
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Kernochan Adm’x.
    
      Risks assumed by one in hazardous employment — Contributory negligence — Fellow servants — Bill of exceptions — Entry, how properly made — Bill of exceptions erroneously dissmissed — Judgment of affirmance by the court below, reversed by this court, when.
    
    1. One who engages in a hazardous employment assumes all risks incidental thereto ; but is not bound to anticipate1 such dangers connected therewith, as arise solely from the negligence of others, not in law his fellow servants ; and therefore his failure to foresee and guard against dangers of the latter class, does not raise against him, nor his personal representatives, a presumption of contributory negligence.
    2. An entry in the following terms: 1 ‘This day came the defendant and filed its bill of exceptions, duly allowed, signed and sealed, and the same at its request is ordered to be made a part óf the record in this case, all of which is done within the fifty days allowed, ” made on the journal of a court of common pleas, shows with sufficient certainty that the bill of exceptions therein referred to, was. presented to, and signed, sealed and allowed by, the trial judge.
    
      3. Should a circuit court erroneously dismiss, or erroneously decline to consider, a bill of exceptions on the ground that it had Dot been legally allowed, and thereupon affirm the judgment below, such judgment of affirmance will be reversed by this court, without passing on any question arising out of the bill of exceptions, and the cause remanded to the circuit coui’t with instructions that it consider and decide all questions that may arise out of the same.
    (Decided December 1, 1896.)
    Error to the Circuit Court of Crawford county:
    This action was commenced in the court of common pleas of Crawford county by the defendant in error, to recover of the plaintiff in error damages for the death of the intestate, her husband, caused, as she alleged, by the negligence of the plaintiff in error.
    She prevailed in the court of common pleas ; the judgment there rendered in her favor was affirmed by the circuit court. Whereupon the present proceedings were brought in this court to reverse both judgments. The facts will be stated in the opinion of the court.
    
      I). Dirían; Goidder & Holding and John T. Dye, for plaintiff in error.
    The court erred in overruling demurrer to amended petition.
    The allegation in plaintiff’s petition that decedent stopped upon the track before the backing train and while so standing there, in the dark and obscurity' occasioned by another passing train, emitting steam, ringing its bell, and making such noise to drown the noise of the backing train; this as being on the yard tracks, and he being a employe of the Pennsylvania Company, put decedent in the attitude where it was a part of his duty to observe and know the location of the working trains within the yards, and the allegation that he was run down by a backing train while standing on the track behind it, is a clear allegation of his own contributory negligence. We urge that the principles laid down in R. R. v. Barber, 5 O. S., 541, are applicable to the pleading in the case at bar. That it being his duty to observe the situation, condition, and movements of the trains in the yard, plaintiff below, in her pleading must not only show that he did not know and observe and keep out of the way, but as in the case above cited, she must show that he was not in fault in not knowing. Railroad Co. v. Nolthenius, 40 Ohio St., 376; Coal & Car Co. v. Norman, 49 Ohio St., 598 ; Railroad Co. v. Snyder, 24 Ohio St., 670.
    The circuit court erred in refusing to recognize the bill of exceptions as a part of the record and considering and passing upon the errors appearing therein.
    The allowance of the bill of exceptions must be governed by sections 5301 and 5302 of the statute as they stood at the commencement of this action. Hence, 5301 as it now stands does not apply. See par. 79, Rev. Stat., and State v. Rabbits 46 Ohio St., 178, but it does apply as passed April 19, 1893, Vol. 90, 203, and section 5302 as passed March 22, 1892, Vol. 89, 125.
    The form of this order is one that has been in use in the courts of this state since the adoption of the code, and I have not heretofore known of this form having in our courts been in any way criticised. Shillito v. Thacker, 43 Ohio St., 63.
    Since the case of Bothe v. R. R., 37 Ohio St., 147, and Mitchell v. Thompson, 40 Ohio St., 110, and even before that, it had and has become pretty well understood that where a thing has been done and the party has fully performed his duty, he cannot be sacrificed to the blunders of court officials. Under the liberal constructions provided by the Code immaterial variances are to be disregarded.
    
      P. W. Poole and Finley, Beer c& Bennett, for defendant in error.
    The reason of the circuit court for finding that a bill of exceptions was not duly allowed and signed does not appear in the record, and counsel for the railway company took • no steps to make it appear.
    The criticism of the circuit court appears in the entry upon its journal. If it made any further criticism to the hurt of the railway company, which this court might or could .review, the plaintiff in error should have preserved it in a bill of exceptions.
    At the time of the trial the statute required the party excepting to the overruling of a motion for a new trial because the verdict is against the law and. the evidence to reduce his exceptions to writing and present the same to the trial judge for allowance within fifty days after .the overruling of the motion for a new trial; 90 Ohio Laws, 204; 89 Ohio Laws, 125.
    The entry states that “the defendant filed its bill of exceptions duly allowed, signed and sealed.” This is the conclusion of the clerk of the court.
    There is no entry showing that the bill of exceptions was tendered, or presented, to the trial judge, that he found it to be true, that he allowed and signed it.
    The clerk states that the defendant filed its bill of exceptions, and states further his opinion that it had been “duly allowed, signed and sealed.”
    The unauthorized, unofficial statement of the clerk that a bill of exceptions had been duly allowed and signed, not being the act of the court, is no part of the record. Baker v. Swift, 87 Ala., 530; Hill v. Bassett, 27 Ohio St., 507; Heffner v. Moyst, 40 Ohio St., 113.
    The paper writing purporting to be ■ a bill of exceptions, signed by Judge Smalley, March 3rd, 1894, and which is printed in the Record, is not shown by any entry on the journal of the court of common pleas to have been tendered to, allowed or signed by the trial judge or any other judge. It is an unauthenticated paper which the railroad company dumped into the case “by main • strength.” It cannot substitute it for the bill of exceptions filed March 16th, 1894, which it has abandoned. Bowen v. Gazlay, 8 C. C. Rep. 256; Shillito v. Thacker, 43 Ohio State, 63; Wagner v. Zeigler, 44 Ohio State, 59. The circuit court “find no error in the record in the court below. The reason given by the court is no part of the.action of the court. The reason may be a bad one or a good one — no difference which — yet the finding is that there is no error in the record in the court below, and it is therefore considered that the judgment of the court of common pleas be and the same hereby is affirmed. The reasons announced by the court to sustain its decision constitute no part of the decision. Bank v. Table Mt. Co., 12 Cal. 408; Davidsons. Carroll, 23 La. Ann. 108; 1 Freeman on Judgments, sections 2, 249; Davis v. Millandin, 17 La. Ann. 15; 87 Am. Dec., 5, 7; 27 S. C., 472; 49 Texas, 243; 2 Thompson on Trial Section 2781.
    In the absence of a bill of exceptions it will be presumed that evidence was offered, if any was necessary, to show that a bill of exceptions was not allowed, if the fact does not appear upon the face of the record. The evidence may have been objectionable, and if it had been objected to, excluded ; but the plaintiff in error could waive all objections to the manner of proof. Whether the evidence was legitimate or whether it was sufficient, the court decided.
    Broom’s Legal Maxims, 100. “This is a maxim of the common law, and the dictate of common sense.” Shepherd v. Jones, 71 Cal., 223; S, C. 16 Pac., 711; Whisler v. Lawrence, 112 Ind., 229; S. C. 11 West., 238; State v. Shea, 95 Mo., 85; S. C. 14 West. 747; Chicago v. Porter, 72 Iowa, 426; S. C. 14 West. 362.
    Where the evidence is not in the record the court will not reverse, if on a supposable state of facts, the rulings of the court were right, B. & O. R. R. Co. v. Bowen, 104 Mo. 88; C. H. & I. R. R. Co. v. Clifford, 113 Ind. 460; S. C. 13 West., 384; 2 Thompson on Trials, § 2777. It will be assumed in the absence of proof to the contrary that every fact essential to the validity of the judgment was proved in the court below. Pilcher’s Succession, 39 La. Ann., 362; Miller v. Cappel, 39 La. Ann., 881; Jones v. Adams, 19 Nev. 78; Stevens v. Rose, 13 West. 765; Thompson v. Reno Sav. Bank, 19 Nev. 293.
    Where the appellate court has no means of ascertaining from the record the state of facts upon which a verdict was rendered, the action of the lower court with respect thereto must be presumed to have been right. Wright v. Smith, 81 Va., 777.
    Upon the disposition of the motion against the alleged bill of exceptions, the circuit court was the trial court, and every presumption is in favor of the correctness and regularity of the trial court, and error cannot be presumed. Bedford v. Ruby, 17 Neb., 98; Latham v. Schaal, 25 Neb., 535; S. C. 41 N. W., 354; Pardy v. Montgomery, 77 Cal. 326.
    It must be assumed upon review, where it is not shown to the contrary, that the court in admitting evidence, had proof of the matters essential to make it admissible. 1 Thompson on Trials, Section 118; 70 Md., 328.
    It makes no difference that a written motion to strike the alleged bill of exceptions from the files does not appear in the record. A verbal motion was sufficient, or, in the absence of a motion, the finding of the court, althoug’h not called to-the attention of the court by motion. It will be presumed, if the record does not show to the contrary, that the parties at the trial waived the objection and the want of the motion. 39 Minn. 365, S. C. 40 N. W., 265; Wyvell v. Jones, 37 Minn. 68; S. C. 33 N. W., 43.
    The evidence upon which the court find that a bill of exceptions was not duly allowed and signed is not shown by the record, and without it, or it being made to appear that no evidence was offered, the court cannot determine that the judgment was erroneous. Miller v. Simms, 1 C. S. C. Rep., 485; Armstrong v. Clark, 17 Ohio, 495, 497; R. R. Co., v. Collet, 6 Ohio State, 182, 186; Dallas v. Ferneau, 25 Ohio State, 637.
    
      In the absence of a bill of exceptions containing the evidence or showing that no evidence was offered, the reviewing court will infer that the evidence was sufficient to sustain the finding.
    
      Mathis v. McCord, Wright, 647; Wilson v. State, 2 Ohio St., 319; Bethel v. Woodworth, 11 Ohio St., 393, 397; Bliss v. Krauss, 16 Ohio St, 60; Smyth v. Sprout, Wright’s Rep. 757; Hill v. Bassett, 27 Ohio St., 598; Lathan v. School, 25 Neb. 535.
    If any supposable evidence would sustain the finding and judgment of the court, it will be presumed such evidence was given in the absence of a bill of exceptions showing that it was not given. A revisory court never presumes that an inferior tribunal has erred. The presumption is that it has not. Until the contrary is shown by the record, the court below is presumed to have acted and decided correctly. Kitchen v. Loudenback, 48 Ohio St., 177, 190; Champlain First Nat'l Bank v. Wood, 45 Hun., 411; Christy v. Douglas, Wright’s Rep., 489; Wagers v. Dickey, 17 Ohio, 440; Taylor v. Fitch, 12 Ohio St., 169, 175; Prescott v. State, 19 Ohio St., 188; Coil v. Willis, 18 Ohio, 30, 31.
    The maxim ‘1 omnia presitmuntur rite et solemnitur esse acta donee probetur in contrariam has its full and appropriate application to the finding and judgment complained of. Broom’s Legal Maxims, 729; Ide v. Churchill, 14 Ohio St., 378.
    If the finding was correct, the judgment was correct.
   Bradbury. J.

Two questions, only, arise on the record, 1. Did the petition, as amended, state the cause of action. 2. Did the circuit court err in holding that the bill of exceptions taken in the court of common pleas by the plaintiff, “was not duly allowed and signed” * * *? The amended petition is in the following words :

The plaintiff says:

“On the 9th day of February, A. D. 1892, she was duly appointed and qualified and letters of administration on the estate of James Kernochan, deceased, were issued to her by the probate court of Crawford county, Ohio, and she is now the duly qualified and acting administratrix of said estate1. The defendant is now, and at the time hereinafter mentioned, was, a corporation, duly incorporated under the laws of the state of Ohio, and owned and operated a railroad located in and passing through thevillage of Crestline in this county from the north eastern portion of said village to the southwestern portion thereof, with the cars and locomotives thereon.

“Át the time of the commission of the grievances and wrongs hereinafter complained of, and for more than twenty years prior thereto, a large building known as the Continental hotel was used by the defendant and by the Pittsburgh, Fort Wayne and Chicago railway company as a passenger station and the same was also at the same time used for hotel purposes. During all the same time three of the tracks of defendant’s railroad have been located immediately west of said Continental hotel. A hotel known as the Gibson was, during all said time, located a few feet west of said last named tracks and west of said Continental hotel. During all. said time two of the' tracks of the Pittsburgh, Fort Wayne and Chicago railway have been located immediately south of said Gibson house and said Continental hotel. At and during all of said time immediately south of the last named tracks and east of the three tracks of defendant’s railway there was and had been located a building used by both of said companies as a telegraph office, and immediately south of the building last named two or more tracks of the Pittsburgh, Port "Wayne and Chicago railroad were located and which crossed'the three tracks of the defendant’s railroad. About four rods south of the last named crossing and east of the said three tracks of defendant’s railroad during all said time was located the freight houses of said railroad companies with other tracks of said defendant in front thereof used daily by said defendant in shifting cars from its railroad to the Pittsburgh, Port Wayne and Chicago railroad and for loading and unloading freight. At and during said time one of the principal streets of said village running with and south crossed the three tracks of the defendant’s railroad a few feet south of the crossing last above described. A considerable portion of said village of Crestline lay south of said crossings, and said street was in daily use and much traveled and frequented by the inhabitants of said village and by country people coming into and going out of said village. All of said tracks and crossings are, and always have been much used by said companies; and the employes of said companies and the public generally have been in the habit of passing over said tracks and crossings at all the points above described at all hours of the day and night with great frequency, so that the same became and on the 8th day of January, A: D. 1892, was a public highway.

“The plaintiff in further amendment of her petition says that said James Pernochan was on said Thoman street at the east line thereof when he was struck by said train and killed.

“The said James Kernochan was employed by the Pennsylvania company, lessee of the Pittsburgh, Port Wayne & Chicago Railroad, as a car inspector, and on the night of January 8th, 1892, he was engaged in the discharge of his duties as such car inspector on the tracks of said Pittsburgh, Port Wayne & Chicago railroad, west of the tracks of defendant’s railroad. Between the hours of seven and eight o’clock p. M., it became his duty as such car inspector to pass over the tracks of defendant’s railroad at a point between said telegraph office and said ’freight house.

“At about seven o’clock of said evening the local freight train of defendant was pulled into Crest-line from the North, and stopped on the west track above described in front of the Gibson House, and north of said railroad crossings. Said train was then cut and the locomotive with some of the cars attached thereto, passed over said crossings to said defendant’s freight house, and was there kept for some time loading and unloading- freight and shifting cars.

‘ ‘After doing said work, said cars pushed by a locomotive were negligently backed to couple on to the rear portion of said train left standing as aforesaid on the defendant’s track in front of the Gibson House. Said locomotive and cars so backed were by said defendant negligently put, and then were, in the hands, and under the sole control of inexperienced and unskillful servants. No light or lights were displayed at the rear end of the portion of the train being so backed, and no servant of said company was stationed on the rear car thereof to pi event danger or accidents, and neither the conductor nor the engineer of said train was upon said portion thereof so being backed, but said conductor and engineer had left said train and were out of sight and hearing of the same, and no signal of any kind was given to warn persons who might be upon or about to cross defendant’s said tracks, upon or near said crossings, that said locomotive and ears were being backed, but the same was by said defendant negligently and unlawfully omitted. While said locomotive and cars were being so unlawfully and negligently backed, the said James Kernochan was compelled as aforesaid in the discharge of his duties as aforesaid, to cross the tracks of said defendant’s railroad, at or near the south crossing above described, at which time a passenger train was being run on the east track of defendant’s 'railroad in southerly direction, immediately in front of said James Kernochan, with steam escaping and the bell of the engine being rung, so that the noise made thereby prevented said James Kernochan from hearing the locomotive, and the cars so as aforesaid, approaching from the south and so as to obscure the light from said west track, rendering the same entirely dark, so as to prevent said James Kernochan from seeing t'he rear or any other portion of the cars and locomotive so as aforesaid being backed towards the rear portion of said train so as aforesaid left standing in front of said Gibson House.

“The said James Kernochan had no knowledge or means of knowledge that said cars and locomotive were being so backed from the south, and the said train passing in front of him compelled him upon peril of his life to stop on said track for a moment, and while he so stopped, he was, without any fault or negligence on his part, and wholly by the negligence of the defendant, run over by said ears and locomotive, so as aforesaid being negligently backed, and instantly killed.

“At the time of his death said James Kernochan was twenty-three years old, was an active, strong, healthy man, temperate, of good habits, standing well with his employer, and capable of earning good wages. He left surviving him this plaintiff, as his widow, who was at the time of his death dependent upon him for support. She has been, injured by his death to the amount of ten thousand dollars.

“Wherefore plaintiff as administratrix of said estate asks judgment in the sum of ten thousand dollars. ’ ’

Plaintiff in error contends that the averments of the petition raise a presumption against the decedent of contributory negligence. We do not think this is true. The decedent was engaged in discharging the duties of his occupation, that of car inspector for the Pennsylvania Company, which company and plaintiff in error used in common the yard where the accident occurred, as the exigencies of the business of each required. Of course the deceased' assumed such risks jis grew out of the nature of his occupation, and, therefore, if his death was due to an accident that was incidental thereto, or was caused by the negligence of. another, for whose fault he is chargeable, his administratrix could have no remedy. But one who is engaged in a hazardous occupation, no more assumes the risks that may arise from the negligence of others, than does the person who engages in occupations comparatively safe. The duties of the decedent, as car inspector, mustj of necessity have been performed in the yards of these railroad companies. The cars must be inspected while standing upon some of the tracks therein, — side or main- tracks. He must pass along’ or across these tracks, or near them of necessity. It was possible that moving cars might at any time pass along them. If. they did so without any one being in fault and injured him, no recovery could be had, for this was a risk incidental to his employment.

But he was not bound to anticipate that a locomotive and ears would be placed in the hands of inexperienced or unskillful servants, and then backed through the yards without a light displayed, or a person stationed on the rear end of the moving train to give warning of its approach, especially at a moment when another train with its bell ringing and steam escaping, so as to drown the noise made by the backing train, was also passing; and these are the negligent acts that are alleged to have caused the decedent’s death. Not being bound to foresee and guard against this course of conduct on the part of the plaintiff in error and its ' servants, his failure to do so, though it may have directly contributed to his death, was not negligence and should not defeata recovery.

During the trial of the cause in the court of common pleas, after the plaintiff in that court' had closed her testimony, the railroad company moved ■the court to direct the jury to return a verdict in its favor, because the evidence introduced by her raised a presumption of contributory negligence. This motion being overruled, the plaintiff in error introduced its evidence. The trial resulted in a verdict for the plaintiff below.

The railroad company moved for new trial, assigning as reasons therefor a number of distinct grounds of error, among them, the action of the court in overruling its motion to direct a verdict, that the court erred in admitting, and also in rejecting evidence; that the court erred in the instructions it gave to the jury, and in refusing to charge as requested; that the verdict was excessive ; and that it was contrary to the weight of the evidence. This motion was overruled, and thereupon the railroad company prepared a bill of exceptions embodying all the evidence, the charge of the court and its several rulings in admitting and rejecting evidence. This was signed by the trial judge in due time and the following entry in respect thereof placed upon the journal of the court.

“This day came the defendant and filed its bill of exceptions, duly allowed, signed and sealed, and the same at its request is ordered to be made a part of the record in this case, all of which is done within the-fifty days allowed.”

The cause was taken to the circuit court on error; that court declined to consider the errors assigned in the bill of exceptions, because it found that the bill of exceptions “was not duly allowed and signed, and for that reason find no error in the record of the court below.” * * *

This action of the circuit court is assigned as error in this court.

The plaintiff in error was, of right, entitled to the judgment of the circuit-court upon the assignment of error, if such bill of exceptions, being legally perfected, was before that court.

Suggestion was made in argument that there might have been more than one bill of exceptions taken in the trial court, and that the one the circuit court declined to consider may not be the one that is disclosed in the record brought to this court. The bill of exceptions appears to have been signed by the trial judge, March 3, 1894, it was filed in the court of common pleas, as the file, mark shows, on the 5th of March, 1894, and the entry on the journals of that court of its allowance, was on March 12,1894, seven days later. This difference of dates is, of course, compatible with the suggestion that more than one bill of exceptions mighthave been taken; on the other hand, it might occur in the case of a single bill of exceptions.

An examination of the whole record does not give the slightest corroboration to the suggestion that there was more than one bill of exceptions. The journal of the circuit court, setting forth its refusal to consider the bill of exceptions, shows that its action was based upon the identical record and papers now on file in this court. That court having before it nothing except this record, necessarily acted solely thereon. That record, we have seen, affords no ground to believe that more than one bill of exceptions was ever taken in the action. It is therefore idle to suppose the action of the circuit court was influenced by that theory, and, the suggestion 'should be dismissed as totally unfounded.

In Hill v. Bassett et al. 27 Ohio St., 597, it was held that, “Before a paper purporting to be bill of exceptions can be regarded by a reviewing court, upon error, as a part of the record, it must appear from the record, outside of such paper, that a bill of exceptions was, in due time, tendered to, allowed, signed, and sealed by the court, and made part of the record; and the paper in question must be identified, with, reasonable certainty, as the bill of ex-exceptions which was thusmadepartof the record. ”

This bill of exceptions was identified with reasonable certainty; it was signed by the trial judge and bears the file marks of the trial court.

The journal of the court of common pleas made in the case, recites that the “defendant came and filed its bill of exceptions, duly allowed, signed, and sealed, and the same at its request was ordered to be made a part of the record in this case. ” * * * No ambiguity arises out of this language, it necessarily implies that the bill of exceptions had been presented to, allowed, signed and sealed by the trial ]udge or some judge authorized to act in his stead. It could not have been signed by such judge unless presented to him, and it could not have been ‘ ‘duly allowed, signed and sealed” by any other than a judge having authority to do so. We think the journal entry shows that every act required by the statute to give validity to. the bill of exceptions was performed. The bill of exceptions, having been duly allowed, was before the circuit court, and the plaintiff in error was, of right, entitled to the judgment of the circuit courts upon the questions it presented. The declination of that court to consider them violated this right, and was for that reason prejudicial to the plaintiff in error. It is no answer to this view of the case to say that the circuit court might, or even should, have affirmed^ the judgment below, because the rulings of the trial court, as disclosed in the bill of exceptions were correct. Whether this court should reverse a judgment of the circuit court for striking a bill of exceptions from its files, or for refusing to consider it, where it was made to appear that the questions it presented were frivolous, need not now be considered. No claim is made that the questions arising on the bill of exceptions under consideration are of this character.

Judgment reversed and remanded to the circuit court for further proceedings.  