Cincinnati St. R. Co. v. Wright
| Decision Date | 25 February 1896 |
| Citation | 43 N.E. 688,54 Ohio St. 181 |
| Parties | CINCINNATI ST. RY. CO. v. WRIGHT. |
| Court | Ohio Supreme Court |
Error to circuit court, Hamilton county.
Action by William W. Wright against the Cincinnati Street-Railway Company, in the superior court. This action was brought to recover damages sustained by reason of the death of his intestate, which death, he alleged, was caused by the negligence of plaintiff in error. The case was tried to a jury, and resulted in a verdict and judgment in favor of plaintiff in error, defendant below. Proceedings in error were instituted in the circuit court of Hamilton county where the judgment was reversed, and a new trial ordered in the superior court, on the ground that the latter court had erred in giving to the jury certain instructions requested by the defendant below, and in refusing to instruct the jury as requested by the plaintiff below; whereupon the cause was brought to this court by the street-railway company to obtain a reversal of the judgment of the circuit court. Affirmed.
One who, uninvited or without the knowledge of the driver of a private vehicle, gets upon such vehicle for the purpose of riding, and rides thereon, does not thereby assume the relation of master or superior towards such driver; and therefore he is not chargeable with the negligence of the driver in driving or managing such vehicle.
Syllabus by the Court
1. Where, during the trial of a civil action, exceptions are taken to a ruling of the court in respect to its charge to the jury, and such ruling is afterwards embodied in a motion for a new trial, which is overruled, the time (Rev. St. § 5301; 90 Ohio Laws, 203) within which a bill of exceptions may be taken, setting forth such action of the court, should be computed from the date when the motion for a new trial was overruled.
2. In the absence of evidence on the subject, a child or youth of any given age should be held to that degree of intelligence common to persons of his age. The circumstance that a boy of about the age of 14 years is accustomed to perform labor earn wages, and go to and from his work along the streets of a populous city, unattended, raises no presumption that he is more intelligent, or has greater capacity to discern and avoid danger, not connected with his occupation, than is common to other boys of the same age.
3. Contributory negligence, to defeat a recovery for injuries received on account of the negligence of another, should consist of some act or omission of the party himself, or of some third person to whom such party bore the relation of master or superior. One who, uninvited or without the knowledge of the driver of a private vehicle, gets upon such vehicle for the purpose of riding, and rides thereon, does not thereby assume the relation of master or superior towards such driver; and therefore he is not chargeable with the negligence of the driver in driving or managing such vehicle.
Paxton, Warrington & Boutet and Kittredge & Wilby, for defendant in error.
John W. Wolf and Thos. L. Michie, for plaintiff in error.
The circuit court reversed the judgment of the superior court upon the ground that the latter court erred in instructing the jury as requested by the street railway company, and in refusing to give certain instructions asked to be given by the administrator, plaintiff in that court. The plaintiff in error contends that the bill of exceptions taken to the rulings of the superior court was not perfected within the time prescribed by statute, and therefore, not being warranted by law, was inoperative, and gave no jurisdiction to the circuit court to hear the questions upon which it reversed the judgment of the superior court. It is conceded that this objection was not made in the circuit court, and for that reason contention is made that this court should not listen to it now. The general rule, doubtless, is for this court to disregard questions not made in the court whose judgment is under review. However, if the court whose judgment is under consideration was without jurisdiction over the subject-matter in contention, the rule does not apply and that question may be raised here, although not brought to the attention of the lower court. Doubtless, an orderly course of procedure, and thorough fairness towards that court, would require the question of its jurisdiction to be made there in the first instance; but a failure to do so is not fatal to the right to contest the question here.
The exceptions to the ruling of the trial court in giving and refusing certain special instructions requested by the parties were made on the 8th day of February, 1894, the day that the jury were instructed. A motion for a new trial was filed February 10, 1894, including, among other grounds of error, the action of the court in giving and refusing to give to the jury such special requests, which motion was overruled, and a judgment entered on the verdict on March 3, 1894. On April 17th, following, a period of 45 days after the motion for a new trial had been overruled, and 68 days from the day of exceptions were noted, the plaintiff below presented the bill of exceptions to the trial court for allowance; and the court then extended the time therefor 10 days beyond the time allowed by statute, which was then 50 days; and on April 24, 1894, within the period of the 10-days extension, the bill of exceptions was signed, sealed, allowed, and ordered to be made a part of the record in the cause. This statement of the dates upon, and the order in, which the several material events occurred, shows that the bill of exceptions was presented to the trial judge, for an extension of time for signing it, on the forty-fifth day from the overruling of the motion for a new trial, and the sixty-eighth from the day the charge was made and exceptions thereto noted; and it was signed by the judge seven days later.
The statute, by its own force, allows 50 days for perfecting a bill of exceptions, and, provided it is presented to the trial judge at least 5 days before the 50 days have expired he may allow 10 days more for the purpose of signing the same. Pugh v. State, 51 Ohio St. 116, 36 N.E. 783. It is therefore apparent that the validity of the bill of exceptions in this case depends upon the event from which the computation of time shall be made. If from the overruling of the motion for a new trial, it is valid, because it was presented to the trial judge on the forty-fifth day thereafter, that being at least 5 days before the expiration of the 50 days; the judge then extended for 10 days the period for signing the same, which gave for that purpose a total of 60 days. On the seventh day after the extension was granted, or the fifty-second day from that on which the motion for a new trial was overruled, the bill of exceptions was signed by him. If, however, the computation be made from the day on which the charge was given and the exceptions to it noted, then the application for an extension of time, and the subsequent signing of the bill of exceptions, were both too late; the former having been made 68 days after, and the latter act occurring 75 days after, the exceptions had been noted. This court held in Earp v. Railroad Co., 12 Ohio St. 621, that a party who, on the trial of action, takes exceptions to the decision of the court upon the admission of testimony, and to the charges of the court to the jury, and has those exceptions reduced to writing, and signed by the judge, may allege error in a petition filed in the district court, without filing a motion for a new trial in the trial court upon those grounds. Doubtless, the law is the same now; for in this respect the existing statute is similar to the one then in force. Counsel contend that, because a motion for a new trial is not necessary to preserve the right to review a charge of the court, the time within which a bill of exceptions should be taken for that purpose begins to run from the day the charge was given. This contention would be sound in a case where a motion for a new trial was not made, and the party excepting choose to rely upon the exception taken during the course of the trial. The choice, however, is with him. By the express terms of section 5301, Rev. St., he may include these grounds of error in the motion for a new trial. The language of the section referring to this matter is: Where ‘ the exception is to the decision of the court on a motion * * * for a new trial for misdirection by the court to the jury, * * * the party excepting must reduce his exceptions to writing, and present them to the trial judge or judges for allowance within 50 days after the overruling of the motion for a new trial.’ The language of this section, we think, fully authorizes a party excepting to a charge of the court to include the alleged error in the motion for a new trial. It is just and reasonable to afford, by that means, an opportunity to the trial judge to review his rulings, which oftentimes must be made without access to...
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