Opinion of the Court. It would, therefore, appear from tnese and many other decisions not necessary to quote at length, that the courts have taken a broad, liberal and comprehensive view of these statutes, and by such liberal construction have made them efficient to accomplish the object and purposes for which they were enacted, with all of which this court is in full accord. In this case the evidence shows conclusively that this machine is not one that comes within the ordinary equipment of railroads, and is not one designed for railroad use, but on the contrary that it is an instrumentality provided and used by the company, not on the line of its road, or upon any part of its system, not in any connection whatever with its railroad business, or its duties as a common carrier, but solely and exclusively for the construction of its dock not then a part of the railway system and not then being used for any railroad purpose whatever. The use for which this machine was constructed, and the one that gives character to it, was that of a crane or derrick used for handling heavy materials in construction work, and there can be no reasonable contention that while it was used as a crane or derrick that it would come within either the language or the meaning of these sections, nor can it reasonably be contended that the fact that a railway company used this machine for construction work, work entirely separate and apart from its business as a common carrier, and entirely separate and apart from its railway system would bring this machine within the purview of these sections. On the other hand, it is equally ap Opinion of the Court. parent that the railway company might have made such use of this machine that both of these sections would apply. It is contended on behalf of the plaintiff in error that these tracks connecting the dock in process of construction with its railway system, were temporary tracks, and that the only cars that were hauled over these tracks were those loaded with material for use in the construction of the dock, but neither of these contentions is important in the determination of the questions in this case. If this machine, regardless of the name by which it was known or designated, had been used by the railway company on the line of its road, either for the purpose of a locomotive, or for any other purpose in furtherance of, and as a part of its railway business, then the character of the tracks and nature or ownership of the material with which the cars were loaded would be of little importance, for by such use this machine would come not only within the meaning, but the terms of these statutes requiring automatic couplers and requiring drawbars of standard height. The evidence of use relied upon by the defendant in error to bring this machine within the operation of these sections is, that after the railway company, as a common carrier, had performed all its duties as such by delivering the loaded cars upon the temporary tracks constructed on the partly built dock, that in furtherance of the construction of the dock this derrick, or crane, was used as the power for shifting these cars to the desired position on the track for unloading, or for Opinion of the Court. moving cars, so that they would not interfere with the unloading of other cars. The fact that the railway company was building its own dock and had not let the construction thereof to a private contractor ought not to cause any confusion in determining the character of the use to which this machine was put. The construction of this dock by the railway company was wholly apart, and wholly separate, from its business as a common carrier, and after the railroad company had deposited these loaded cars upon the partly built dock, its duties as a common carrier were ended, and from that time forward whatever was done in and about the construction of the dock was a totally different enterprise, just as much as if an entirely different company, or contractor, was engaged in this construction, and after these cars had been delivered by the railway company would then take charge of these materials and apply them to their use in the building of this dock. If a private individual had been engaged in this work, this machine would have been just as necessary to his use in this construction as it was to the company's use, and yet under such circumstances it would hardly be claimed that these sections apply. This case does not come within the principle, or the reasoning of either of the adjudicated cases hereinbefore referred to. In all of these cases the controversy arose over cars used on the line of the company's road, or in connection with the railroad business. This machine was not coupled into the company's train, was not used on the line of the company's railway, and was not used in Opinion of the Court. any connection whatever with the company's business as a common carrier, but on the contrary was used for the sole and only purpose of furthering the construction of this dock, which was then not used by the railway company as a part of its system and not connected therewith except by these tracks for delivering material to be used in the completion of the dock. If the dock had been completed and the railway company had then been using the same as a part of its system and employing this crane or derrick in the furtherance of its business to move the cars about upon the dock to be unloaded into the boats or loaded from the boats, a very different question would be presented. It may be that from the nature and construction of this machine it was not a proper instrument to use for the moving of loaded cars in and about this construction work, but whether it was proper or not for this service, the liability of this company for using the same separate and apart from its railroad business, and in and about an entirely different enterprise than the operation of its railroad, cannot be measured by any other rule or standard than the liability of any other employer not a common carrier engaged in a similar work. For these reasons the common pleas court erred in refusing to give, before argument, the first, second and third requests of the plaintiff in error, and erred in stating in its general charge to the jury that this machine came within the operation of Section 3365-276, Revised Statutes, and Section 3365-27d, Revised Statutes, and for these errors the judgment of the common pleas court and the judgment Statement of the Case. of the circuit court affirming the same are reversed and cause remanded to the common pleas court for further proceedings according to law. Reversed. DAVIS, C. J., SHAUCK, PRICE and JOHNSON, JJ., concur. THE OHIO ELECTRIC RAILWAY COMPANY V. THE VILLAGE OF OTTAWA. Municipal corporation has no authority-To compel street railroad company-To light its bridge within limits of corporationSection 1536-176, Revised Statutes. A municipal corporation has no authority to compel an interurban or street railroad company to light its bridge or railroad within the limits of such corporation. Section 1536-176, Revised Statutes, applies only to steam railroads. (No. 12866-Decided January 16, 1912.) ERROR to the Circuit Court of Putnam county. The village of Ottawa brought suit in the court of common pleas of Putnam county against The Ohio Electric Railway Company, to enforce the collection of a claim which the village had for lighting the tracks of the railway. The petition after averring the incorporation of the parties. alleged that the defendant operated cars through said village on certain streets named; that the defendant had prior to the commencement of the suit succeeded to all the rights of a prior company owning said tracks; that on May 6, 1907, the council |
