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Cuyahoga Common Pleas.

court would be inclined to take a different view of it. I have no doubt but this wife was sorely affected by the arrest and indictment of her husband, and that fear and apprehension for his safety filled her heart. But can the court say that this was caused by the act of the bank, or by the fact of his guilt and possible imprisonment, such as would naturally follow with any wife who loved her husband? Too much time elapsed between the interview, claimed to have accomplished this duress, and the delivery of this deed to warrant the court in giving it the effect claimed. In all the cases cited by learned counsel we find no such interval of time elapsing between the duress and the execution of the contract. Then, too, there are certain inferences which a court cannot help drawing from the fact of the two years delay in beginning this suit.

We have no word of testimony in regard to it, no word of explanation. It is hardly necessary, however, to comment upon this. These being my views upon the testimony and the law of the case, and regardless of any sympathy the court may have, as an individual, for this woman, I sustain the motion to dismiss.

To which findings and decision the plaintiff excepted.

And thereupon before judgment the plaintiff filed her motion for a new trial in this case, upon the following grounds, namely:

1. That the court erred in denying the application of the plaintiff for a new trial, and in refusing to allow the plaintiff to have a trial by jury in this case, and in deciding that the same should be tried to the court, and in trying the same by the court without a jury, to which decision and trial by the court the plaintiff excepted.

2. That the court erred in holding and deciding, against the objection of the plaintiff that, upon the motion made by the defendant to dismiss this case on the alleged ground that the evidence introduced by the plaintiff in the case did not allow any right of recovery in favor of the plaintiff, such motion involved a hearing and determination by the court as to the weight and sufficiency of the evidence to sustain the claim set forth by the plaintiff in her petition-and not merely whether the evidence tended to support such cause of action. To which decision the plaintiff excepted.

3. That the court erred in holding and deciding, against the objectión of the plaintiff, that, upon such motion so construed by the court, the defendant and not the plaintiff was entitled to the opening and closing argument. To which decision the plaintiff excepted.

4. That the court erred in deciding such motion on the weight and sufficiency of the evidence introduced by the plaintiff, and not merely on, or as to what, the evidence tended to show as to the case made in the petition. To which decision the plaintiff excepted.

5. That the court erred in deciding the case upon its merits under such motion. To which decision the plaintiff excepted.

Wheelock v. Bank, 6. That the finding and decision of the court is not sustained by sufficient evidence, and is contrary to the evidence in the case.

7. That the decision of the court is contrary to the law of the case.

8. That the finding and decision of the court is contrary to the evidence and law of the case.

To all of which findings and decisions in the sixth, seventh and eighth clauses on his motion the plaintiff also excepted.

NEGLIGENCE-STREET RAILWAYS.

[Summit Common Pleas, December Term, 1891.)

*DUSSEL V. AKRON STREET RAILROAD Co. 1. STREET RAILWAY PASSENGER— PRESUMPTION AS TO CARE.

A passenger on a street car, in the absence of knowledge to the contrary,

and acting in good faith, is entitled to presume that a street railway company will not be negligent in the performance of its whole duty, and will not expose such passenger to any hazard that reasonable care and pru.

dence could fairly guard against. 2. RULE AS TO STOPPING CARS.

A street car should be stopped long enough to allow a passenger thereon to

alight in safety. 3. ORDINANCE AS TO ASSISTING PASSENGERS TO ALIGHT.

An ordinance of a city making it the duty of conductors of street cars to

assist passengers to alight, may be considered by the jury in determining what actual assistance should have been given beyond stopping the cars

for a reasonable time. 4. PROXIMATE CAUSE DEFINED.

"Proximate cause" is a cause from which a man of ordinary experience and

sagacity would foresee that the result would follow, that the injury was of such a character as might reasonably have been foreseen or expected

as the natural and ordinary result of the negligence complained of. 5. RULE AS TO CARE AND SKILL REQUIRED.

The law requires the utmost care and skill which prudent men are accus

tomed to use inder similar circumstances, but the rule is not to be pressed to an extent which would make the conduct of a business so expensive,

as to be wholly impracticable. 6. PLEADING-CONTRIBUTORY NEGLIGENCE--NEGATIVE AVERMENT.

In an action for personal injuries caused by the negligence of defendant, it

is not necessary for plaintiff to allege that the injury was caused without negligence on her part, but having pleaded, and issues having been taken thereon, the defendant is entitled to the benefit of the defense of contributory negligence, the same as if affirmatively alleged in

the answer. 7. CHARGE TO JURY-INSTRUCTION AS TO DISAGREEMENT.

A jury in an action for personal injuries may well remember that if they

disagree that the contention must be settled finally by a jury of twelve men no better qualified to try the issues of fact and upon no better presentation

of the case. 8. SAME-RULE AS TO DISAGREEMENT.

A disagreement should not be had when an agreement can be reasonably

secured by an impartial, candid and fair concurrence of the individual

judgment of each juror.

*The judgment in this case was affirmed by the circuit court, April term, 1892, and by the Supreme Court, 52 Ohio St., 648, un reported.

Summit Common Pleas.

9. SAME-INSTRUCTION AS TO FINDINGS.

Both parties are entitled to the independent and best judgment of each

juror, therefore it is the duty of a juror not to yield a well grounded con.

viction because it does not accord with the convictions of his fellow jurors. 10. SAME--INSTRUCTIONS AS TO FINDINGS.

Experience shows that the candid, impartial judgment of ten or eleven in

telligent men is a safer guide than of one or two equally candid, intelligent and impartial men. Therefore, while one or more men may be right in their convictions, it is safer for them to consider well the sources of their convictions before they finally decide against an agreement.

1

This suit was originally brought by Lida M. Dussel against the Akron Street Railroad Company to recover for a personal injury alleged to have been received by her at the hands of defendant in the following manner, to-wit :

The claim is that on or about October 2, 1889, she was a psasenger on one of the cars of the defendant company, and that she undertook to leave said car at the corner of Market and Main streets in the city of Akron, and that, before she had left the car, the same was started, and she was thrown to the ground, and received the injury complained of. The defendant denies substantially everything in the petition, except that the defendant is a corporation.

Charge to the Jury. VORIS, J.

The trial of a civil action conducted with dignity, intelligence and good judgment, and I am happy to say that as far as counsel are concerned this has been such, and consummated by the impartial, conscientious and intelligent finding of a jury constitutes the performance of a public service of the highest character. The court knows of no more important public duty than you are now engaged in. You constitute an indispensable part of the court whose offices are just as important and dignified as those of the judge presiding. The courts thus constituted are the supreme power that finally determines all litigated contentions ; and to whose power all the people and every public officer of the state must yield.

Hence you see that the people justly take a deep interest in the determination of jury trials. Public confidence is strengthened or shaken as juries discharge intelligently or loosely their duties. I make these suggestions because I want to impress upon you that the final duty you are about to perform is one of very great importance, one that deeply concerns the public welfare as well as the litigating parties.

You have been carefully selected from the citizens of the county because of your special fitness and qualification to discharge these important duties.

It is fair to say that the experience of mankind goes to show that the candid, impartial judgment of ten or eleven intelligent men is a safer

Dussel v. Street Railroad Co.

guide than that of one or two equally candid, intelligent and impartial men; and while one or two men may be right in their convictions yet it is saler !or them to consider well the sources of their convictions before they finally decide against an agreement. Yet every juror should feel that it is his duty not to yield a well grounded conviction, because it does not accord with the convictions of his fellow jurors. Both parties to this action are entitled to the independent and best judgment of each juror.

A disagreement should not be had when an agreement can be reasonably secured by an impartial, candid and fair concurrence of the individual judgment of each juror.

You may well remember that if this jury disagree, that this contention must be settled finally by a jury of twelve men, in no respect better qualified to try the issues of fact than you are, and upon no better presentation of the case to them.

Honest, candid, independent discussion leads to truth, heated controversy to disagreement.

I will now read the pleadings to better enable you to remember the boundaries of the case. Which were thereupon read.

The effect of which answer except as to the admitted matter, which is to be taken by you as true, is, to cast upon the plaintiff the burden of maintaining all the other allegations of her petition by a preponderance of the evidence. That is, she must maintain by a preponderance of the evidence the acts of negligence alleged in the petition to have been committed by the defendant; that she was so injured thereby; and the other grounds upon which she asked to be compensated, before she is entitled to recover.

We hold that it was not necessary for the plaintiff to allege in her petition "that said injury to the plaintiff was caused without negligence on hei part;" but having been pleaded and isslie taken thereon, though the defense of contributory negligence is not affirmatively set up in desensiant's answer, we think that under the state of the pleadings, that the question of contributory negligence on part of the plaintiff may be suhmitted to the jury as part of the case to be determined by you.

The court will now define what we mean by negligence that will support an action. It must consist in some act or omission of duty that in the natural and ordinary course of events is the immediate cause of an injury to another, and resulting in some substantial damage. It is also defined as being the want of ordinary care, and may consist in doing something which ought not to be done, or in not doing something which ought to be done. By ordinary care, we mean that degree of care which persons of ordinary care and prudence are accustomed to use and employ, under the same or similar circumstances, in order to conduct the enterprise in which they are engaged in a safe and successful

Summit Common Pleas.

termination, having due regard to the rights of others, and the objects to be accomplished. Ordinary care required by the rule, has not only an absolute, but also a relative signification. It is such care as prudent persons are accustomed to exercise, under the peculiar circumstances of each case. If called into exercise under circumstances of peculiar peril, a greater amount of care is required than where the circumstances are less perilous; because prudent and careful persons, having in view the object to be obtained, and the just rights of others, are in such cases, accustomed to exercise more care than in cases less perilous. The amount of care is indeed increased, but the standard is still the same. It is still nothing more than ordinary care under the circumstances of that particular case. The circumstances, then, are to be regarded in determining whether ordinary care has been exercised.

The want of proper care is the want of that care which a reasonable man, guided by those considerations which should regulate conduct of human affairs, would have exercised under the circumstances of that particular case, the failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance which the circumstances justly demand.

There is no presumption of negligence as against either party to this suit, except such as arises from the facts proven. Indeed, the presumption of law is, that neither party was guilty of negligence, and such presumption must prevail until overcome by the evidence submitted to you.

Intent is not an element of legal negligence; therefore the plaintiff need not show that the injury was intentional.

The negligence complained of, in order to enable the plaintiff to recover, must be the proximate cause of the injury. I mean by "prox. imate cause,” a cause from which a man of ordinary experience and sagacity would foresee that the result would follow; that the injury was of such a character as might reasonably have been foreseen or expected as the natural and ordinary result of the negligence complained of. The injury must have been the direct and not the remote result thereof. In this sense you will inquire into the evidence to determine whether the defendant was guilty of the negligence with which it is charged.

In the light of the evidence, how do you find the facts alleged in plaintiff's petition to be?

Did the plaintiff become a passenger on the car of the defendant on or about October 2, 1889?

Was she thrown violently to the ground while in the act of leaving the car, by the starting of the car without notice or warning?

Was she thereby greatly injured ?

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