
    STREET RAILWAYS — VERDICTS.
    [Mahoning- (7th) Court of Appeals,
    October 20, 1916.]
    Pollock, Metcalf and Spence, J,T.
    Eliza Simms, Admx. v. Stark Electric Ry.
    1. Findings of Fact may be Ordered Returned though not Requested by Counsel.
    It is within the discretionary right of the trial court, even against the objection and exception of both parties, to require the jurors, if they render a general verdict, specifically to find upon particular written questions of fact and return written findings thereon.
    2. Judgment may be Entered on Said Findings where Inconsistent with the Verdict.
    If the special findings of fact returned by the jury in obedience to the direction of the court, are inconsistent with the general verdict, the former shall control and it is not error for the trial court to enter judgment thereon.
    3. Interurban Railway May Eject in Night Time Intoxicated Passenger Refusing to Pay Fare.
    A railroad company operating its cars by electricity in the open country is not negligent in requiring an intoxicated man to leave its car in the night time for the nonpayment of his fare at a regular stop for the discharging and receiving of passenger-s on a public highway, when he, although noticeably intox- ' icated, was able to walk and talk intelligently.
    [Syllabus by the court.]
    Error.
    
      E. H. Emmermcm, for plaintiff in error.
    
      Hart & Koehler, for defendant in error.
   POLLOCK, J.

The plaintiff in error began an action in the court of common pleas of this county against the defendant in error, alleging in her petition that the defendant was operating an electric railroad from the city of Alliance to the village of Sebring; that the plaintiff’s intestate, at the time alleged, purchased a ticket and became a passenger on one of defendant’s cars, intending to ride from the city of Alliance to Sebring; that he was unlawfully ejected from the car by the conductor at a stop on defendant’s road known as No. 47. She further alleges that at the time Arthur Simms was ejected from defendant’s car he was intoxicated and by reason thereof was stupid and bereft of intelligence and unable to take care of himself, which was known to the conductor of defendant’s car at the time he was ejected; that it was in the night time, and that there was no direct road from the stop where he was ejected to Simms’ home except along the line of defendant’s railway where cars were passing frequently at a high and dangerous rate of speed; that shortly after Simms was ejected from defendant’s car he was struck by another ear of defendant company and killed. She asks damages for negligently causing the death of her intestate.

An answer was filed denying the acts of negligence and alleging that Arthur Simms was guilty of contributory negligence in going upon the private right of way of defendant company.

The evidence adduced at the trial in the court below shows that Arthur Simms took passage on one of defendant’s cars at the time alleged, standing on the back platform; that he was intoxicated, and when asked for his fare or ticket he insisted he had a ticket but could not find it. The conductor left him standing on- the platform and when the car stopped at the station known as No. 47 to discharge and receive passengers the conductor again apprgached him for his fare, and as he did not produce Ms ticket or offer to pay his fare, the conductor told Mm he would have to leave the car. Thereupon he left the car, which proceeded on its journey, leaving Simms standing at the side of the track.

This stop was on a public Mghway which crossed the tracks of defendant company at right angles, and was a regular stop on defendant’s railroad for discharging and receiving passengers. Shortly afterwards the deceased was found lying on defendant’s track a short distance east of the spot where he was ejected. He had been struck by one of defendant’s cars and injured so that he died shortly thereafter. From Stop No. 47, on the public highway, east to the point where Simms was struck and killed was the private right of way of the defendant company.

On the trial of the case, the court, at the close of the argument, without being requested by either party, submitted five written interrogatories to the jury with instruction that, if they returned a general verdict to return written findings of facts thereto. The jury retired, and afterwards returned a general verdict for the plaintiff and therewith returned answers to the interrogatories submitted by the court.

Upon motion of the plaintiff, the court refused to enter judgment on the general verdict, but upon the motion of defendant gave judgment for defendant on the findings of fact contained in the answers to the interrogatories.

The plaintiff claims that the court erred in entering judgment for the defendant upon the finding of the jury to the interrogatories submitted by the court, and refusing to give judgment on the general verdict, for the reason that the court is without authority to require the jury to find specially on particular questions of fact except upon request of a party.

Section 11458 G. 0. provides that the verdict of a jury must be either general or special. The next section defines a general verdict and the following section defines a special verdict,. Section 11461 provides that unless otherwise directed by the court, the jury may render either a general or a special verdict and the section following requires the court, on request of either party, to direct the jury to return a special verdict.

We see that under the provisions of Sec. 11461 the kind of a verdict the jury shall return, whether special or general, does not depend alono upon the request of the parties or the will of the jury, but the court may direct the jury to render either a special or general verdict. Section 11463 provides that upon request of either party, the court shall instruct the jury, if it returns a general verdict, specifically to find upon particular-questions of fact to be stated in writing, and shall direct a written finding thereon.

This is usually done by submitting to the jury written interrogatories mid directing that if they shall find a general verdict, that they shall make written findings thereon. The next section provides that if the special finding of fact is inconsistent with the general verdict the former shall control.

The plaintiff in error insists that the court can not, except upon a request of one of the parties, require the jury to return with the general verdict specific findings upon proper questions of fact in accordance with the provisions of Sec. 11463 G. C. and if the special findings of fact by the jury are inconsistent with the- general verdict, enter a judgment upon the special findings of fact.

It is evident from a reference to the section of the General Code, which is referred to, .that the statute under which the court directs a jury to return a special finding of fact with the general verdict does not specifically provide for the court upon its own motion making such direction, so that if it was not error for the court to do so it must be under the inherent power of the court to direct and control the procedure in the trial of a ease.

We find from an examination of the legal history of the English jury law that the jury had a right to return either a general or a special verdict and the court had no power over the jury to control the form of verdict. 3 Blackstone Com. 377. This right does not seem to have been accorded to the jury by the courts of this country, or at least the jury has not exercised this privilege. The right of the court to inquire of the jury in regard to its acts while in the jury room considering the case after it had been submitted to the jury was recognized by the Supreme Court of Massachusetts. Hix v. Drury, 22 Mass. (5 Pick.) 296.

The practice became common for the trial court to interrogate the jury at the time they returned their general verdict in regard to the grounds on which it was founded, or they could require them to return with their general verdict a finding as to certain facts, the existence of which were material in determining the rights between the parties. This was done upon the direction of the court under its discretionary power for the purpose of enabling the court to determine the materiality of the question upon which the jury based their verdict. Lawler v. Earle, 87 Mass. (5 Allen) 22; Spoor v. Spooner, 53 Mass. (12 Met.) 281; McMasters v. Insurance Co. 25 Wend. 379-381; Smith v. Putney, 18 Me. 91; Walker v. Walker, 13 N. H. 196.

The practice was within the discretion of the court and could be exercised by it even against the objection of both parties. Spoor v. Shelburne, 131 Mass. 429; Barston v. Sprague, 40 N. H. 22; Walker v. Bailey, 69 Me. 354.

When the answers to these special findings were irreconcilably inconsistent with the general verdict, or the answers to the interrogatories showed that the verdict was founded upon unsubstantial grounds or a misconception of the ease, the verdict was set aside. 28 Am. & Eng. Encycl. (1st ed.) 397; Richardson v. Ware, 62 N. H. 80; Pierce v. Woodword, 23 Mass. (6 Pick.) 206; Parrot v. Thatcher, 26 Mass. (9 Pick.) 426.

Many of the states now have statutory provisions, similar to those of this state, requiring the court on the request of the par-lies to direct the jury to find specifically upon particular questions of fact, and return their finding of fact with the general verdict. These statutory provisions do not affect the discretionary power of the court to require the jury to return with the general verdict findings of certain facts which had been recognized by the court before the enactment of the statute, but only extended the right to the parties to demand their submission. Both are in the interest of justice in order to determine whether the general verdict of the jury is based upon the real issues joined in the action. The trial court should have equal power to direct the procedure in the trial of a cause before it with that of the parties.

The right of the court upon its own initiative to require the jury to return specific findings of fact with a general verdict, has been affirmed in a number of states having statutory provisions giving to either party the right to request the court to direct a jury to make such findings and return with their general verdict. Those returned by direction of the court will have the same effect upon the general verdict as those submitted by request of the parties. Thompson on Trial, Section 2673.

The statute, See. 11463, was adopted from the statute of Indiana on the same subject, and the presumption is that it was adopted with reference to the construction placed upon the Indiana statute by the courts of that state. Gale v. Priddy, 66 Ohio St. 400, 405 [64 N. E. 437],

The Supreme Court of that state have held that the trial court, under their statute, had the right to submit interrogatories to the jury to be answered by it in case a general verdict is returned.

“The court may, of its own motion, propound to the jury interrogatories to be returned with the general verdict.” Senhenn v. Evansville, 140 Ind. 675 [40 N. E. 69]; Killian v. Eigenmann, 57 Ind. 480; Louisville, N. A. & C. Ry. v. Worley, 107 Ind. 320 [7 N. E. 215]; Halstead v. Wood, 48 Ind. App. 127 [95 N.E. 429].

We think the court did not err in submitting to the jury these interrogatories, but was within the discretionary right of the court.

An examination of these interrogatories shows that they were all, except the first, and fourth, subject to the objection that they were not findings of facts alone, but mixed finding of fact and law. Brier Hill Steel Co. v. Ianakis, 93 Ohio St. 300.

' The fourth interrogatory and its answer are not material to any issue in the case.

The first interrogatory and1 its answer read as follows:

“State, if possible, the nature and extent of decedent’s intoxication? A. He was intoxicated but not to the extent that he did not know what he was doing at the time of getting off the car.”

We have examined the evidence in this case, and while the decedent was under the influence of intoxicating liquor at the time he boarded and remained on defendant’s car, yet there was nothing in his conduct that would indicate or notify the conductor of defendant company that he was in a helpless condition, or in fact was not in a condition to know where he was and his surroundings and fully care for himself.

We think that the answer of the jury to this interrogatory is fully justified by the evidence.

He was asked to leave the car because he had not paid his fare. He said he had a ticket, but neither produced the ticket nor offered to pay his fare in case he could not find it, and when requested to leave the car he did so. He was requested to leave the car and did leave the car at a regular stop of the defendant company for discharging and receiving passengers and where other passengers were alighting from the car. After this he went upon the private right of way of the defendant company and was there struck and so injured by another ear of defendant company that he died. There is no testimony tending to prove that defendant’s employees, in charge of the ear which actually inflicted the injury that caused the death of plaintiff’s intestate, were in any way negligent. An electric railroad company operating its cars in the open country is not negligent in requiring an intoxicated man to leave its car in the night time for. non-payment of his fare at a regular .stop for discharging and receiving passengers on a public highway when he, although noticeably intoxicated, was able to walk and talk intelligently. Elliot, Railroads, Sec. 1637; Roseman v. Carolina Central Ry. 112 N. C. 709 [16 S. E. 766; 19 L. R. A. 327]; Korn v. Railway, 125 Fed. 897 [63 L. R. A. 872]; Bageard v. Traction Co. 64 N. J. L. 316 [45 Atl. 620; 49 L. R. A. 424; 81 Am. St. 49.8]; Smith v. Railway, 114 N. C. 728 [19 S. E. 863, 923; 25 L. R. A. 287]; Wood v. Commissioners, 128 Ind. 289-291 [27 N. E. 611],

The railroad company was not required to anticipate that any injury would result to plaintiff’s intestate from its requiring him to leave the car at this place after a failure to pay his fare.

After a full consideration of all the evidence we think the judgment of the court below is manifestly right and for that reason we are not authorized to reverse the judgment.

The judgment of the court below is affirmed. Exceptions noted.

Metcalf, J., concurs

SPENCE, J.,

dissenting.

The plaintiff in error began this action in the court of common pleas of Mahoning county, to recover damages for the wrongful death of Arthur Simms, averring in the petition that her decedent purchased a ticket and boarded one of defendant’s cars, intending to go from Alliance to Sebring; that at stop 47, which was some distance out of the city of Alliance, he was wrongfully ejected by the conductor of defendant’s car; that at the time he was put off the ear he was intoxicated, and by reason thereof was stupid, bereft of intelligence, and unable to take care of himself, which fact was known to the conductor of the car; that it was in the night time and dark; that there was no direct road to decedent’s home, except along defendant’s railway, on which cars were passing frequently; and that shortly after he was ejected, through the negligence of defendant’s employes, he was struck by another car, at or near to the highway crossing, Avhere he was ejected, and died soon after from the effects of the injury.

The defendant company, in its answer, denied any acts of negligence on its part, and averred that Arthur Simms was guilty of contributory negligence in going upon the private right of way of the defendant company.

The case was tried to a jury, and after the evidence was all in, arguments of counsel and the general charge of the court, the court, on his own motion and against the objection and exception of both parties, submitted, in writing to the jury, five interrogatories, prepared by himself, and directed the jury that if they returned a general verdict to answer the interrogatories ;md return them into court with their verdict. The jury returned a general verdict for the plaintiff, answered the five interrogatories, and returned them with the Awrdict.

The court refused plaintiff’s motion for judgment on the verdict, and on motion of the defendant entered a judgment for the defendant, because the ansAvers to the interrogatories were inconsistent with the general verdict.

The majority of this court refused to consider three of the special interrogatories because they were “mixed finding of fact and law, ’ ’ and one because the interrogatory and its answer are not material to any issue in the case. Leaving the following interrogatory and its answer as the only one considered: “State, if possible, the nature and extent of decedent’s intoxication? A. He Avas intoxicated but not to the extent that he did not know what he was doing at the time of getting off the car. ’ ’ The majority of the court dd not find, or state in the opinion, that the interrogatory and ansAver determined the issue or the controlling fact in the ease.

Defendant company introduced evidence, at the trial, showing that Arthur Sims was intoxicated while riding on defendant’s car; that he rode on the rear platform of the car from Alliance to the place where he was ejected; that when the conductor first asked him for his fare he replied that he had a ticket, fumbled through his pockets and said he could not find it; when the conductor again went to him for his fare he did not produce the ticket or offer to pay his fare, and the conductor put him off the ear; that it was in the night and dark; that stop 47 is in the country; that shortly after he was ejected from the ear the motorman of another of defendant’s cars, as he Avas approaching the highway crossing Avhere Simms was ejected, saw an object on the track, Avhieh object proved to be Simms lying on the track where he was struck by defendant’s car and injured so that he died soon after the injury.

From the evidence in the case it is fair to presuine that, almost immediately after leaving the car, Simms lay doAvn, or fell down on the tracks of the company; as Avhen he was discovered he was at or near to the highway crossing where he was ejected from the ear; that he Avas' in a helpless or unconscious condition from the effects of bis intoxication. From the undisputed evidence in the ease any reasoning mind would be led to the inevitable conclusion that the answer to the interrogatory, as returned by the jury, that, “He was intoxicated but not to the extent that he did not know what he was doing at the time of getting off the car, ’ ’ is not justified by the evidence.

The only statute in this state authorizing the court to submit special interrogatories to the jury to be answered and returned with a general verdict, is See. 11463 G. C. which provides :

“"When either party requests it, the court shall instruct the jurors, if they return a general verdict, especially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

Quoting from the majority opinion:

“It is evident from a reference to the section of the General Code, which is referred to, that the statute under which the court directs the jury to return a special finding of facts with the general verdict, does not specifically provide for the court, upon its own motion, making such direction, so that if it was not error for the court to do so, it must be under the inherent power of the court to direct and control the procedure in the trial of a case.”

In another part of the opinion it is said:

“The statute, Sec. 11463, was adopted from the statute of Indiana on the same subject, and the presumption is that it was adopted with reference to the construction placed upon the Indiana statute by the courts of that state. The Supreme Court of that state have held that the trial court, under their statute, had the right to submit interrogatories to the jury to be answered by it in case a general verdict is returned. The court may, of its own motion, propound to the jury interrogatories to be returned with the general verdict. Senhenn v. Evansville, 140 Ind. 675 [40 N. E. 69]; Killiam v. Eigenmann, 57 Ind. 480; Louisville, N. A. & C. Ry. v. Worley, 107 Ind. 320 [7 N. E. 215].”

The opinion does not state which is the correct construction of our statute. The first proposition is that the statute does not authorize the court, on its own motion, to submit interrogatories to the jury. The second proposition is, that because of the Indiana parentage of the statute, it does authorize the court to submit them. The “inherent” power of the court to submit interrogatories on its own motion, is supported by decisions of the courts of Massachusetts, New Hampshire and Maine. At an early day the practice seems to have grown up in Massachusetts for the court to ask the jury when they returned a verdict, whether they had found a certain fact necessarily involved in a general finding; or if the judge is surprised by thee verdict, to ask the jury upon what principle it was found. This practice was followed in New Hampshire, Maine, and in an early case in New York. The questions and answers were used in making up a bill of exceptions, or on granting a new trial, because of the insufficiency of the evidence. We have not been referred to a case, and I have not been able to find one, in those states, where the court, on answers to questions or interrogatories submitted to the jury, on the court’s own motion, entered a judgment contrary to the general verdict of the jury.

We are not informed as to the nature or extent of the jurisdiction conferred upon those courts, but the courts of Ohio have a limited jurisdiction. Article 4, Sec. 4 of' the constitution of Ohio provides:

“The jurisdiction of the courts of common pleas and the judges thereof shall be fixed by law. ’ ’

In Stevens v. State, 3 Ohio St. 453, the syllabus is:

. “The constitution confers no jurisdiction whatever upon the courts of common pleas in either civil or criminal cases. It is made capable of receiving jurisdiction in all such cases, but can exercise none until conferred by law. ’ ’

And in Allen v. Smith, 84 Ohio St. 283 [95 N. E. 829; 24 Ann. Cas. 611], it is said:

“The jurisdiction of the courts of common pleas of the state is, by force of this section of the constitution, to be fixed by statute.”

There is no “inherent” power conferred upon the courts of Ohio, and the value of decisions of other states, as aids to our courts, depends upon the jurisdiction conferred upon such courts. Section 11463 G. C. is tbe only statute in Ohio authorizing the courts to direct the jury, specially to find upon particular questions of fact, “when either party requests it,” but it does not authorize the court, on its own motion, to direct a finding of facts. Courts have certain incidental powers necessary to carry into effect the delegated powers, but there is no inherent power conferred upon them in this state.

The proposition that Sec. 11463 was adopted from an Indiana statute on the same subject, and presumably with the construction placed upon the Indiana statute by the courts of that state, is a rule of construction which we supposed was abrogated by the Supreme Court of Ohio in the case of Erie Ry. v. Steinberg, 94 Ohio St. 189 [113 N. E. 814], in the case of Killian v. Eigenmann, 57 Inch 480, it is said: “The court may direct a jury to answer interrogatories propounded of its own motion. See Weatherly v. Higgins, 6 Ind. 73.” In Louisville, N. A. & C. Ry. v. Worley, supra, Elliott, J., said:

“Our decisions are that it is proper for the trial court to revise interrogatories submitted by the parties, and to prepare and propound for itself proper' interrogatories to the jury, Killian v. Eigenmann.”

And in Senhenn v. Evinsville, supra, Howard, J., said:

“We are of opinion, however, subject to review, as in other eases, the court may prepare and propound to the jury proper interrogatories to be returned with the general verdict. Killian v. Eigenmann, and Railway Co. v. Worley.”

There is no intimation in any of these cases, that the court was authorized to enter a judgment, on the answers to the interrogatories contrary to the general verdict. In each case judgment was entered on the general verdict, and each case was reversed for error in the charge of the Court.

It will be noticed that none of the above cases refers to the statute of Indiana authorizing the submission of interrogatories to the jury, or places a construction upon the statute. The first decision referred to, in Killian v. Eigenmann, supra, refers for authority to the case of Weatherly v. Higgins, supra, where the court was construing the statute that provides:

‘ ‘ Unless otherwise directed by tbe court, a jury may render either a general or a special verdict in all actions.”

Held, that the words: “Unless otherwise directed by the court,” show that the legislature intended to clothe the court with power to direct the jury to find a special verdict without being requested by either party.”

The court was construing a different statute, and this decision is no authority for the decision in Killian v. Eigenmann, supra, and the two decisions following it are based upon this erroneous reference, and the only way those eases can be sustained as authority, is on the theory of some courts that an error frequently repeated by the courts makes it an established principle of law.

The learned judge in preparing the opinion for the majority of the court, seems to have overlooked the case of Cleveland, C., C. & I. Ry. v. Bowen, 70 Ind. 478, syllabus:

“Under Sec. 336, 2 B„ S. p. 171, a jury can only be requested to answer special interrogatories conditionally upon their finding a general verdict, and then only when so instructed by the court, upon the request of one or both of the parties. The submission of interrogatories to the jury is a judicial act, and the record ought, in some way, to show affirmatively that the interrogatories were submitted to the jury in the manner and under the circumstances contemplated by the statute.”

Elliott, C. J., said:

“If the court were authorized, at their discretion, to submit interrogatories upon mere questions of fact, in all cases, we might be justified in assuming, where interrogatories have been answered and returned into court, that they have been properly submitted to the jury; but, however that might be, we think a stricter rule ought to be observed, where the authority of the courts in that respect is limited and special.”

The majority opinion seems to have followed the obiter dicta of the courts, rather than the construction placed upon the statute by the Supreme Court of Indiana. Our attention has not been called to a case, and we have not been able to find one, where judgment was entered, contrary to the general verdict, on answers to special interrogatories, submitted to tbe jury, on tbe court’s own motion, except, in states where tbe legislature has specially authorized the court, on its own motion, to submit interrogatories to the jury. The majority opinion seems to have gone farther than any case, ancient or modern, and to be a departure from both principle and authority.

The petition in the case at bar raised the question of the “last clear chance,” or at least the case was tried and submitted to the jury upon that theory. The duty of the defendant company is defined in the following cases. In Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. 282; 16 L. R. A. 674], it was held:

“It is a well settled rule of the law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the injury of which he complains, if the defendant, after he became, aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid it, and he was thereby injured. The rule that the negligence of the injured party, which proximately contributes to the injury, precludes him from recovering, has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”

In West v. Gillette, 95 Ohio St. 305 [116 N. E. 521], Johnson, J., said:

“It seems to be now generally agreed that this doctrine of ‘last chance’ is a humane modification of the strict and rigid rule which denies to a plaintiff under all circumstances any recovery for the negligence of a defendant, where the plaintiff has himself contributed to the injury by his own negligence. The application of this rigid rule was in many eases found to work injustice, for it would surely be unjust to hold that one should be denied the protection of the law because of acts of carelessness on his part, which were followed by subsequent acts of negligence on the part of another, which latter acts were the proximate cause of the injury. It would, in effect, be holding that where, “for example, one goes upon a railway track without exercising proper precaution as to danger, the railway company would be relieved, thereafter, of the duty to exercise ordinary care for his safety. Where one knows of another’s negligence and the circumstances are such that the former has control of the situation, this knowledge and control impose on him as to his subsequent acts an affirmative duty to use ordinary care to avoid injury.’’’

In 2 Thompson, Negligence (2 ed.) Sec. 1629, the rule is stated as follows:

“Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him they are bound to do so. And, according to the better view with reference to injuries to travelers at highway crossings, as distinguished, from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be, — the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them. ’ ’

In 2 Wood’s Railway Law, p. 1267, Sec. 320, it is said:

“It may be said to be that a railroad company is bound to keep a reasonable lookout for trespassers upon its tracks, and is bound to exercise such care as circumstances require to prevent injury to them. ’ ’ And on page 1269, it is said:
“If, however, he, the engineer, sees a child of tender years upon the track, or any person known to him to be, or from his appearance giving good reason to believe he is insane or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not or would not, and he should, therefore, take measures to stop his train in time to avoid injuring him.”

Some little confusion is created in regard to the duty of an engineer to keep a lookout ahead of his engine or train by the decisions of the courts in Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. 571 ]; Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. 844], and the dissenting opinion in West v. Gillette, supra. These eases are distinguished from Cincinnati, H. & D. Ry. v. Kassen, supra, but do not assume to reverse that ease. An analysis of the cases will show that the apparent confusion is in generalities, rather than in the correct application of the law to an admitted or proven state of facts.

The doctrine of the “scintilla rule” of which Judge Wanamaker said in the case of Gibbs v. Girard, 88 Ohio St. 34, 43 [102 N. E. 299; 1914c Ann. Cas. 1082], “We content ourselves merely with the brief statement that we heartily reaffirm the doctrine. ’ ’ Under this rule it was the duty of the court to submit the case to the jury if there was any evidence on every fact necessary to sustain plaintiff’s cause of action. The evidence shows that the accident occurred at or near to the highway crossing where Simms was ejected, and where all the authorities agree that it was the duty of the person in charge of defendant’s car, to keep a lookout ahead of the ear for persons on the track. Whether there is sufficient evidence was, in the first instance, for the jury, and the jury having returned a substantial verdict for the plaintiff, it was then a question for the court to determine whether the verdict is sustained by sufficient evidence.

At the close of the majority opinion it is said:

“After a careful consideration of all the evidence we think the judgment of the court below is manifestly right, and for that reason we are not authorized to reverse the judgment.”

This is an attempt to apply to this case the doctrine of the “substantial rights” statute which provides:

“In every stage of an action the court must disregard any error or defect in the pleadings or proceedings which does not effect the substantial rights of the adverse party,” etc.

After a case has been submitted to the jury, and a general verdict returned by them, the code provides, See. 11576, that the trial court, on application of the party aggrieved, may grant a new trial, and one of the grounds for which a new trial may be granted is, “That the verdict is not sustained by sufficient evidence,” and Sec. 11576 of the code says: “A new trial is a reexamination, in the same court, of an issue of fact, after a verdict by a jury," etc. All that the trial court is authorized to do, if it is satisfied that the verdict is against the weight of the evidence, is to grant the party a new trial, and if judgment is entered on a verdict all that the court of appeals on error can legally do, if it is satisfied that the verdict is against the weight of the evidence, is to reverse the. judgment and remand the case for another trial. This court held in the case of Mahoning Valley Ry. v. Santoro (not reported), that the common pleas court can only grant one new trial, and the court of appeals can only grant one judgment of reversal, in the same case, against the same party, on the weight of the evidence, which judgment was affirmed by the Supreme Court.

If the trial court was right in entering judgment for the defendant, then the verdict of the jury must have been against the weight of the evidence, as the verdict was for the plaintiff. The majority of this court assume to determine this question from the evidence which they have no right to do, and in doing this they cannot be aided by the answer to the interrogatory.

In the case of Cleveland & E. Elec. Ry. v. Hawkins, 64 Ohio St. 391 [60 N. E. 558], Shauck J., said:

“Its object (the statute authorizing the court to direct the jury to find specific facts), is to enable the court to determine as a matter of law whether the general verdict is right in view of the jury’s conclusions upon questions of fact, not to aid the court in determining whether the verdict is contrary to the weight of the evidence."

The petition avers that Simms was wrongfully ejected from the car and that he received the injury which caused his death through the negligence of the defendant company, neither of these questions is answered by the interrogatory.

The defendant company set up as a defense that Arthur Simms was guilty of contributory negligence in going upon the private right of way of defendant company. The burden of proving this defense was on the defendant company.

Judge Davis, in Drown v. Traction Co. supra, said:

“But if the plaintiff’s negligence merely put him in the place of danger and stopped there, not actively continuing until tbe moment of tlie accident, or the defendant either knew of his danger, or, by the exercise of such diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury, and that of the plaintiff the remote cause.”

The burden of showing that Simms wrongfully went upon the right of way of the defendant company, and that his negligence actively continued and concurrently combined at the time of the accident, with the negligence of the company in producing the injury was upon the defendant. The evidence shows that Simms was drunk while on the car; that shortly after he was pnt off he was discovered lying on the track near to the place where he was ejected; evidently in a helpless or unconscious condition, or he would not have remained there until struck by another car and killed. This question is not determined by the answer to the interrogatory.

Section 10214 G. C. provides: ‘ ‘ The code of civil procedure shall be liberally construed in order to promote its object and assist the parties in obtaining justice.”

An eminent former Ohio judge, recently said:

“They, (the statutes providing for a liberal construction of the code) seem to have proved traps for the unwary, for today it is authoritatively stated that the majority of cases rest upon technical points of practice not involving the merits. '

I do not believe that it was the intention of the legislature, in enacting these statutes, to give to courts the right to correct supposed errors, omissions or other defects in our laws; that would be judicial legislation, and certainly it was not the intention of the legislature of Ohio to make the “substantial rights” statute a “stygian pool,” in which to bury the mistakes of courts; nor was it intended to give to the courts the power to take from even the humblest citizen a right guaranteed to him by the constitution of the state.

Substantial justice is seldom, if ever, attained, except by a substantial compliance with the laws of the state. Some judges seem to have conceived the idea that superior wisdom, is shown in originality, and many of them are original; th’eir idea is that a liberal construction of our practice acts gives to the eourt an unrestrained discretion in the conduct of trials, and that no violation of these acts will effect the substantial rights of the parties. If such rules are to obtain in our courts, then the judges will have as free a hand in the conduct of trials as the chancellors in the early English practice, and no doubt there will be as great a diversion of opinion as there was among the early chancellors.

In Gibbs v. Girard, supra, syllabus:

“The right of trial by jury, being guaranteed to all our citizens by the constitution of the state, cannot be invaded or violated by either legislative act or judicial order or decree.”

Judge 'Wanamaker, said, after referring to a number of cases:

“We content ourselves merely with the brief statement that we heartily reaffirm the doctrine. To hold otherwise would not only commit but permit, in a multitude of cases, a sinister and indirect invasion and usurpation of the right of trial by jury. A legislative act impairing it would be clearly unconstitutional. How, then, can a judicial order or judgment that indirectly but most effectually defeats the right of trial by jury, be otherwise than an invasion and violation of a party’s rights? The right is merely to have questions of fact determined in the first instance by a jury under proper instructions of the eourt appropriate to the issues and the evidence.”

In the ease at bar the province of the jury has been invaded by the court, and the plaintiff has been deprived of the right of trial by jury, which is guaranteed to her by the constitution of the state. This case will exemplify the effect of the narrow construction placed upon the constitution of Ohio, which construction has sent many a worthy causé, to an untimely grave.  