agreed to deposit a bond for $500 with plaintiff-Held: That the giving of the bond, though penal in its nature, would not affect a construction of the former clause as an agreement to pay liquidated damages."

We think these cases state the law correctly and lay down the general law of the land upon this question, and the rule laid

down is a salutary one. It is plain, simple and easily understood by all men, and such a rule, if in force, affords a municipality some protection against sham bids and enables it to recover substantial damages for the violation and breach of such a contract as this. To send the Village of Waterville to an action for actual damages to be proven upon a trial would be to practically deny all relief in this case. We do not think any rule, either of law or equity, requires this.

We are of the opinion that the judgment of the court of common pleas was correct and therefore it will be affirmed.

King & Tracy, for plaintiff in error.

Smith & Beckwith, for defendant in error.

MANDAMUS TO COMPEL SIGNING OF BILL OF EXCEPTIONS. [Circuit Court of Hamilton County.]

STATE, EX REL WOLF, V. FREDERICK S. SPIEGEL, JUDGE.

Decided, December 16, 1903.

Bill of Exceptions—Mandamus to Compel Signing of—Affidavits in Support of Motion for a new Trial Not Part of, When; Judicial Discretion-Amendment to Bill.

1. Where the relator prays that the respondent be compelled by mandamus to sign a certain bill of exceptions, and the respondent answers that the said bill is not a true bill and that a certain amended bill was filed which he has determined to be the true bill and has signed and allowed, and this answer is not denied by any reply, the respondent is entitled upon the pleadings to have the bill dismissed.

2. Affidavits filed with the clerk upon motion for a new trial and not presented to the court upon hearing should not be embodied in the bill of exceptions.

GIFFEN, J.; SWING, J., and JELKE, J., concur.

The relator in her petition avers that she filed a true bill of exceptions with the clerk of the court in the case of Carrie Wolf against Sarah Marmet and others, and that the clerk transmitted the bill to the respondent, the trial judge in the case, who reurned the same to the clerk unsigned, unindorsed and unallowed, and the relator prays that the respondent be com

State, ex rel Wolf, v. Spiegel, Judge. [Vol. IV, N. S

pelled by mandamus to allow and sign the relator's said full, complete and true bill of exceptions in said case against Sarah Marmet and others.

The respondent, by answer, says that the bill of exceptions so filed with the clerk was not a true bill, and that an amended bill of exceptions was filed with the clerk by the defendants in the cause, and the respondent judicially determining that the latter was a true bill, signed and allowed the same. This is not denied by any reply, and upon the pleadings therefor the respondent would be entitled to have the petition of the relator dismissed. But assuming that the allegation in the answer was denied, the question arises whether affidavits filed with the clerk of the court upon a motion for a new trial and not presented to the court upon the hearing should be embodied in the bill of exceptions. The object of filing the affidavits with the clerk before the hearing is to give the adverse party an opportunity to prepare and file before the hearing counter-affidavits, neither of which are part of the record of the cause. The party so filing the affidavits may elect before the hearing not to present the affidavits to the court, and if offered as evidence the adverse party may object on the ground that they are not properly executed, or that the statements therein are mere conclusions of law, or that the facts stated are irrelevant to the issue. If the objection is sustained by the court and the affidavits ruled out, the party is not entitled to have them attached even then, to a bill of exceptions, unless he excepts to the ruling of the court in excluding them. The affidavits not being presented to the court, the court having no knowledge that the same were filed with the clerk, and rightly declaring the bill of exceptions containing such affidavits not to be a true bill and the respondent having answered that he signed a true bill of exceptions in the cause, this court can not interfere with his discretion in the premises. State v. Hawes, 43 Ohio St., 16.

The petition of the relator will be dismissed.

Galvin & Bauer and Dempsey & Fridman, for relator.
Charles W. Baker, contra.

Negligence-Street Railways-Pedestrian Attempts to Cross Track without Looking for Car-Unobstructed View of Track for Several Hundred Feet-Gong not Sounded nor Fender Dropped-But Pedestrian Guilty of Contributory Negligence.

Where a pedestrian attempts to cross a street car track without look. ing to see whether there is a car approaching, and is struck by a car and injured, and there is nothing to show that the company was guilty of willful or culpable disregard of duty after having observed his perilous situation, he is guilty of contributory negligence, and no liability attaches to the company, notwithstanding the gong was not sounded or the fender dropped.

MCCARTY, J. (sitting in place of Winch, J.); HALE, J., and MARVIN, J., concur.

Error to the Court of Common Pleas of Summit County.

This cause comes into this court on a petition in error to reverse the judgment of the court of common pleas for alleged errors occurring in the trial of this case in that court. The action was brought to recover damages for the alleged negligence of the defendant below, and defendant in error here. It was tried at the April Term of the court in 1903, to a jury. On motion of the defendant at the conclusion of the testimony the jury were instructed to return a verdict for defendant, which it did, to which exceptions were taken. The cause of action stated in the petition below was as follows so far as I need read it herein:

At the date next hereinafter named the defendant owned and operated a line of street railway in the city of Akron in said county, and in and over the various streets and public ways thereof, and which said railway was then and there equipped with tracks, single as to some streets and double as to others, upon and over which tracks the defendant used cars for the carriage of its passengers, propelled by electricity as the motive power thereof. One of the streets so occupied and used by the defendant with its said tracks and cars moving on and over the