
    CHILD KILLED BY TROLLEY CAR..
    [Circuit Court oí Hamilton County.]
    The Cincinnati Traction Company v. Darwin Stephens, Administrator of the Estate of Emily Stephens, Deceased.
    Decided, February 3, 1906.
    
      Death by Negligence — Value of. Life of Child — Evidence—Cross-Examination — Charge of Court — Contributory Negligence — “Direct” Cause of Accident — Settling of Bill of Exceptions.
    
    1. In an action for damages on account of the wrongful death of a minor child, the testimony of the father as to what the child would probably have been worth to himself and family is competent, after a recital as to the health and capacity of the child, his own resources, etc.
    2. After a cross-examination in which a recent fabrication has been imputed to the witness, a re-examination is competent as to prior statements by the witness.
    3. Under Section 5302 as amended, the signature of the judge to a bill of exceptions is evidence of the settling, as well as of the allowing and signing of the bill.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
   The original action was commenced to recover damages for the ■ death of Emily Stephens, nine years of age, occasioned through the alleged negligence of the Cincinnati Traction Company, in operating its cars at a crossing in a public highway. The defense, with the exception of certain formal admissions, was a general denial. The jury returned a verdict in favor of the plaintiff, on which judgment was entered.

The first alleged error consists in the admission of the testimony of Darwin Stephens, relative to the amount of damages that would be sustained by next of kin.

After testifying concerning the age, health and capacity of the child to work, the health of his wife, his own resources and other circumstances, he was permitted to state what his deceased daughter would probably have been worth to himself, his wife, and the brothers and sisters. The opinion of the witness, taken in connection with the facts mentioned, brings it within Rules IV and V stated in the case of Railroad Company v. Schultz, 43 O. S., 270, at page 282.

The next alleged error is in permitting the witness, Julia Nicholson, to testify upon re-examination as to her statements before the coroner, after a cross-examination which imputed to her the recent fabrication of the statements made by her in the examination in chief.

In Zell v. Commonwealth, 94th Penn., 258, the fourth proposition of the syllabus is as follows:

“Where an attempt is made to discredit the statement of a witness, evidence is admissible to show that the witness mads said statement at another time, to other parties to show that the statement is not a fabrication of recent date, and as bearing on the witness’ credibility.”

In the case of The Commonwealth v. Wilson, 67 Mass., 337, the last proposition of the syllabus is as follows:

“A witness, who has been asked on cross-examination when he was first inquired of by any one concerning the facts of which he has testified in chief, may be asked on re-examination whether he had previously communicated the same facts to other persons.”

We think there was no error in the re-examination of the witness.

The last alleged error consists in the court charging the jury that if the direct cause of the death of the child was the negligence of the traction company’s employes, the verdict should be in favor of the plaintiff; if it was the contributory negligence of the child, the verdict should be in favor of the defendant.

-The objection to this charge made by counsel for plaintiff in error is that a direct cause necessarily implies the only cause, and relies upon the ease of Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Krichbaum’s Administrator, -24th O. S., 119, where the court say, at page 124:

“The jury was properly instructed:
“1. That the plaintiff could not recover, unless it was shown that the defendant was guilty of negligence, and that such negligence ‘caused’ the injury.
“2. That the plaintiff could not recover, if the deceased was guilty of negligence or want of care, and ‘that produced’ the injury.
“Neither of these instructions, however, indicated the rule by which the jury should be governed, in case they found' the injury to have resulted from combined causes, to-wit, the cooperation of negligent conduct on the part of both the defendant and the deceased.”

The charge before us differs from that one in the use of the word “contributory,” from which the jury may well have inferred that there must be some negligence on the part of the defendant to which the negligence of the decedent contributed. But whether that be so or not, the case cited is not applicable to this case, for the reason that the defendant in that case reqtiested the court to instruct the jury that if the negligence of the deceased contributed to the injury which caused his death, the plaintiff can not recover although the defendant was not guilty of negligence; whereas in this case no such request was made by the defendant nor was, there any allegation in the answer of contributory negligence, and the most that defendant could have requested would be “that if testimony introduced by the plaintiff raised the presumption of contributory negligence, the burden was upon him to remove such presumption.” Not having made any request, and the charge given being proper in so far as it was given, there was no error. The Cincinnati Traction Co. v. Forrest, 73 O. S., --.

Upon the motion to strike the bill of exceptions from the files, for the reason that it is nowhere certified that the bill of exceptions was settled, although objections thereto have been filed, Section 5302, Revised Statutes, as amended in 96 Ohio Laws, page 17, provides:

“It shall not be necessary to cause an entry to be mdde upon the journal of tfie court of the settling, allowance and signing of any bill of exceptions; but the signature of the trial judge, or other judge, mentioned in Section 5301a, allowing, settling, and signing such bill, shall be sufficient evidence of such fact.”

Outcalt <& Foraker and Smith Hichenlooper, for plaintiff in error.

E. S. Aston, for defendant in error.

Under this section we hold that the signature of the judge to the bill of exceptions is evidence of the settling, as well as the allowing and signing of such bill.

The motion will be overruled, and the judgment affirmed.  