
    Robert B. Potter, Receiver of the Atlantic and Great Western Railway Company v. Ira H. Bunnell.
    1. It is not essential to the validity of an order granting leave to bring an action against a receiver, that notice of the application for the order should be given to the parties in the case in -which the receiver was appointed. Notice of such application to the receiver is sufficient.
    2. Where a demand for a second trial is duly made under the act of April 12, 1858, providing for second trials, and the “ opinion of the court shall be adverse to the allowance of the second trial,” under the provisions of the act of March 31, 1859, supplementary to the act of April 12, 1858 (S. & C. 1159), either party may appeal to the district court.
    3. Such appeal gives the district court jurisdiction of the case; and where the parties proceed to trial and final judgment in that court, without questioning the ruling of the common pleas disallowing a second trial, the judgment of the district court cannot be reversed for error of the common pleas in disallowing a second trial.
    4. Where a railroad company is authorized by its charter to divert the location of a highway when it is necessary in the construction of its road, the right must be exercised with due regard to the public safety; and the company will be liable for injuries sustained by travellers on the highway, by reason of its negligence in not erecting proper barriers to guard them from driving into cuts or excavations made in the highway by the company, where such travellers are not in fault themselves.
    
      5. An action for suet injuries against a receiver exercising the franchises oi the company, must be determined by the principles applicable to a lita action against the company when it operates its own road.
    Error.to the district court of Trumbull county.
    March 28, 1867, the court of common pleas of Trumbull county appointed Robert B. Potter receiver of the Atlantic and Great Western Railway Company, with power to operate the road, make improvements, aud carry on the general business of the company. During the summer and fall of 1867, the receiver, by his employés, took gravel, for the purpose of repairing and completing the road, at a place near the road where the company had done likéwise before that time. In doing this, an excavation was dug in the side of a hill over which there was a public highway, in such a manner as to make the excavation across the highway forty feet from the top to the bottom. The highway had been diverted around the hill by the company, and guards had been placed in the road to protect travellers; but the guards, sometime before the accident complained of, had been removed. In the night of November 25, 1867, Ira II. Bunnell was travel-ling on the highway, without any knowledge that it had been changed, and drove along the old highway over the hill, and was precipitated down the excavation, and was thereby severely injured. The receiver refused to' compensate him for the injury. lie then applied, on notice to the receiver, to the court of common pleas of Trumbull county, for leave to bring an action against him as receiver. The leave was granted and this suit was brought in the same court. The court ordered the receiver to appear and defend, which he accordingly did.
    At the February term, 1870, the action was tried to a jury, whq returned a verdict in favor of Bunnell for $6,000, which sum the receiver was ordered to pay out of the money in his hands as receiver.
    Potter then demanded a second trial, under the statute allowing second trials in cases where either party has the right, under the code, to demand a trial by jury. But the court, being of opinion that tbe parties were not entitled to a second trial, refused to allow such second trial. He then in due form appealed the case to the district court.
    At the May term, 1870, the case was tried in the district court, and resulted in a judgment for $4,000, in favor of Bunnell. A motion for a new trial was overruled, and exceptions were duly taken to raise the questions considered in the opinion in the case.
    The case came to this court on a petition in error, and the errors assigned are as follows :
    1. The district court had no jurisdiction of the case, by reason of iiTegularity in the manner of commencing and conducting the action.
    2. The common pleas erred in disallowing a second trial, and the district court erred in not dismissing the case for that reason.
    
      3. The decisions of the courts below were not sustained by sufficient evidence, and were contrary to law.
    4. The court erred in permitting evidence to be given, that was objected to by the defendant below.
    5. The court erred in overruling the motion for a new trial.
    The last assignment of error brought in review the findings of the court upon the law and the evidence. But the evidence is too voluminous to be set out in full. A sufficient statement of the case, however, is given to present the material questions decided by the court.
    
      R. P. Banney and J. W. Tyler for plaintiff in error:
    1. The decision of the district court was not sustained by the evidence, and was contrary to law, and should have been in favor of the defendant and not the plaintiff below.
    The company had the power to divert the highway by virtue of the 15th section of the act of February 11, 1848, regulating railroad companies. 46 O. L. 40; 49 O. L. 444; S. & C. 327-330.
    If, then, the change of the location of the highway was legally made by the company, the land over which it formerly ran became divested of this public easement. Under these circumstances the railroad company acquired possession of this land from the owner thereof, opened its gravel bank and thus continued in possession, until, by a suit of its creditors, that possession, was transferred by order of court, to the hands of a receiver. But whether the company had strictly complied with the law in the change of this road, or not, it had done so in fact, and had destroyed the old road, so that when the receiver took possession of the railroad and property of the company, the highway had been diverted around the hill and the old road totally destroyed, the hill for a long time having been used for a gravel bank. The receiver took possession of this hill as one of the gravel banks of the company, and used it as such; all of which he had authority to do, for the completion of the construction of the railroad, by the order of court.
    Under these circumstances, we contend that he as receiver occupied this gravel bank, although a road passed over it before his day, with like relations and obligations to the highway then in use, adjoining this field, so in his possession, as would appertain to any proprietor of land adjoining a public road. '
    The owner of land adjoining a highway is not bound to take precautions against injury to persons straying from the highway, however innocently; nor is he at all restricted in the use of his land, except so far as it immediately adjoins the highway; nor is he bound to fence out travellers. The brink of this gravel pit did not adjoin the highway.
    If the above statement of the law can be maintained as the true legal doctrine, then it was not the duty of the receiver of this railroad property to fence the highway, or put up obstructions to prevent Bunnell from straying out of it. Hardcastle v. The South Yorkshire Railway Company, Hurlstone & Norman, 74; Binks, Adm'r v. The South Yorkshire Railway Company, 3 Best & Smith, Q. B. (113 Eng. Com. Law. Rep.) marg. p. 244; Hansell v. Smyth et al., Com. Bench Rep. (N. S.) 731; Jordin v. Crump, 8 M. & 
      W. 782; Howland v. Vincent, 10 Metc. 731; Dunlap v. Knapp, 14 Ohio St. 68.
    What the company did, with reference to this road, priol to the appointment of the receiver, should not be blended with his acts subsequent to his appointment.
    2. Although it may not be denied that suit can properly be brought against a receiver in certain cases, by leave of, and under the control of the court appointing him, and for whom he is acting, yet we contend that the motion or application, upon which such leave is granted, should be filed or made in the cause wherein such receiver was appointed, and that the parties thereto should have legal notice of the filing of such motion or application, and of the time when the same is to be heard.
    When a receiver, as such, is sued, he is not personally affected thereby, but the funds in his hands are subject to the payment of any judgment or decree which may be rendered against him. Hence the parties to the suit for whom he holds these funds are the real parties interested, and it seems perfectly apparent «upon principle that such should be established as the true practice.
    The code we are satisfied justifies this view. It gives no authority to commence suits by filing motions. A motion can only be filed in some cause already pending. How then could leave to sue Eobert B. Potter, as receiver, be obtained by filing a motion in a cause not before the court ?
    But the code does give authority to the court to allow the receiver to bring or defend actions; but that leave must be obtained in some regular way; and what way could be legal and regular except by some proceeding in the cause wherein the persons are parties for which he holds the property and fund to be affected in the final result %
    
    Now inasmuch as this suit was commenced without a motion ever having been filed in the case in which the receiver was appointed, and without any of the parties to that case ever having had any notice of its pendency, we claim that the entire proceedings in this cause have from the beginning been irregular and contrary to law.
    
      3. The court of common pleas should have allowed the rev .eiver a second trial on his demand therefor; and the district court erred in not dismissing the appeal on the ground that a second trial should have been so allowed. S. & C. 1155; Code, secs. 256, 263, 605.
    The issues of fact were joined for the recovery of money; therefore, either party had a right to demand a trial by jury; hence either party had a right to demand a second trial; and inasmuch as the defendant did demand a second trial, the court of common pleas erred when it refused to grant such, trial. The district court could not obtain jurisdiction of this cause by appeal unless the parties had not the right to demand a trial by jury. S. & C. 1157, 1159; MoCrory v. Parks, 18 Ohio St. 1.
    4. The district _,ourt should have sustained the motion to set aside the judgment rendered therein and for a new trial. This we have already shown.
    5. The district court did palpable injustice in refusing a new trial on the ground of newly discovered evidence. This evidence could not with reasonable diligence have been discovered and produced at the trial; and it was material. Rex v. Wilkes, 4 Burr, 2539; President, etc. v. Patchen, 8 Wend. 47.
    
      A. Hart and Hutchins dc Olidden for defendant in error:
    1. Was the case one where the receiver was entitled to a second trial; and did the court err in refusing this, and holding it to be a case for appeal 2
    The receiver was, as is commonly expressed, an officer of court — the arm of the court. He operated the road at the behest of the court. The fund in his hands was so much money deposited in court, and subject to its order.
    The suit instituted by Bunnell, whatever it was in form, was in fact, a proceeding to apply a portion of the moneys in court to the payment of the damages which he had sustained. The intervention of a jury was simply for the ascertainment of the amount due the plaintiff. Bunnell’s prayer was, in reality, that the court would order the receiver to take $10,000 out of the moneys in his hands, and apply it to the payment of his claim. The receiver denying that he had any claim, or had sustained any damages, this question as to the fact of injury and amount was submitted to a jury, precisely as any issue of fact may be submitted in a case in chancery. In all its essential features it was a proceeding in equity.
    It is not every case where the object of the suit is the recovery of money, that is triable by a jury. McCrory v. Parks, 18 Ohio St. 1.
    Again, if it be admitted that there was one issue or branch in the case properly triable by jury, it must also be conceded that everything relating to the fund and its payment was exclusively within the province of the court, and to this the right of appeal attached. The receiver having taken his appeal, thereby carried the case into the district court, and after getting into that courtj making no motion to dismiss the appeal, but voluntarily going to a trial Upon the whole case upon its merits, caññot now complain. The district court having properly obtained jurisdiction of all that part of the case which related to a proceeding to charge the fund (which was the real substance after all), and the payment of the claim out of the fund in court, as a necessary incident to that j urisdiction and power, had a right to proceed and ascertain the amount of money to be paid, or the compensation to which Bunnell was entitled; and having done so, the receiver is bound by the findings and decree in the premises.
    2. The finding and judgment of the district court are not contrary to the law and the evidence.
    The right of a receiver to sue or be sued, is fixed by the code, sec. 256. This section is comprehensive. It effectually negatives all theories that the receiver is suoh a public officer that he cannot be sued; or, on the other hand, that he is an agent of somebody, and can therefore charge over all liability to his principal, the court which appoints him. As a consequence of the power and authority of the receiver, there attaches, at the same time, the same liabilities precisely which theretofore were borne by the railroad company. Ballou v. Farnum et al., 9 Allen, 47.
    
      The evidence in the ease shows the plaintiff in error, or the fund in his hands, to be liable for the damages the plaintiff has sustained, upon the ground of negligence or wrong.
    The plaintiff in error had no right to take gravel from the bank in question, if, by so doing, he interfered with the public highway. He could not change the line of the highway or obstruct it, except for the purpose of constructing the railway. The railroad having been built long before the time of taking out the gravel, it was not done for any such purpose, and the defendant was guilty of an illegal act in reference to the public highway, a.nd the whole proceeding, and its continuance by the receiver, was unlawful.
    Even admitting the receiver had a right to change the road for the purpose of taking out the gravel, still such change was only temporary, and during the time of such change, he must protect the public from danger by putting up suitable guards and warnings, and not pull down guards already put up and leave them down.
    By the statute law of Ohio then in force, the receiver was liable for any injury sustained by Bunnell in consequence of the change of the highway, whether he (the receiver) was guilty of negligence or not.
    We deny that the receiver had a right to take out gravel from the bank, even though it should change or alter the highway. We think section 33 (S. & O. 279) refers solely to the original construction- of the road, and not to repairing it after it is once built.
    Even if the owner of the fee of the gravel hill had given the receiver the right to take gravel, it conferred no power upon the receiver. The owner of the fee held the land subject to the rights of the public to use the highway. He could not change the line of the road any more than a stranger. The statute (S. & C. 1293, sec. 29) points out the mode of changing the line of the highway on one’s own land.
    Upon the subject of negligence the authorities are numerous : Shearman & Redfield on Negligence, secs. 2, 7, 360, note, 366, 367, 376, 391; Indianapolis and Cincinnati R. R. v. Logan, 19 Ind. 294; Judson, Adm'r v. New York 
      
      and New Haven R. R. Co., 29 Conn. 434; Inhabitants of Vesey v. Penobscot R. R. Co., 49 Maine, 119; 59 Penn. St. 259; 1 Redfield on Railways, 538, 544.
    But whatever may have been the decisions of courts upon this subject, the whole question is fully settled by the statute of Ohio, and that the receiver is liable to respond in damages for the injrn’y which Bunnell has sustained, whether there was negligence or not. 64 O. L. 30, sec. 11.
    3. The district court did not err in not granting a new trial on the ground of newly-discovered evidence. This testimony did not go to the right of action, the receiver was not taken by surprise on the trial, and the testimony could have easily been discovered and produced at the trial by ordinary diligence. Under the circumstances we think the court acted wisely and in the exercise of a sound discretion in refusing to open the case and grant a new trial.
   Day, J.

Under the first assignment of error, the jurisdiction of both the courts below is questioned, on the ground that the leave to bring the action was obtained without filing a motion for that purpose in the case in which the receiver was appointed, and without notice to the parties in that case. This is claimed to be essential, for the reason that a recovery is not sought against the receiver personally, but from the fund in his hands, in which his cestui que trusts are interested.

The receiver was exercising the franchises of the railroad company, and had the exclusive and independent control of the business placed in his hands. He was answerable to the same extent as the company would have been if it had continued to conduct the same business, and, but for the protection afforded to him as an officer of the court, he might be sued in the same manner the company could have been. He is empowered by the statute to bring and defend actions, under the control of the court, in his own name as receiver. (Code, sec. 256.) The court granted leave to bring the» action against him as receiver, and ordered him to answer thereto. His official protection from suit, whatever it may have been, was thus removed. After the receiver complied with the order of the court, by answering to the action, there was surely no want of jurisdiction. Nor was it essential to the validity of the order, that it should be applied for pn notice to the parties in the case in which the receiver was appointed. It is sufficient that the leave was granted by the court having control of the receiver on notice to him, against whom alone the cause of action exists, and against whom the action must be brought.

It is claimed, under the second assignment of error, that the action was one in which either party had the right to demand a trial by jury; and that, therefore, the district court could not acquire jurisdiction thereof by appeal.

No special mode of proceeding is prescribed by the statute for conducting actions which a receiver is authorized to bring or defend. It might, therefore, be reasonably inferred that they are to be tried and determined by the ordinary rules applicable to actions under the code. But it is not necessary for us to determine, in the ease before us, whether parties to this class of actions may have in any case the right to demand a trial by jury.

The code provides (sec. 263) that “ issues of fact arising in actions for the recovery of money, or specific real or personal property, shall be tried by a jury.” The statute of 1858 (S. & C. 1155) provides “ that a second trial may be demanded and had in any civil action,” in which the common pleas has original jurisdiction, and in which either party “has the right by law to demand a trial by jury.” The same act provides that appeals may be taken to the district court from all judgments or decrees of the common pleas, “ in which the parties have not the right, by virtue of the laws of this State, to demand a trial by jury.”

After a trial in the common pleas, the party aggrieved might obtain another trial, either in the same court, or, by appeal, in the district court. But in which of the courts the case might be retried, was often a question of difficult solution. As the law stood under this act, the party was compelled to take the hazard of a correct decision of the question which determined the forum of the retrial. A mistake in this matter was fatal; for, failing in one court, it could not be obtained in the other.

To remedy this defect, in the following year, an act was passed supplementary to the act of 1858 (S. & C. 1159), which provides that when a second trial shall be demanded under that act, such second trial shall not be allowed unless the court is of the opinion that the case is one in which a trial by jury may be demanded by either party,” and that the opinion of the court allowing or disallowing a second trial shall be entered upon the journal of the court.” It is further provided that, “ If the opinion of the court shall be adverse to the allowance of the second trial, either party may appeal to the district court from the judgment rendered in the case,” on giving notice and bond for appeal as required by law.

This is an important modification of the right of appeal as granted by the act of 1858 ; for it is not left to depend alone upon the right to demand a trial by jury in the ease; but, where either party demands a second trial, it is made to depend upon the decision of the court on that question. When it is adverse to the allowance of a second trial, the right of appeal, for that reason, is expressly granted by the supplementary act. Jurisdiction of a case, therefore, may be acquired by appeal under this act as fully as under that of 1858.

In the case before us, no action was taken in the district court, either by petition in error, or by motion to dismiss the appeal, to call in question the ruling of the common pleas, in disallowing a second trial. There was, therefore, no ruling of the district court on the question, on which to predicate error, or a reversal of its judgment.

The supplementary act under which the case was appealed contains ample remedial provisions, in case the appeal had been dismissed by the district court, on the ground that a second trial should have been allowed; or (had no appeal been taken), if the order disallowing a second trial had been reversed on error by the district court. In either case the district court is required to remand the case to the common pleas.

The district court, under this act, obtains jurisdiction of the case by the appeal. If the order of the common pleas disallowing a second trial is erroneous, it may dismiss the appeal and remand the case. But if this is not done, and the parties waive objection to the order, by proceeding to trial and judgment, it would be contrary to the spirit of the supplementary act, as well as the plain principles of the law, to reverse the judgment, in which the court has jurisdiction, where no error intervened in its rulings in the case.

The third assignment of error is general, and can raise only such questions as are more properly made under the fifth assignment, for error in overruling ,the motion for a new trial.

As to the fourth assignment of error, it is sufficient to say, that the record discloses no erroneous rulings of the court in relation to the admission of evidence on the trial.

The remaining error assigned is the overruling the motion for a new trial. It is claimed that the judgment is not sustained by sufficient evidence, and is contrary to law.

In Meara's Adm'r v. Holbrook, decided this term,* we held that this class of cases against receivers was to be determined upon the principles applicable to like cases against individuals or corporations carrying on the same business. In this view of the case, most of the questions raised on the motion for a new trial resolve themselves into questions of fact.

It was claimed by the plaintiff below that he received the injury complained of while travelling in the night on the highway,, by reason of a deep excavation in the side of a hill across the public highway, made by the employés of the defendant below. On the other hand, it is claimed, that long before the receiver began to exercise the franchises of the railway company, the highway had been lawfully diverted by the company from the place of the accident, and that the plaintiff drove there in his own wrong. The company was empowered by its charter to divert highways whenever it was necessary in the construction ” of its road; but they were also required to place such highway, without unnecessary delay, “ in such condition as not to impair its former usefulness.” If it be conceded (though it is by no means clear of doubt), that this power was broad enough to authorize the company, after its road was located and constructed, to divert a highway for the purpose of opening a gravel pit or bank across the old way, it is clear that they could lawfully do so only upon exercising reasonable precautions for the public safety. In regard to the exercise of admitted rights in cases of this kind, the rule is briefly stated in Vesey v. The Railway Co. (49 Maine, 119), viz.: The right to make the cut did not give the right to do it without due regard to the public safety; and that, required that all proper guards should be erected and continued, whenever there was danger of injury to any person by reason of the cut.” Under this'rule, then, it becomes a question of fact, whether the alleged injury of the plaintiff below, without fault on his part, was occasioned by the negligence- of the employés of the receiver.

There was evidence in the case tending to show that, after the road came into the hands of the receiver, the excavation in the old highway was much enlarged and rendered more dangerous; and that shortly before the accident, the employés of the receiver were engaged in carting dirt in the old highway to repair or finish the new one, and that the old road was left without any barriers or guards to hinder or warn travellers in the night from driving into the excavation. ‘The testimony is voluminous, and we cannot here refer to it all; nor can we notice many of the minor points made in the case, further than to say, that after a careful consideration of 'the case, we cannot say that the judgment of the court below was not warranted by the law and the evidence.

It is also claimed that the court erred in not granting a new trial on the ground of newly discovered evidence. This claim is supported by the affidavits of a number of physicians disclosing evidence tending to diminish the extent of the injury claimed on the part of the plaintiff below. The evidence did not go to the right of action, but to diminish the damages. The witnesses lived in the town where the case was tried, and their knowledge on the subject was obtained by an examination of the limb and that part of the body of the plaintiff claimed to be injured. The ease had been tried once before, and on the trial the plaintiff expressed himself willing to submit to an examination by surgeons. It seems to us that the same kind of evidence, on which the new trial was asked, at all times on and before the trial, could have been so easily procured, that the court might well regard the neglect to do it as a sufficient reason for refusing a new trial on that ground.

On the whole case we do not find any error that will justify us in reversing the judgment of the court below; it must therefore be affirmed.

Brinkerhofe, O.J., and Welch and White, JJ., concurred.

Scott, J., dissented from the third proposition of the syllabus.  