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west rail of the track when the rays of its The trial court said, concerning this sixth headlights were first seen by the engineer, allegation of negligence: and if, as is conclusively shown in the record, the automobile afterwards moved forward "close to the track" during the two or three seconds before the engineer first caught sight of it, and if the automobile, as is conceded, stopped before it reached the track, then it is evident that the automobile stopped almost instantaneously upon the application of the brakes, within some 15 or 20 feet, or even less, and within less than the range of its headlights.

The defendant in error concedes in its brief that the automobile stopped before it was on the tracks, but in such close proximity thereto that some part of the overhang of the engine struck its left front wheel, whirling the machine around, and throwing Robinson into the locomotive. There is also testimony of Mrs. Robinson in the record to the effect that the automobile had stopped when she got out. This is borne out by the fact that she states that she was not thrown to the ground, or thrown in any manner, as she stepped out of the car.

Immediately after the accident the headlights and the spotlight were still lit, and, while the left front wheel was broken and the

fender damaged, the machine itself, so the evidence tends to show, was not much injured. "It wasn't damaged much," according to the testimony of one of the trainmen. In fact, the entire record, considered carefully both from the standpoint of the witnesses of the plaintiff in error and the defendant in error, shows that the automobile was proceeding very slowly when Robinson heard the bell; that he applied his brakes immediately upon the tinkling of the bell, and stopped before

"You may consider this ground so far as it relates to the question of notices, which would mean the sign or cross-arms required by law to be erected where a railroad crossing crosses a public road, but you have already been told that you will not consider the absence of lights on the track as a ground of negligence, and the signals referred to here are not the signals right to consider, but not other signals such given by bell or whistle. Those you have a as electric bells and the like. So that those grounds of negligence will be eliminated from your finding and it is not for you to say that the company was negligent by reason of not providing gates, watchmen, lights, electric bells, or on account of the rate of speed at which the train was running, but you may consider the other grounds of negligence which are set out in the petition, which are, as alleged, that the engineer in charge of train failed to give warning of the approach of the train by ringing the bell of the locomotive or by sounding the whistle, and you may also consider the remaining ground of the sixth basis of negligence claimed in the petition, in which it is averred that no proper notice was given of the approach of the train by sign boards."

As to the allegation in the petition that the

railroad company was negligent in not blowing the whistle and sounding the bell, which the court permitted to go to the jury, the evidence was in conflict. The engineer stated that he blew his whistle at the whistling post located 1,569 feet from the crossing, and the brakeman 'substantiated this statement, but admitted that on a former trial because it was the practice so to blow the whistle. Other witnesses gave testimony which tended to establish that signals were he reached the track, within at least some 15 not given until immediately prior to the acci

or 20 feet.

he had testified that he made this statement

dent.

The testimony of Mrs. Robinson that she heard the bell and immediately saw the dence of negligence in this record upon the It is vigorously urged that there is no evilight was supplemented by testimony from two residents of the immediate neighbor-amined the record very carefully in that parpart of the railroad company. We have exhood to the effect that the bell in question ticular, and feel that the requirements of this was difficult to hear, one of them stating state in that respect are more than complied with, and that there is some evidence

that:

"You have got to have a pretty quiet auto-of negligence on the part of the railroad commobile if you could hear it ringing."

The amended petition contained several allegations of negligence based on the failure of the railroad company to maintain gates, lights, or watchmen at the crossing. These allegations of negligence were withdrawn from the consideration of the jury by the trial court. However, the trial court permitted the jury to consider the sixth allegation of negligence, which asserted:

"That the company was negligent in failing and neglecting to construct and maintain at said crossing, lights, notices, and signals to advise the public and this plaintiff and her deIcedent of the existence of the said crossing

pany as alleged in the petition and considered by the jury under the instructions of the trial court.

The chief questions of law urged in the case are that under the rule as laid down in Gohman v. City of St. Bernard, 111 Ohio St. 726, 146 N. E. 291, 41 A. L. R. 1057, the reversal of the judgment by the Court of Appeals must be upheld because the trial judge failed to give request No. 1, for which specific error the Court of Appeals reversed the judgment in the second trial, and also because he refused to give request No. 4. We question whether the rule of the Gohman Case should be applied in this situation.

As is conceded by counsel, the distinguish

(158 N.E.)

An extensive list of decisions upon the question whether driving an automobile at a speed which prevents stopping within the range of vision of the driver constitutes negligence per se is to be found in volume 44 of the American Law Reports, at page 1397. The leading case (Murphy v. Hawthorne, 117 Or. 319, 244 P. 79, 44 A. L. R. 1397) decided March 2, 1926, held:

trial was unaware that the Court of Appeals | crash came, but had stopped in close proximhad reversed the judgment on the second ity to the tracks. Therefore it is evident that trial for the failure to give this particular | Robinson had stopped his machine within an charge. Counsel for the plaintiff administra- area much smaller than that lighted by the trix, as stated professionally by him and not headlights. denied by opposing counsel, did not know of this fact owing to the circumstance that his partner, who tried the case at its second trial in the court below, had died shortly before the third trial. Counsel for the railroad company knew that the second judgment in favor of the decedent's administratrix had been reversed for failure to give this particular request No. 1, but in spite of that fact did not call that circumstance to the attention of the trial court. He states that the trial court gave him no opportunity so to do, but the fact remains that it would have been quite possible for him to inform the trial judge that this particular request had been refused in the previous trial, and that this refusal had been held by the intermediate reviewing court to constitute reversible error. We do not believe that the rule of the law of the case should be extended to such a situation.

Where counsel have gambled upon the outcome in the trial court, without informing the trial judge, who is from a different county and is not the judge who participated in the previous hearing of the case, of the existence of the ruling upon a request to charge which is offered in the trial then being held, counsel waive their right to urge in this court that their opponents are precluded from recovery under the doctrine of the Gohman Case. This contention is therefore overruled.

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"No hard and fast rule makes it negligence to drive an automobile at such speed that it cannot be stopped within the range of the

driver's vision."

A respectable list of authorities from other states is cited and discussed at length in the note, which hold that it is negligence as a matter of law to drive an automobile at such a rate of speed that it cannot be stopped in time to avoid an obstruction discernible ahead of the driver within his range of vi sion. On the other hand, a number of courts of last resort have refused to adopt a hard and fast rule that the driver of an automobile is as a matter of law guilty of negligence in driving at such a rate of speed as prevents his stopping in time to avoid an obstruction within the range of his vision. The doctrine that such a question is a question of fact to be decided by the jury under all the circumstances of the case is laid down in Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253; Fleming, Exr., v. Hartrick, 100 W. Va. 714, 131 S. E. 558; Ham v. County of Los Angeles, 46 Cal. App. 148, 189 P. 462; Rozycki v. Yantic Grain & Products Co., 99 Conn. 711, 122 A. 717, 37 A. L. R. 528; Kaufman v. Hegeman Transfer & Lighterage Terminal, Inc., 100 Conn. 114, 123 A. 16; Kendall v. City of Des Moines, 183 Iowa, 866, 167 N. W. 684; Owens et al., Adm'rs, v. Iowa County, 186 Iowa, 408, 169 N. W. 388; Ross v. Hoffman (Mo. App.) 269 S. W. 679; Devoto v. United Auto Transportation Co., 128 Wash. 604, 223 P. 1050. Under either rule however, the trial court was correct in refusing to charge request No. 1 before argument, since the request applied the rule to hidden dangers of every kind, as

[1] We come then to consider whether as a matter of substantive law the court was in error in refusing to charge request No. 1 and request No. 4, above given. We think that no error was committed by the trial court with regard to request No. 1, for the reason that it embraced a broad proposition never laid down as law in this state. The utmost extent to which this doctrine has been declared has been that the driver of an automobile in the nighttime has to have his machine under such control that the machine can avoid obstructions within the area lighted by its headlights. We have seen no cited case which holds that the driver has to have his machine under such control that in addition to being able to avoid obstructions within the area lighted by its headlights he must❘ well as to tangible objects. also be able to avoid hidden dangers of every kind. Babbitt on Law Applied to Motor Vehicles (3d Ed. 1923) §§ 555 and 556; Huddy on Automobiles (8th Ed. 1927) § 396; and Berry on Automobiles (5th Ed. 1926) § 196.

Moreover, this request was not relevant to the issues presented by this record. The defendant in error in its brief conceded that the automobile was not on the tracks when the

[2] The Court of Appeals also found that the trial court erred in failing to give request No. 4 before argument. This request, which has been given above, was likewise objectionable. The defendant in error urges that this instruction states the law, and cites in support of that position N. Y. C. & St. L. R. Co. v. Kistler, 66 Ohio St. 326, 64 N. E. 130. That case, however, was not an automobile

case. The engineer operating the train of the defendant at the crossing and time in question covered by this record had the right to assume that any person approaching the crossing in an automobile would exercise ordinary care in so doing. It was the duty of Robinson, as he approached the crossing in question, at all times to be in the exercise of ordinary care for his own protection and safety, and in the proper exercise of that kind and degree of care he was charged with hearing and seeing what an ordinarily prudent person would have seen and heard while looking and listening in an ordinarily prudent manner. The court charged these propositions of law, and also charged that, if Robinson failed to see or hear the approach of the train, or failed to hear the warning of the electric gong at the crossing, when the same would have been seen or heard by an ordinarily prudent person while in the exercise of ordinary care, and that failure contributed to bring about the collision and his death, then the plaintiff could not recover.

The court refused, however, as a matter of law, to charge as requested in effect in charge No. 4, that the engineer, while having the right to presume that a driver approaching the track in an automobile would stop before going on the track, or in such close proximity to the track that his machine would be struck by the locomotive or any other part of the train, under the facts of this case was relieved from taking any further precaution or making any effort to stop or slacken the speed of the train if the engineer discovered that presumption was not well founded.

While an automobile driver rests under the duty of looking and listening before he crosses a railroad track of whose existence he is aware, it is not as a matter of law his absolute and unqualified duty to stop before he goes upon such railroad track unless his looking or listening discloses the presence of a moving train. We therefore find no error in the trial court's refusal to give the charge as requested.

(116 Ohio St. 734)

JONES, Treasurer, v. RALSTON et al. (No. 20242.)

Supreme Court of Ohio. March 29, 1927.

(Syllabus by Editorial Staff.)

Appeal and error 554 (2)—Record held insufficient to support assignments, where no bill of exceptions was allowed and journal entries lacked findings of fact.

On motion in Supreme Court to dismiss petition in error on the ground that no bill of exceptions had been allowed and that the assignments of error were not properly presented by the pleadings and journal entries, where it appeared that application to incorporate findings of fact in journal entry of Court of Appeals had been denied, record held insufficient to present assignments of error and petition in error dismissible.

Error to Court of Appeals, Belmont County.

Action between one Jones, Treasurer, and one Ralston and another. To review the judgment, the former brings error. On motion to dismiss the petition in error. Petition dismissed.

Paul V. Waddell, Pros. Atty., of Bellaire, Herbert W. Mitchell, of St. Clairsville, and Bernard G. Witten, of Bellaire, for plaintiff in error.

Gordon D. Kinder, of Martin's Ferry, and Heinlein, Lynch & James, of Bridgeport, for defendants in error.

PER CURIAM. This cause was admitted to this court on motion to certify the record. Later a motion was made by the defendant in error to dismiss the petition in error on the ground that no bill of exceptions had been allowed and that the assignments of error were not properly presented by the pleadings and the journal entries. Thereafter, upon motion of plaintiff in error, a continuance was granted to permit a further application in the Court of Appeals to incorporate the findings of facts in the journal entry of that court. The Court of Appeals denied the relief sought. The cause therefore stands in this court without sufficient record to present the assignments of error set forth in the petition in error. The motion to dismiss the Judgment reversed, and judgment of the petition in error will therefore be sustained.

For the above reasons, the judgment of the Court of Appeals will be reversed, and the judgment of the court of common pleas arfirmed.

court of common pleas affirmed.

Petition in error dismissed.

MARSHALL, C. J., and DAY, ALLEN,

DAY, ROBINSON, and MATTHIAS, JJ., KINKADE, ROBINSON, JONES, and MATTHIAS, JJ., concur.

concur.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(116 Ohio St. 735)

(158 N.E.)

mission, in the exercise of its jurisdiction INDUSTRIAL COMMISSION OF OHIO v. under the statute, proceed with the hearing

STATE ex rel. NAGY. (No. 19802.)

Supreme Court of Ohio. April 26, 1927.

(Syllabus by Editorial Staff.)

1. Master and servant 414-Compensation claimant held entitled to hearing and determination of claim that loss of sight of one eye resulted from injury in course of employment.

Compensation claimant held entitled to hearing and determination as to whether loss of sight of one eye resulted from injury in course of employment, in order that, if claim to compensation was rejected, he could appeal.

and determination of the relator's claim for permanent disability.

Judgment modified and affirmed.

MARSHALL, C. J., and DAY, ALLEN, KINKADE, ROBINSON, JONES, and MATTHIAS, JJ., concur.

(117 Ohio St. 215)

TAX COMMISSION OF OHIO V.
PARKER et al.

2. Master and servant 414-Writ of Industrial Commission should not require it imme- PARKER et al. v. TAX COMMISSION OF diately to take final action on compensation claimant's application.

Writ should not have required Industrial Commission, immediately on receipt of order, to proceed to take final action on application of compensation claimant, but should have ordered commission, in exercise of statutory jurisdiction, to proceed with hearing and determination of claim.

Error to Court of Appeals, Franklin County. Proceeding by the State, on the relation of one Nagy, to compel the State Industrial Commission to hear relator's claim for compensation for permanent disability. Judg ment for the relator, and defendant brings error. Modified and affirmed.-[By Editorial Staff.]

C. C. Crabbe and Edward C. Turner, Attys. Gen., and R. R. Zurmehly, of Columbus, for plaintiff in error.

Joseph W. Sharts, of Dayton, for defendant in error.

PER CURIAM. It is ordered and adjudged by this court that the judgment of said Court of Appeals be, and the same hereby is, modified, and, as so modified, is affirmed.

[1] The relator is entitled to a hearing upon and a determination of his claim that his alleged permanent disability, to wit, the loss of the sight of one eye, resulted from injury sustained in the course of his employment, so that, if the same be rejected and his right to compensation therefor be denied, he could avail himself of the right of appeal. Industrial Commission of Ohio v. Phillips, 114 Ohio St. 607, 151 N. E. 769.

[2] However, the writ issued should not have commanded that "defendant immediately on service of this order proceed to take final action upon the application," etc., and, this court coming now to enter the order which the Court of Appeals should have made, it is ordered that the Industrial Com

OHIO.

(Nos. 20385, 20387.)

Supreme Court of Ohio. June 22, 1927.
Rehearing Denied Sept. 27, 1927.
(Syllabus by the Court.)

1. Taxation 900 (2)—Transferee has burden
of showing that transfer of property, made
within two years of transferor's death, was
not made in contemplation of death (Gen.
Code, § 5331, 5332, div. 3, subd. [a], and §
5332-2).

The provision of section 5332-2, General Code, "Any transfer of property from a resident, * if shown to have been made without a valuable consideration substantially equivalent in money or money's worth to the

full value of such property, if so made within two years prior to the death of the transferor, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title," casts upon the transferee the burden of showing that a transfer of property, made within two years of the death of the transferor, was not made in contemplation of death.

2. Taxation 859(1) Statute placing on transferee burden of proving property transferred within two years of transferor's death was not in contemplation of death held valid (Gen. Code, § 5332-2).

The provision of section 5332-2, General Code, casting upon the transferee the burden of showing that a transfer of property made within two years of the death of the transferor was not made in contemplation of death, is not a violation of any provision of the Constitution, either of the state of Ohio or of the United States.

3. Statutes 37-Word "the" in statute defining "contemplation of death," not in enrolled act, held no part of statute (Gen. Code, § 5331, subd. 5).

The word "the," found between the words "that" and "expectation" in subdivision 5 of section 5331, General Code, was not placed there by the Legislature and is no part of that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

90

section. Subdivision 5 of that section correctly reads: "Contemplation of death' means that the expectation of death which actuates the mind of a person on the execution of his will." 4. Taxation 879(1)—Whether property was transferred in contemplation of death depends on whether transferor intended distribution of estate or act of generosity (Gen. Code, §§ 5331, 5332-2).

[3] It appears, upon an examination of the original and enrolled act, as filed in the office of the secretary of state, that the word "the" between the words "that" and "expectation" does not appear therein.

"Where there is a discrepancy between the printed statute and the enrolled act, all the authorities agree that the latter controls." 1 Lewis' Sutherland, Statutory Construction The controlling fact in determining wheth-(2d Ed.) § 74. er a transferor made the transfer of property In the case of State v. Groves, 80 Ohio St. in contemplation of death is whether the pur-351, 88 N. E. 1096, 17 Ann. Cas. 361, this

pose of the transferor was to distribute or partially distribute his estate, or was simply to do an act of generosity or kindness.

Day, Kinkade, and Jones, JJ., dissenting.

Error to Court of Appeals, Ashland County.

Proceedings between the Tax Commission of Ohio and Mary Myers Parker and others. To review a judgment of the Court of Appeals, reversing an order of the court of common pleas, which modified the succession tax assessed by the probate court, both parties separately bring error. Judgment of the Court of Appeals and of the common pleas affirmed in part and reversed in part.-[By Editorial Staff.]

E. C. Turner, Atty. Gen., and V. H. Gibbs, of Columbus, for plaintiff in error.

Charles S. Druggan, of Columbus, T. G. Thompson, of Cleveland, and M. V. Semple, of Ashland, for defendants in error.

ROBINSON, J. These cases involve the interpretation of the provision of section 5332, General Code:

"A tax is hereby levied upon the succession to any property passing, in trust or otherwise, to or for the use of a person, institution or corporation, in the following cases:

*

*

"3. When the succession is to property from a resident, * by deed, grant, sale, assignment or gift, made without a valuable consideration substantially equivalent in money or money's worth to the full value of such property:

"(a) In contemplation of the death of the grantor.

*

Also, the provision of section 5332-2, General Code:

* *

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court declared:

"Where there is a variance or repugnancy in terms, between the printed copy of a statute published under the authority of the state, and the original enrolled act signed by the presiding officers of the two houses of the General Assembly, approved by the Governor, and deposited with the secretary of state, the latter controls."

That portion, then, of section 5331, General Code, correctly reads:

"Contemplation of death' means that the expectation of death which actuates the mind of a person on the execution of his will."

"A will is commonly defined as any instrument executed with the formalities of law, whereby a person makes a disposition of his property to take effect after his death." 28 Ruling Case Law, 58, § 2.

"A will is a disposition of property to take effect on or after the death of the owner." 40 Cyc. 995.

"A written instrument, legally executed, by which a man makes disposition of his estate, to take effect after his death." Webster.

On December 2, 1923, F. E. Myers died. Prior to his death he had made distribution to his children and the wife of one and the husbands of the other two, as follows:

(1)

Securities given under irrevocable
trust agreement, dated December
22, 1921, for the benefit of his three

children equally, appraised at.... $1,238,188 96
(2) Shares of the common stock of the
F. E. Myers & Bro. Company, giv-
en on January 12, 1923, 2,700 shares
to his three children equally; 100
shares to Alice Mould Myers, wife
of John C. Myers; 100 shares to
T. W. Miller, husband of Helen
Myers Miller; 100 shares to Fred-
erick L. Parker, husband of Mary
Myers Parker, appraised at a total
of

"Any transfer of property from a resident, if shown to have been made without a valuable consideration substantially equivalent (3) A parcel of real estate at the corin money or money's worth to the full value of such property, if so made within two years prior to the death of the transferor, shall, unless shown to the contrary, be deemed to have been (4) made in contemplation of death within the meaning of this title."

Also, the provision of section 5331, General Code:

"Contemplation of death' means that the expectation of death which actuates the mind of a person on the execution of his will."

ner of Euclid avenue and Fourth
street, in Cleveland, deeded to his
three children equally, on May 14,
1923, appraised at...
Securities given to his three children
on August 24, 1923:

To Mary Myers Parker, of the ap-
praised value of....

600,000 00

420,000 00

1,007,763 16

To John C. Myers, of the appraised
value of

1,007,561 85

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