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Gawn v. The State of Ohio.

In view of this possible dispute and uncertainty as to the facts, and especially in consideration of the full knowledge thereof possessed by the trial court, the overruling of the motion for a new trial on this ground is held not to be manifestly erroneous by the majority of the court.

7. It is also contended that the verdict is not supported by sufficient evidence. This assignment of error has commanded the serious attention of counsel and the court. It has been fully and ably argued, and we have given much time to its consideration. While the record is voluminous, there are, after all, only a few decisive facts relied upon by either party.

The larger part of this large record is devoted to evidence of declarations and conduct of the accused, covering a wide range of transactions, both before and after the building was burned, the main bearing of which was to show that the defendant would be benefited by its destruction, and, therefore, had a motive for destroying it.

He was an architect and had, theretofore, furnished plans and estimates for school houses in this township. The profit to him in each case, as estimated, was about fifty dollars.

School house No. 6 was antiquated and not up to the requirements of the times. It was a matter of frequent remark in this sub-district that its destruction would be a public blessing, and such remarks had been made in the hearing of the defendant.

After its destruction the defendant immediately applied for the job of furnishing plans and estimates for a new building. He persistently pursued the different members of the board of education and urged the immediate erection of a new school house, and furnished arguments and statements, verbal and written, showing the economy of speedy action.

Afterwards, while a room in.a private dwelling was being used for a school room, he officiously undertook to show its inappropriateness for this purpose and brought the matter to the attention of the State Board of Health.

All this was done, apparently, for the purpose of compelling the board of education to build a new school house at once. His officiousness was encouraged by certain parties who suspected him of burning the old school house. When he learned that he was suspected of this crime he directed all his energies to the removal of such suspicion. He employed an alleged detective to ferret out the authors of his disgrace, while he undertook to remove such suspicion by arguments, explanations and denunciations.

The history of all these conversations and transactions is brought into this record to show motive.

The proper part that evidence of motive may be made to play, in a criminal trial, is to remove the uncertainty arising from the want of such evidence. Its importance for this purpose is unquestioned, especially when, as in this case, the state must rely upon circumstantial evidence alone; but it cannot be used as affirmative proof that this building was set on fire by the defendant.

Because of the assumption, that all responsible human action is voluntary, and is caused and guided by self-interest, the question of motive necessarily forces itself upon the mind in the investigation of every alleged criminal act.

It is only, however, when such act is established by other evidence that the question of motive can be appealed to, to give corroboration and assurance to the conclusions drawn from other evidential facts.

Lorain Circuit Court.

We must then turn our attention to the consideration of the material evidentiary facts of the case.

It is fully established that on the 6th day of October the defendant was familiar with the school house and knew, or might have known, that there was no fastening on the southwest window; that this window was opened and the fire set in that part of the building; that numerous tracks of a three-quarter buggy, drawn by a horse having a small foot and wearing plate shoes, were found on the following morning in the road near the school house, indicating that the horse had been turned partially out of the travelled part of the road opposite this window; that these tracks were similar to those made by the defendant's buggy, and that his horse had small feet and wore plate shoes at the time.

Evidence was given tending to show that the defendant was seen and identified near the school house at about the hour of nine o'clock on this evening, driving to the south at a rapid pace, and that a light was discovered in the school house at about this time, or soon thereafter.

As to the transaction on the evening of October 10th, it is proved that the school-house was discovered to be on fire at twenty minutes past ten o'clock, sun time; that the tracks of a horse and buggy, similar to those found on the morning of the 7th, were discovered in the road coming towards the school-house from the south, and then going west. Evidence was given tending to show that the horse and buggy of the defendant were absent from the livery stable, where they were kept, during all of this evening, and that the defendant did not return with them until ten o'clock or after.

On the part of the defendant it is shown that up to the time of the making of this charge he had sustained a good reputation for honesty and integrity; that upon the night of October 10th, he was transacting business with various parties, at his office in the city of Eric, until the hour of 9:30, sun time; evidence was also given, that this school house was located west of the city of Elyria and three miles from is office.

Evidence was also given on his part, tending to show that he was at home, in the city of Elyria, all of the evening of October 6th, and that he remained in his office on the evening of October 10th, 'till ten o' clock, sun time.

This, in brief, is the whole case. The force of some of these circumstances is weakened, if not wholly destroyed, by other undisputed facts. The tracks of a three-quarter buggy was a circnmstance of little, if an probative force against the accused; as many vehicles of that kind were shown to have been in use at that time in that vicinity. It is also a conceded fact that the defendant passed this school house with his horse and buggy late on that afternoon of October 6th.

There was a like infirmity of inconclusiveness as to the tracks of the horse There was nothing uncommon about the shoes of the horse, in size or otherwise.

These circumstances lack the essential elements required to make them incriminative. They are perhaps consistent with guilt but are in no wise incompatible with innocence.

If the defendant visited this neighborhood at about the time the fire was set on the evening of the 6th, his presence there, in connection with his testimony that he was then in Elyria, would raise a strong presumption of guilt.

The witness, Ann Reícring, says that she heard the sound of a raply approaching carriage, while she was on her way to her home from a

Gawn v. The State of Onic.

neighbor's, at abort nine o'clock of that evening, and stepped aside 'till the carriage passed; that the top of the carriage was down and that the speed of the horse was somewhat slackened as it passed; that she recognized the defendant and the rig, and also observed that he had on a dark suit of clothes and a dark stiff hat.

The jury must have given full credence to this story, as it is the only testimony which could have convinced them that the defendant was guilty of this charge.

We think her testimony was not entitled to full credit. It was a dark night, so dark that she did not see the carriage upon her, and learned it from the noise of its approach. who was with her at the time, says that she could not the carriage because it was so dark.

'till it was close Her daughter, tell who was in

That any one couid tell the color of clothes under such circumstances is impossible. At best, it could only have been the opinion or conjecture of the witness, Ann Refering, that she saw the defendant on that night; and when she first began to entertain that opinion is left in uncertainty by the record.

The material circumstance to sustain the charge made on the 10th of October is the alleged fact that the defendant's horse and buggy were taken out of the livery barn early in the evening and not returned by the defendant 'till ten o'clock or somewhat later. This claim is supported by the testimony of two witnesses. The witness, Bivens, the owner of the stable, says he was about there until about nine o'clock, and that the horse had not been brought in at that time. Upon crossexamination he admits that there was nothing to call his attention especially to this matter at the time, and we are satisfied that it was, with him, only a matter of the most shadowy impression. Indeed, the record discioses the fact, that some days after the 10th, he quired of Worden, the man in charge of the stable, whether "Gawn s horse was out late that night."

The witness, Worden, was working at this stable; and he says that it was ten o'clock or later before the horse was brought in. He also says that there was nothing about this circumstance to attract his attention at the time, and that he only fixed the date by figuring back, sometime afterwards. He was unable to fix other times when this horse, or other horses, were out during an evening, as it was a matter of common occurrence and of no consequence.

The time when the fire was discovered, on the 10th, by the witness, Osman, is fixed with as much certainty as any other fact in the case, as being at 10:20 P. M., sun time. He testifies that he then went to the school house, some quarter of a mile away, and found a small fire in the front part of the building. That there was nothing to indicate how long it had been in progress, and that it was burning very slowly at that time. It may be possible that the defendant could have left his office at 9:30 sun time and have traveled by some indirect route so as to have approached this building from the south, have set this fire, and then have gone to the west, and yet have returned to the livery stable at ten o'clock. or soon thereafter; but in the light afforded by this record it is extremely improbable.

We are fully convinced that the verdict was not warranted by the evidence.

A assignments of error not commented upon are overruled. The

judgment in this case is proceedings.

Hamilton Circuit Court

reversed and the cause remanded for further

E. G. Johnson, Judge Blandin and H. G. Reddington, for Plaintiff in Error.

F. F.Thomas, Prosecuting Attorney, and A. R. Webber, for Defendant in Error.

STREET RAILROADS-NEGLIGENCE.

[Hamilton Circuit Court, December 11, 1896.]
Smith, Swing and Cox, JJ.

DERRICK T. VAIL V. THE CINCINNATI INCLINED PLANE RY. Co. PROXIMATE CAUSE OF INJURY TO PASSENGER RIDING UPON THE PLATFORM. Where a passenger, riding upon the platform of a street car, suffers an injury caused by the derailment of the car: Held, that the fact of his riding upon the platform was not the proximate cause of his injury, where the evidence clearly showed that the road company was negligent in the managerent of its car, a and bet the time of suca derailment; but that the proximate cause of the injury was caused by the negligence of those in charge of the car ERROR.

SMITH, J.

Two of the judges who heard this case are of the opinion that the ver dict of the jury was manifestly against the weight of the evidence, and that for this reason a new trial should have been granted. The evidence in our judgment clearly showed negligence on the part of the defendant. company, in the agement of the car, at and before the time of the derailment thereof by reason of which negligence the car ran off of the track ani ran across the street against the curbstone, thereby causing the injury to the plaintiff. There was an utter disregard by those in charge of the car of several of the clear and explicit rules of the company, and the disregard of which in all probability produced and brought about the result complained of.

In the second place the testimony does not show that the plaintiff by his negligence contributed to his own injury. It is true that at the time he was hur, he was standing upon the rear platform of the car. But this was with the full knowledge of the conductor who made no objection thereto, and the fact that he was occupying that position, under the circumstances disclosed even if it be cceded that he was negligent in doing sc, was not the proximate cause of the injury received by him. The proximate cause of the derment of car and the consequent injury to the pia rtiffs the negligenc f as the negligence fose in charge of the car before spoken of Hic ceing where was merely a condition, and in no sense a cause of the derailment or of the injury. Being there, he would of course assume the risk of such injury as might naturally or reasonably be expected to happen to him, while the car was being run on the track -as of being jolted from the step or the platform, or of injury by collis sion with teams, vehicles or other obstructions upon the highways; but not of those produced as in this case.

Street Railway Co. v. Bendron, 2 Am. & Eng. R. R. Cases 30; Railway Co..hwartz, 8 C. C. Rep. 8

Ramsey, Maxwell & Ramsey, i torneys for Plaintiff in Error.
Miller Outcalt, Attorney for P. R. Co.

1

Toledo v. Higgins.

EVIDENCE-CHARGE TO JURY-DAMAGES.

[Lucas Circuit Court, January Term, 1895.]

Haynes, Scribner, and King, JJ.

TOLEDO V. HIGGINS.

1. EVIDENCE TO SECW KNOWLEDGE OF THE CITY OF DEFECTS IN ITS SIDEWALKS. In an action for damages for injuries received by reason of a defective sidewalk, it is not error to allow witnesses to testify that they were in the hobi: of passing along the sheet, and that the sidewalk, in the immediate vicinity of the place where the injury occurred, had been taken up and reid, and the the planks were unequal and that there were some holes in the sidewall; such evidence being received for the purpose of showing knowledge on the part of the city of the defects in the sidewalk.

2. CHARGE AS TO THE DUT OF A CITY TOWARDS NEGLIGENT PERSONS. In an action for injuries caused by the negligence of a city, it is not error før the court to refuse to charge the jury to the effect that the city owes no duty to persons who, thoughtlessly, whout the use of proper precaution for their own safety, expo, themselves to manifest perils, or who by the use of ordinary and reasonable care, might avoid injury to themselves.

3. EXCESSIVE DAMAGES.

Where plaintif has received an injury, and as the result of such injury, plaintiff's arm is permanently weakened so that it will not be able to lo full work again, a verdict for $1200, rendered by the jury, will not be con.idered excessive so as to went a reversal of such judgment.

HAYNES, J.

This case of the Cig of Toledo, v. Clara Higgins was prosecuted for the purpose of reversing the judgment of the court of co mon pleas.

There are three principal points made, and one is that the verdict is not sustained by sufficient evidence and is contrary to law; another is that the court refused to charge the jury certain requests that were requested; and the third is that the judgment is excessive.

The record shows that a petition was filed simply to recover from the defendant below damages for an injury that occur to the plaintiff below, Clara Higgins, by reason of a defective place in the sidewalk on Wisconsin street, into which Clar. had stepped or stumbled in the dar, on a dark night, whereby she had ceen thrown to the ground nd her arm broken and she had received severe injuries.

The testimony shows, we think, very clearly, that the injury hap pened in the manner in which the plaintiff stated in her testimony, which corroborated the statemeats of her petition.

Criticism was made as to the test may, but we see no reason to doubt that there was a piace in the sidewalk into which her feet either slipped or upon which she stumbled in passing over it, and that she was thrown and injured. She was seen to fall by two disinterested witnesses and was picked up by them lying in the condition which she has stated.

She testifies that she fell and that she went home, and the next day visited a physician, and thereupon he told her that her arm was broken and set it. It appears by the testimony that the doctor some time ar ischarged her, thinking that her arm was well; but that the arm comercea swelling about that time and continued to do so until final, some of the bones worked out, and she consulted another physician near

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