Rubber Co. v. McClurg.

operating of the mill ?" A. "Well, he said it was a dangerous machine and to be careful."

Q. "What further did he say?" A. "And not let my hands get so they would go down over, keep them at a certain point on the mill." Q. "Was there any other foreman there while you were at work." "Foreman?"

A.

Q. "Of those mills, that were there specially?" A. "A man by the name of Oberdoerster that I worked under when I commenced at night work.'

Q. "What talk did you have with him on the subject of operating the mill?" A. "Well, he told me about the same as Mr. Noonan."

Q. "Go on and tell what was said?" A. "He told me to feed the rubber in certain batches, not put my hands over where the roller turned in, and when I was cutting off, if the rubber was going to catch me, to let the knife go in if it was necessary and keep my hands off of the top of the rollers in working."

On cross-examination he said in answer to the questions:

Q. "And all three of these men, Mr. Noonan, Mr. Oberdoerster and Mr. Hazard, told you where to put your hands and where not to put them?" A. "Yes, sir."

Q. "And they all told you not to put your hands above the top of the rollers?" A. "Yes, sir.”

Q. "Calling your attention, Mr. McClurg, to your statement that Mr. Hazard, or the man with whom you worked when you first began there, that he instructed you or told you not to put your hands on top of the rolls, did he give you any reason why you should not put your hands on top of the rolls?" A. "Why, he said the rolls were turning inward that way, that they were liable to catch my hands.'

Q. "Danger of catching your hands?" A. "Yes, sir."

Q. "Now, at the time you was injured you may state to the jury what you was doing at that time, at the time you was injured?" A. "Well, I was just finishing up ready to quit, it was just before the whistle blowed a little while, and I had my last batch on finishing up; it was ragged and I wanted to make it even and nice; I picked it up and throwed it in the mill and it slid and didn't go in and went clear over the other side; I put my left hand in, and it bounded, and when it bounded it struck my wrist and arm and dragged it in before I could put it back."

That is a direct violation of his instructions; if he had followed his instructions and kept his hands above the rollers he would not have been injured. He could as easily have kept his hand out, kept it above the

Summit County.

rollers as to have kept it from going further down. Such an injury never happened before. The company was not bound to anticipate or guard against it. It is not negligence on the part of the master to fail to instruct an employe to avoid an injury which the master had no right to anticipate would happen.

It is only as to injuries that are likely to occur, not those that never did occur, that the master never heard of, that he is bound to anticipate and bound to guard his employes against. The plaintiff below clearly brought this injury on himself. The danger was obvious. He needed no instructions to keep his hands from between those rollers, and if he did he was fully warned of all the dangers, fully instructed as to how to operate the mill and avoid being caught. He disregarded his instructions, and on no principle of law or right can he recover. Wolsey v. Railway, 33 O. S. 227. The judgment of the court below will be reversed with costs, and exceptions noted.

Hale and Marvin, JJ., concur.

DAMAGES-RAILROADS-VERDICTS.

[Hamilton (1st) Circuit Court, February, 1904.]

Giffen, Jelke and Swing, JJ.

CINCINNATI CONNECTING BELT RY. V. WILLIAM BURSKI.

1. DAMAGES FROM ORDINARY OPERATION OF STEAM RAILROAD DAMNUM ABSQUE INJURIA, WHEN.

A steam railroad company which occupies its own private right of way, and has constructed thereon its road in a proper and reasonable manner, is not liable for damages naturally resulting to adjoining improved property from the noises, smoke, cinders and jarring arising from the ordinary operation of its trains. Such damages are damnum absque injuria.

2. VERDICT AND JUDGMENT MUST BE BASED ON ISSUE RAISED BY PLEADINGS. A verdict and judgment for damages based upon a cause of action not made an issue by the pleadings, and which is supported by evidence which is incidental only to the cause of action pleaded, will be reversed.

error.

ERROR to Hamilton common pleas court.

Hollister & Hollister and Walter A. DeCamp, for plaintiff in

A. H. Bode and W. W. Pease, for defendant in error. SWING, J.

William Burski and wife brought an action in the court of common pleas against the Cincinnati Connecting Belt Railroad Company for damages.

Railway v. Burski.

The gist of the action is thus set out in the petition. The Cincinnati Connecting Belt Railroad Company has constructed a railroad upon piling, a trestle very near his house, and by reason of this construction and the operating of the railroad by reason of the smoke and cinders from the engine, the danger from sparks, the noise of the trains and the jarring of the house caused by said trains, makes their home uninhabitable and untenantable, and deprives them of the comfort and enjoyment of their property.

The defendant railroad company filed an answer setting up that they had built the railroad in question on their own property and denying all other allegations.

The case went to trial and the jury rendered a verdict for $500 and judgment was rendered by the court for the amount of the verdict. This action is brought in this court to reverse this judgment.

The evidence is to the effect that the operation of the railroad has seriously damaged the property of Burski. The noise, cinders, smoke and jarring caused by the running of trains in front and near Burski's house has naturally caused great damage, and as to such damage the verdict of the jury is abundantly sustained by the evidence.

One item of the evidence that was produced at the trial was to the effect that the railroad company had constructed near Burski's residence a chute and side track, where coal was stored and dumped into wagons, and that when the coal was being dumped and the wind was blowing from that direction, coal dust was blown into and on the plaintiff's premises to such an extent as to cause great damage to plaintiff's property. This is not alleged in the petition as a ground for damages, but this evidence appears to have been incidental only to the cause as alleged in the petition, and the case does seem to have been tried on this as an issue. So that the verdict cannot be sustained on this evidence alone under the state of the pleadings and the issue as actually tried.

The second proposition of the syllabus in the case of Parrot v. Railway, 10 Ohio St. 624, 625, is as follows:

"That in respect to the noises, smoke, vapor, or other discomforts arising from the ordinary use of the railroad by the company, the occupant and owner of such lot and dwelling house has no more right to recover damages of the company than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discomforts. That a railroad authorized by law, and lawfully operated, can not be deemed a private nuisance."

Under the facts in this case which arose in 1852, there was no right of recovery from a railroad company while occupying a public street;

Hamilton County.

this principle of the law as to public streets has been changed by Sec. 3283 Rev. Stat., which was passed in 1857, but except as to streets, it is the law in Ohio today. And not only is it the law in this state, but in all the states so far as we have been able to investigate.

This principle is recognized as the law, in the case of Balt. & P. Ry. v. Fifth Baptist Church, 108 U. S. 317 [2 Sup. Ct. Rep. 719; 27 L. Ed. 739, 744], which is relied on by the defendants in error in this case. On page 331, Justice Field says:

"Undoubtedly, a railway over the public highways of the district, including the streets of the city of Washington, may be authorized by congress, and if when used with reasonable care it produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars with the noises and disturbances necessarily attending their use, no one can complain that he is incommoded. Whatever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damnun absque injuria. The private inconvenience in such case must be suffered for the public accommodation.

"But the case at bar is not of that nature. It is a case of the use by the railroad company of its property in such an unreasonable way as to disturb and annoy the plaintiff.'

In this case there is no allegation that the railroad company had constructed or has operated its road in an unreasonable way, nor is there any evidence, other than that in regard to the side track and coal chute above referred to, which tends to show an improper and unreasonable construction and operation of its road.

What Burski may be able to show under proper allegations as to the construction of this coal chute and side track near his house, we cannot say, but under the pleadings and evidence as presented in this record, we feel bound to hold that the judgment is not sustained by the evidence, and the judgment is therefore reversed and cause remanded for further proceedings.

Giffen and Jelke, JJ., concur.

Rahe v. Commissioners.

COUNTIES-ACTIONS-STATUTES.

[Cuyahoga (8th) Circuit Court, June 25, 1904.]

Hale, Marvin and Winch, JJ.

HENRY T. RAHE, ADMR. V. CUYAHOGA CO. (COMRS.)

COUNTY COMMISSIONERS LIABLE IN OFFICIAL CAPACITY FOR DAMAGES FOR WRONGFUL DEATH, WHEN.

Under favor of Secs. 845 and 6134 Rev. Stat., an action may be maintained against the county commissioners in their official capacity by an admin. istrator of one whose death is the result of the negligence of the commis- . sioners in failing to keep a county bridge in repair.

ERROR to Cuyahoga common pleas court.

Johnson & Dunlap, for plaintiff in error:

County commissioners are liable in their official capacity for damages for wrongfully causing death when the act which caused the death is such as would have entitled the party injured (if death had not ensued), to maintain an action and recover damages in respect thereof. Section 6134 Rev. Stat., which gives a right of action for wrongfully causing death, is purely remedial. Bishop, Written Law Secs. 19, 120; Tracy v. Card, 2 Ohio St. 431; 1 Chitty's Blackstone 30, 61n; Dwarris, Statutes 734, 735. Burgett v. Burgett, 1 Ohio 469; Saterlee v. Stevens, 11 Ohio 420; Hays v. Armstrong, 7 Ohio (pt. 1) 247; Ratcliff v. Teters, 27 Ohio St. 66, 86; State v. Harmon, 31 Ohio St. 250; Little Miami Ry. v. Greene Co. (Comrs.) 31 Ohio St. 338; Moore v. Given, 39 Ohio St. 661; Rex v. Banbury, 1 Ad. & Ell. 136, 142; Commonwealth v. Loring, 25 Mass. (8 Pick.) 370; Jeffersonville (Mayor) v. Weems, 5 Ind. 547; Henry v. Tilson, 17 Vt. 479; Putnam v. Langley, 28 Mass. (11 Pick.) 487, 490; Bishop, Written Law 82; Debolt v. Insurance & Tr. Co. 1 Ohio St. 563; Brigel v. Starbuck, 34 Ohio St. 280, 285; Solor Refining Co. v. Elliott, 8 Circ. Dec. 225 (15 R. 551); Sec. 23 Rev. Stat.; Pennsylvania Fire Ins. Co. v. Carnahan, 10 Circ. Dec. 225 (19 R. 97); Murphy v. Holbrook, 20 Ohio St. 137 [5 Am. Rep. 633]; Shearman & Redfield, Negligence Sec. 177; Ruck v. Williams, Hurls. & Nor. 308; Hardin Co. (Comrs.) v. Coffman, 60 Ohio St. 527 [54 N. E. Rep. 1054; 48 L. R. A. 1455]; Merkle v. Bennington Tp. 58 Mich. 156 [24 N. W. Rep. 776; 55 Am. Rep. 666].

Chas. W. Stage, county solicitor, Z. T. Armstrong and J. L. Cannon, assistant county solicitors, for defendant in error:

The statute, Sec. 6134 Rev. Stat., giving a right of action for wrongfully causing death, does not apply to a county.