Railway Company . Schneider. 4. The only other instruction requested by the defendant, which was refused, is the following: "If there were obstructions to the decedent's line of vision in the direction from which the locomotive was coming, that fact made it the more necessary that he should use other means to discover danger, and if he could not avoid danger otherwise than by stopping and listening, then it was his duty before going upon the track to stop and listen, and if his failure to do so contributed to the injury, plaintiff can not recover." Much of what has already been said is also applicable to the question raised by this request. As before remarked, persons approaching railroad crossings are bound to the reasonable use of their faculties in discovering and avoiding danger from passing trains, and to that end, it is ordinarily their duty to listen, and if necessary, stop before attempting to cross; but at crossings where gates are maintained, this may cease to be a duty, or be so only under peculiar circumstances, though the view of the track is obstructed. The placing of gates and gatemen at the crossing may have become but a prudent and proper precaution on the part of the railroad companies because of the obstructed view of the tracks, and the difficulty on the part of persons approaching in discovering danger from observation merely. At such crossings, it is the duty of the gatemen to observe the tracks, and to know when, on account of approaching trains and engines, it becomes dangerous to cross, and whenever it does, to close the gates and prevent persons from attempting it; and it is as much their duty to observe and know when the tracks are clear, and persons may cross over in safety, and when it is, to open the gates and keep them open for that purpose so long as it continues to be safe to cross, and no longer. Persons approaching such crossings have the right to presume, in the absence of knowledge to the contrary, that the gatemen are properly discharging their duty, and govern themselves accordingly, and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gatemen of their duties; and hence, when the gates are open and the gatemen present they are entitled to assume that the tracks are Railway Company v. Schneider. clear and it is safe to cross, and their failure to stop and listen before passing onto the tracks through the open gate, is not, in the absence of other circumstances, negligence which will, in case of injury to them, caused by a passing locomotive while so attempting to cross, defeat a recovery therefor. This conclusion is sustained by the case of Baker v. Pendergast, 32 Ohio St. 494, where it is held, that "a person about to cross a street of a city in which there is an ordinance against fast driving has a right to presume, in the absence of knowledge to the contrary, that others will respect and conform to such ordinance; and it is not negligence on his part to act on the presumption that he is not exposed to a danger which can only arise through a disregard of the ordinance by other persons." It is true that it is further held in that case; "that, if the person crossing the street knew that persons were driving along the street at a forbidden speed, and had full means of seeing the rate at which they were going, the existence of the ordinance would not authorize a presumption which was negatived by the evidence of his senses." The instruction requested by the defendant now under consideration assumes that the deceased (Schneider) did not see the approaching engine, and could not on account of obstructions to his "line of vision in the direction from which the locomotive was coming," and therefore, that it was his duty to use other means to discover the danger, and, if necessary, to stop and listen. In the case assumed by the instruction the presumption upon which he had a right to rely, viz.: that the gatemen were properly performing their duty, and the track was clear, was not negatived by the evidence of his senses or in any other way. 5. The last assignment of error we notice is that based upon the alleged misconduct of the plaintiff. It appears from the bill of exceptions that a drawing prepared by one of the witnesses, of an engine and the crossing, was admitted in evidence on the trial, and was taken with the papers by the jury on the submission of the case. The misconduct consisted in writing on the back of this paper by one of the plaintiff's Kaufmann e. Village of Hillsboro. counsel what is characterized by defendant's counsel as "points and suggestions." If not entirely unintelligible, they are so meagre and obscure as to render it doubtful whether any person except the one who wrote them could make any intelligent interpretation of them, or derive any significance from them. It appears that they were memoranda written while the counsel for the defendant were making their arguments to the jury, by one of the plaintiffs' counsel as points to be answered by him in the closing argument. He did not at the time know that they were being made on a paper in the case, and it appears that they were not made with any intention to have them go to the jury, and neither the plaintiff nor her counsel knew the jury had them. The delivery of the paper to the jury was attended by no wrongful conduct on the part of the plaintiff or of her attorneys, and the trial court, familiar with the progress of the trial and the conduct of the jury was better able than we, to judge whether the defendant could have been prejudiced thereby. At all events we do not regard it a matter of such consequence as to require the reversal of the judgment. Some other errors are assigned, but they are substantially disposed of by what has already been said and they need not be more particularly noticed. Judgment affirmed. KAUFMANN v. VILLAGE OF HILLSBORO. Intoxicating liquors-Dow liquor law-Section 11 construed-What is sale at retail. (Decided May 22, 1888). MOTION for leave to file petition in error to the Circuit Court of Highland County. The plaintiff in error was convicted before the mayor of Hillsboro on a complaint under oath charging him with keeping a place in said village where intoxicating liquors, to-wit, Kaufmann e. Village of Hillsboro. beer, are sold, contrary to the ordinance of said village. The ordinance was adopted under the provisions of the act known as the Dow law, authorizing town councils to prohibit the keeping of places within their limits where intoxicating liquors are sold in any quantities at retail, other than as permitted by said law. The proof was that K. sold twenty-five quarts of beer at one time to one Rhoades, put up in quart bottles; that he was not a manufacturer of it, and that it was sold to Rhoades not for any mechanical, pharmaceutical or sacramental purpose, nor upon the prescription of any physician, but was sold to him to be drank as a beverage. There was also proof that K. kept a place where he was in the habit of selling beer in such quantities; and the claim is made that such sales do not constitute a selling at retail within the meaning of the ordinance, or of the statute conferring the power to adopt it. Sloane, Gardner & Hire, for the motion. BY THE COURT: A sale, by one who is not a manufacturer, of twenty-five quarts of beer, put up in bottles of one quart cach, not upon the prescription of a physician, nor for any known mechanical, pharmaceutical or sacramental purpose, but to be drank by the person to whom sold, is a sale at retail within the meaning of the eleventh section of the act known as the Dow law; and the keeping of such place where such sales are made is a violation of the ordinance of a village prohibiting ale, beer and porter houses and other places where intoxicating liquors are sold at retail for any pupose or in any quantity, other than as permitted by the eighth section of said act. (83 Ohio L. 157). Motion overruled. Hiett v. Nebergall. HIETT v. NEBERGALL. Practice-Appeals. (Decided June 19, 1888). ERROR to the Circuit Court of Auglaize County. Ferrall & Ohler, for plaintiff in error. Brotherton & Davis, and Layton & Stueve, for defendant in error. BY THE COURT: An appeal will lie from an order of a probate court overruling a motion of an imbecilə ward to terminate the guardianship upon the grounds (1) that letters of guardianship were in the first instance improperly issued, and (2) that if he was an imbecile at the time such letters were issued he has since been fully restored to reason. Judgment affirmed. |