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the same rights in all respects. He is subject to you find that that school was sufficiently near the same obligations, duties and liabilities, and home that it was well appointed, well provided that right has been secured by the amendments with teachers, reasonably accessible, the court to the Constitution. This was a public school, and instructs you that this defendant would not be whether this negro, the father of the boy that guilty ; but if on the other hand you find the rewas excluded, pay much or little tax, he is bound verse, then the court instructs you that he had to contribute to the support and maintenance a right to enter this white school. of that public school; and doing that, he has a Now, there must be an intent. I told you at right to have his children educated at the pub- the outset there must be an intent to constitute lic expense in the same way and to the same ex- a crime. But the position of counsel might mistent that white children are educated, no more lead you. The intent necessary to constitute and no less. The Legislature of Ohio has au- this crime is: Did the defendant intend to exthorized the establishment of public schools ; clude him from the school ? That is the intent? that is to say, they have authorized the classifi- Did he intend to do that? The fact that he cation of these school children, and have author- supposed at the time that he had a legal right ized the neg.oes to be educated separately, in one to do it, the fact that he did not know what the school, separately from the white children, and courts would hold, how they would construe this the white children separately from the negro. matter, or, in other words, the fact that he did Now, that is no wrong to the negro. The legis- not understand the law of the case, is not an lature has a right to do that. If you find upon

If he intended to do the acts which in the facts of this case that such school had been law constitute the offense, then that is the only provided, which afforded like facilities as the intention which the law demands in order to one to which he went and claimed admission, a conviction. Counsel said in his remarks to reasonably accessible to him, not exactly-Í the jury that now, ever since the decision which don't put it upon the ground of exactly as acces- was made in the civil suit between these parties, ble, but if the colored school was established in tried before me here some time ago, that if the good faith, supplied with a competent teacher, teacher was to exclude the colored boy under the corresponding in a reasonable degree with the same circumstances, he would be guilty. Genqualifications of the white teachers of the coun- tlemen, the statutes of Congress don't change actry, and reasonably accessible to this negro, it . cording to the decisions of courts. It is a new was his duty to have gone to the colored school, idea that the law is one way until the court and if he refused to go there, and claimed admis- makes a decision in reference to a matter of this sion into the white school and was excluded he sort, and then becomes another way after the dehas nothing in law to complain of. But if, as has cision is made-that is, that the statute has a been contended, and this is the question of fact different and more rigid effect now, since the dethat has not been discussed—at least it has only cision made six months ago, than it had before been alluded to—if you find as a matter of fact, this decision was made. If it was possible to and that is the fact that you will pass upon, that give it such a construction, and there is no authie colored school was so remote-too remote for thority for it, that construction alone would in the child of this black man to attend, without legal effect abolish the amendment to the Conoppression, and without going over unreasonable stitution. The law of the case would depend not and unusual distances; that the School Board or upon a judicial construction to be made by the Trustees of the District-Trustees, whoever they judges, but it would be made to depend upon the may be, whose duty it was to provide these opinion which the parties themselves might enschools, 'had placed this negro at a disadvantage tertain of the law, and one man who understood

a with his white neighbor-material disadvant- it correctly would be guilty of a crime, whereas age-had required of him, in order to get his ed- another man who did not understand it, but do ucation, more than they had required of others; ing the same thing, would be innocent. Now, to travel over this greater distance, which was that ain't the law! The law assumes that every unusual, they had not provided for him the same one knows what the law is and is bound at his accommodation, the same facilities, the same con- own peril, in criminal and in civil cases, to know veniencies, or something approximating them, what the law is. It is true they don't all know

, that he could obtain in his home school, If I may it, but they are all bound to know it. The law so term it, the school nearer to him, then, and prescribes the rule, publishes it, sends it forth to in that event he had a right to go to this white the country, and they are bound to take cognischool; for if the law is not enforced in that zance of the law, and it is not a flexible thing, way, you will see at once that by this claim of that is one way to-day, and is another way six right to classify or send the negro to one place months afterwards, because the court may hapand the white man to another, or provide accom- pen to have given a different construction. The modations or educational facilities for the white counsel admits to you that my instructions in man that you don't give to the ne, ro, the inequali- the other case were correct, and I think they ities and the injustice and the 'rong that are were correct, and they are exactly the instrucinflicted upon the negro, and the violation of tions that I give you here now. If they were that constitutional amendment which was in- correct, it was because I construed the law as tended to give him protection. Now that is the Congress intended it to be construed, as it should question of fact that you are to determine, and if have been construed, as it ought to be administered, not as to what it shall be in the future, would do that. The court can not go beyond but what it has been in the past, been so since that in any case ; but the court is not bound to the time of the enactment.

do that; it is bound to exercise its own Well, another position is assumed, that this judgmént in a particular case. It may fine as defendant consulted counsel, and counsel advised | low as a penny, or imprisonment for twenty him that the law was different from what minutes, or either one. It is a matter within this court instructs you that it is. Well, gentle- the discretion of the court. There is no minimen, the legal fraternity to which I have be- mum of punishment, but there is a maximum, longed for forty-one years contains a good many beyond which the court can not go; and we are, sensible and good useful inen; contains a great gentlemen, all under obligations to avoid, as far many men competent to advise, and honest as possible, anything like personal feeling, any enough to give correct counsel ; but then it con- personal interest. We are under oath both the tains a great many more charlatans, superficial | court and jury, to administer the law just as we lawyers, honest or dishonest, as the case may be, find it. The court is to determine the law and and I think I may say that my observations in the jury is to pass upon the fact. courts for forty-one years leads me to believe that Now the issue, and the only issue,is, whether this at least one half of the litigation that we are colored school that had been provided, and which troubled with in the courts, arises from the mis- the statute had authority to provide, was reasonadvice of counsel. Nevertheless the law, in its ably accessible, and gave to this boy the same tenderness, in some respects gives force and ef- facilities, educational facilities that he could fect to the advice of counsel. If A has B arrested have obtained at the other, or something apupon the charge of larceny, and B is tried and proaching it. If it did, then this defendant is acquitted, and B then sues A for what is termed not guilty; if it did not, then the court instructs a malicious prosecution, that is for prosecuting you that, upon your finding that fact, he would him when he was innocent, and without suffi- be guilty as he is charged in the indictment. cient probable cause to justify the prosecution, Take the case gentlemen. A, the defendant in that civil suit, may show in The jury disagreed, and were discharged. his defense that he acted upon sufficient cause Channing Richards, for the Governmen'. and in good faith, and in an action of that kind, if

John Johnston and H. J. Buntin, for defendA can show that he made a fair presentation of his case to an attorney in good standing, and

ant. that counsel advised him that it was sufficient ground for prosecution, and that he thereupon, RAILROAD COMPANY--DAMAGES—- EMacting in good faith upon the advice of counsel,

PLOYE-REASONABLE OR UNREAinstituted the prosecution, why, that would be a

good defense. But that has not been carried into
the criminal law. We don't seem to need it now.

We don't seem to need defenses of that kind.
They have got plenty of other defenses available.
But if it became necessary, a man might defend


COMPANY for murder, or assault and battery, or anything else, for I fancy that any one evilly inclined,

GEORGE HENDERSON. could find in Cincinnati or anywhere else in this broad country, some man to advise him to do whatever he wanted to do.

February 28, 1882. That is the rule which some counsel act upon. They generally

1. Where the superintendent of a railroad company find out what a man wants to be advised, and

has made an order as to the management of a particular

train, which order will be reasonable or unreasonable acthen they advise him; and he is the man that

cording to the circumstances under which it is to be enpleases him. Now, it may be that this defend- forced, the question whether in any particular case such ant, and I expect he did, advised with counsel,

order is to be deemed reasonable or unreasonable is a.

question of mixed law and fact, to be determined by the and I expect his counsel instructed him that he jury under proper instructions. had a right to exclude this negro from the school, 2. Whero an action is brought against a railroad comand I take it, am willing to concede, that he

pany by one of its employes to recover damages for peracted in the matter in the utmost good faith;

sonal injuries sustained by the enforcement of an order

made by the superintendent of the company as to the that he thought he was doing what he had a management of a particular train, which order was unright to do; but the court charges you, gentle

reasonable and the enforcement of the same was dangermen, that notwithstanding all of that, if he did

ous to such employe, the fact that the negligence of a fel

low servant of the injured person, while executing such what the act of Congress forbids him to do, and order, contributed in producing the injury, affords no did it under color of authority, and because this

defense to the action. boy was a colored boy, that it would be no ex- Error to the District Court of Harrison cuse; he would still be guilty. It would be a County. matter to address itself very strongly to the Henderson brought suit in the Court of Comconsideration of the court. The punishment mon Pleas of Harrison County against the Pittsprescribed by the statute is that the.court may burgh, Cincinnati & St. Louis Railway Com

. inflict a thousand dollars fine and twelve months pany. He was a laborer in the employ of the imprisonment; and in a proper case this court company upon a construction train which was.


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on the main track of the railroad, in a deep freight trains, by sending back a flagman to norock cut, upon a heavy curve in the road. While tify approaching trains. I give special orders to he and the other laborers were at work loading construction trains where to work, and direct the train with gravel, a freight train which was them by special orders from time to time, by tel. on its regular time was run into the construction egrain or otherwise." train without warning of any sort, and by the Lowen was boss of the laborers employed on the wreck which resulted from the collision, Hen- construction train. He hired and discharged derson was driven against the rocks, two or three the men and regulated the time and manner of of his ribs were broken, his shoulder was dislo-working. He had authority to require that the cated, and he was permanently injured. The tra

train should be moved, as he might direct, with

reference to the work, but it was no part of his injuries, and in the court of common pleas there duty to observe the time of approaching trains, was a verdict and judgment in his favor for that matter being confided exclusively to the $3,000, which judgment was affirmed in the dis- conductor. He was in the caboose until the trict court, and this petition in error was filed to | freight train was ithin a few feet of the conreverse the original judgment as well as the struction train, and barely escaped serious injudgment of affirmance. The record contains all jury, but several persons beside Henderson were the evidence.

injured. Construction trains have no place on the În the amended petition the negligence of the schedule or time table, and by the printed rules superintendent, "boss," and the conductor of the of the company it is required that they shall be construction train, is stated, and the answer is a a kept out of the way of all regular trains, freight denial. as well as passenger, clearing their time at least ten minutes, and it is the duty of the conductor

J. Dunbar, for plaintiff in error. of the construction train to observe the time of The duty implied as incident to the employall trains and obey the rule. This rule, how- ment, and the question whether the special order ever, may be suspended as to freight trains by was reasonable, were questions of law. 5 Ohio special order of the superintendent of the rail- St. 567; 43 I11. 421. The exception to the charge

. road company, whenever he sees fit to do so, in

was sufficient. 10 Ohio St. 226; 29 Ohio St. 452: which case it is the duty of the conductor of the

32 Ohio St. 415. construction train, where such train is being

J. M. Estep, for defendant in error. loaded on the main track, to keep the train in its place and send a man with a proper signal to

Negligence is for the jury. 8 Ohio St. 580; notify approaching freight trains.

13 Ohio St. 66; 23 Ohio St. 10; 24 Ohio St. 639, In this instance the superintendent had made

668; 28 Ohio St. 23; 31 Ohio St. 480; 32 Ohio such special order, and the conductor of the con

St. 66; 35 N. Y. 10, 58 N. Y. 455; 77 N. Y. 72; struction train, keeping his train on the track,

Shearman & R. on Neg. $ 11. Rules must be had sent a flagman to notify the approaching Ohio St. 226; Negligence complained of is negli

reasonable. Shearman & R. on Neg. $ 93; 36 freight train; but the Hagman performed his duty so negligently and improperly that the en

gence of Company. Shearman & R. on Neg. $ gineer of the freight train understood his acts as

89: 33 Ohio St. 468; 73 N. Y. 40; 31 N. Y. 206; an order to go ahead and not stop. The engineer

42 Md. 117, 136; 6 Bing. 716. Employe takes says the flagman stood several yards from the

no risk of negligence of company. 16.; 3 Ohio railroad track, holding the flag down at his side

St. 201; 31 Ohio St. 287; 17 Ohio St. 197; 36 with one hand and making motion with the

Ohio St. 221; Shearman & R. on Neg. $ 85, 10, other as for a forward movement. In this

89; 73 N. Y. 40; 53 N. Y. 553. Exceptions to

way the injury was occasioned, without any negli charge in gross and hence insufficient. 25 Ohio gence on the part of the plaintiff. It would have

St. 584; 30 Ohio St. 105; 32 Ohio St. 77; 21

Wall. 158. taken six minutes to move the construction train to a side track from the place where it stood on

OKEY, C. J. the main track.

Where a servant sustains injury by the negliBarrett was superintendent of the company. gence of his master, the master is liable in an acHë testified: “There are general printed rules tion by the servant for damages. A breach of for all trains, made in order to promote the safety duty by the master is not one of the risks which of persons and property. I establish these one assumes in entering upon the employment printed rules. I am the superior officer for that of another. This breach of duty may consist in purpose on this division. I give special orders employing other servants who are incompetent, and private instructions, as I think necessary, in providing unsafe machinery and structures, to annul or disregard the general rules. *

in failing to notify the servant of peculiar danThey are not printed. *

* * * Construction gers known to himself but not to the servant, or trains cannot occupy the main track without in needlessly placing the servant in a place of special instructions. It is the duty of the con- danger. ductors of construction trains to protect their As corporations act only through agents, it trains. I gave special order, which annulled the sometimes becomes important to determine what general rule as to construction trains, allowing persons stand in such relation to it as that their them to stand on the track until the arrival of negligence shall be deemed the negligence of the


corporation, or, as sometimes expressed, who is SUBTERRANEAN RIGHTS OF WAY.
to be regarded as merely a servant of the corpo-
ration, and who is in legal effect the master.

Upon this subject the cases are by no means in
harmony (Pierce on Rail. (ed. of 1881), 367;

S. W. POMEROY Thompson on Neg. Ch. XX. ; 11 Reporter, 42, 207, 591; 21 Am. L. Reg. 76] ; but it is unneces

BUCKEYE SALT COMPANY. sary to enter upon any extended examination of them. No noubt can be entertained that one

Feb. 28, 1882. standing in the relation to the company sus

1. The general rules of law which govern the rights tained by Barrett, being the superintendent of

and obligations of the owners of dominant and servient

estates, apply as well to subterranean rights of way as to the company, and clothed with power, at his those upon the surface. own discretion, to make and suspend rules to 2. The owner of coal lands, through which another regulate the running of all the trains on the

has a right of way, by subterranean entry, to reach coal road, is to be regarded, in a case of this sort, as

mines in an adjoining tract, may lawfully construct an

entry crossing such right of way, provided; it be done in legal effect the master. And where one soin le- without destroying or substantially interfering with the

use thereof. gal effect master, makes a special order with respect to the management of a particular train,

Error to the District Court of Meigs County. which is, under the circumstances, unreasonable, E. A. Guthrie, for plaintiff in error. and by the excution of such order a servant of the corporation, himself without fault, is in

John Cartwright and Grosvenor & Vorhes, for jured, it will be no answer to the action of the

defendant in error. injured party against the corporation to say, that LONGWORTH, J. the immediate cause of the injury was the negli- In the year 1869 Valentine B. Horton and gence of a fellow servant of such injured party Charles W. Dabney owned in fee a tract of land in the execution of the unreasonable order. containing 43 acres, rectangular in shape, near Chicago etc. R. Co. v. McLallen, 84 Ill. 109; Chi- the Ohio River, in the city of Pomeroy. This cago, etc. R Co. v. Moranda, 93 Ill. 302; Houghtract fronted south wardly toward the river and v. Railway Co. 100 U. S. 213; Fuller v. Jewett, on the north adjoined a 300 acre tract of coal 80 N. Y. 46; Smith p. Oxford'Iron Co. 42 N.J. L land afterwards purchased by the plaintiff in er467; Ohio & M. R. Co. v. Collarn, 73 Ind. 261 ; ror. They also owned a coal landing, or platform, Patterson v. Pittsburgh, etc. R. Co. 76 Pa. St. known as the “Goulding Platform," adjoining 389 ; Cumberland, etc. Ř. Co. v. The State, 44 this 43 acre tract at its southeast corner,

The Md. 283; Ford v. Fitchburg etc. R. Co. 110 Mass. furnace of the Buckeye Salt Co., defendant in 240; Berea Stone Co. v. Kraft, 31 Ohio St. 287; error, was near the south west corner of the tract. Lake Shore, etc. R. Co. v. Lavalley, 36 Ohio St. Under the surface of this land extended a vein 221.

of coal, outcropping across the northeast corner Whether a rule of a railroad company is and along the cliffs of the south front. A long or is not a reasonable rule, is in many cases a disused entry, or passage way, extended from the question of law; but in this case it cannot be af- Goulding platform through the coal vein northfirmed as a matter of law that the special order wardly to certain deserted workings, or coal made by superintendent Barrett was reasonable. veins, in the northeasterly portion of the tract On the contiary, whether such order was rea- These workings had caved in and the entry had sonable or unreasonable was a question of mixed become partially or entirely filled up, so as to law and fact proper for the determination of the be impassible unless cleared. jury, in view of the circumstances under which In the year mentioned Horton and Dabney the order was to be executed, and upon proper conveyed to defendant this tract in fee; the instructions as to the law. The jury found that deed, however, containing this reservation : the order was unreasonable, under the circum- “Saving and excepting a right of way from stances, and we are not prepared to say that the what is known as the Goulding platform, on lots finding was wrong.

numbered 279, 280, 281, and contiguous lots, by Objection is made that the court permitted the an entry to the north and east sides of the tract petition to be admended after the evidence was hereby granted, and the right to make such closed, and also permitted the jury, after the ver- ways and roads and keep them in repair, for the dict was announced, to retire for the purpose of transportation of coal and salt, as may be correcting it. But these matters rested in the deemed necessary and expedient by the grantdiscretion of the court, which seems to have been ors, their heirs and assigns." exercised in furtherance of justice. And as to Pomeroy, having become the owner of the 300 the request to charge and the charge given to acre tract on the north, purchased from Horton the jury, the exception was general and not spe- and the heirs of Dabney, the Goulding platform, cific, and, looking to the whole record, we can- together with the rights of way so secured by not say the action of the court was so prejudic- them, for the purpose of obtaining an entrance ial to the company, in any respect, as to afford to the coal veins in his 300 acre tract. ground of reversal.

Beginning at the platform he opened and Judgment affirmed.

cleared the old entry half way across the tract, [This case will appear in 37 O. S.

until he came to the deserted workings. From

this point the evidence shows it to have been dence that such a course was not reasonable or impracticable to proceed further to the north, practicable, and it does not appear that Pomeroy the standing coal necessary to support the pas- went any further to the west than was absolutely sage way having been exhausted. Near this necessary to find standing coal sufficient to suppoint, however, was discovered another deserted port his entry. This we think, under the terms entry running west. This entry he cleared and of the reservation, he had a right to do. Had followed to the centre of the tract, the first point we any doubt upon this subject, however, such where he found standing coal sufficient to sup: doubt would be set at rest by considering the port a new entry. Through this standing coal subsequent action of the parties. he drove a new entry and windway for ventila- It seems to have been conceded by Pomeroy tion due north into his own land.

that the coal taken from his new entry belonged The defendant purchased the 43 acre tract for not to him but to the Salt Co., and he therefore the purpose of mining coal therein, to use in its proposed to pay the company at the rate of salt furnace. For this purpose it had driven an three quarters of a cent per bushel, measured in entry and windway northwardly through the the solid, for all coal so taken out by him. This western portion of its land to a point about proposition, by its terms referred only to coal three-fourths of the way across the tract. taken from the solid vein and not to such loose Thence it proposes to drive its entry at right coal as might be found in clearing up the old angles eastwardly through and across the entry entries or in the deserted workings. The propo of plaintiff, and at the same level, for the avowed sition was, by a vote of defendant's directors, purpose of reaching, the remaining coal in the formally accepted on the 24th of April, 1874, and an northeast portion of its tract, and possibly with agreement in writing was entered into four days the further object of obtaining coal from lands later, which, after reciting the conveyance from lying to the east of the same.

Horton and the heirs of Dabney to Pomeroy, To prevent this action the plaintiff brought reads as follows: guit in the Common Pleas Court of Meigs County, And whereas, in the prosecution of the right praying for an injunction to prevent defendant so

80 acquired, the said Samuel Wyllys Pomeroy, from "penetrating and breaking the walls of said in driving his entry, passes through coal which way and entry and from crossing the way and he concedes is the property of the Buckeye Salt entry of plaintiff.”

Company: now, therefore, the said company The case was fully tried on appeal in the dis- agrees to receive, as full compensation therefor, trict court and the petition was dismissed. This and the said Samuel Wyllys Pomeroy to pay, to decision we are now called upon to review. the said company, for the coal removed by him

The defendant maintains that it has the right in the prosecution w his said right of way, a to cross the plaintiff's entry and windway for royalty of three-fourths of a cent a bushel. several reasons which we shall now consider: "It is also mutually agreed by the said parties

1. It is urged that the right reserved by Hor- that the coal so removed shall be estimated by ton and Dabney in their deed to the defendant measurement of the space occupied by the same was not assignable, and Boatman v. Lasley, 23 before removal, by competent mining engineers, Ohio St. 614, is relied on. In that case this who shall make due allowance for customary court decided that a right of way in gross is a waste in niining, slack, ete., on which no royalty right personal to the grantee and cannot be is accustomed to be paid.”. made assignable or inheritable by any words in The evidence shows that Pomeroy paid roythe deed by which it is granted. This is undoubt alty from time to time, on all the coal taken out edly the law. In the case at bar, however, the by him in driving his entry and windway right of way was not in gross, but was appurtenant through the standing coal according to the terms to the land known as the Goulding platform, of this contract; and that all this coal as taken the conveyance of which to Pomeroy, together out was purchased from him by the Salt Co. with the right of way appurtenant thereto, was Under this state of facts we do not think that effectual to

defendant is in a position to question plaintiff's 2. Defendant insists that, by the terms of the right to locate his entry as he did. deed from Horton and Dabney, nothing more 3. Under this state of facts the question ariswas reserved than a right to an entry extending ing for decision is, whether defendant has the from the platform in a direction due north, right to cross the plaintiff's entry, at the same along the easterly side of the tract; and that, level, by an entry of its own. It is clear from by going west to the centre of the tract and the facts proved that to cross at any other level there driving, his entry north, the plaintiff above or underneath plaintif's entry would be has exceeded the right granted him and has cut impossible. off the defendant's approach to its coal fields in We do not think that there exists any diffithe northeast quarter of its land, unless it is per. culty in ascertaining the principles of law which mitted to cross his entry. We are not prepared govern the case. It having been established to say that in driving his entry as he did Pome that Pomeroy has a right to the use of his entry roy was a trespasser. Although doubtless it was as located and constructed, it is clear that depossible to extend the entry due north through fendant should not be permitted to do any act the deserted mines to the north and east sides whereby such right will be destroyed or subof the tract, yet it clearly appears from the evi- stantially interfered with. It is also clear that

pass title.

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