Rohrer v. Culbertson,

ern Kansas Ry. v. Moore, 49 Kas. 616 [31 Pac. Rep. 138]; Atchison, T. & S. F. Ry. v. Schroder, 47 Kas. 315 [27 Pac. Rep. 975].

PFLEGER, J.

The petition alleges that the plaintiff's intestate, a boy of fourteen years, was a press feeder in the employ of the defendant's printing establishment; that during said employment the lad became suddenly ill, was unable to continue his work and requested permission of the defendant's superintendent to leave his work and go home; that defendant's superintendent carelessly and negligently, under threats of discharge, failed to do so; that the boy continued at his work until he became physically exhausted, left for his home, and by reason of such "neglect and want of proper advice and medical attendance" he died on that same evening. Ten thousand dollars damages are claimed. The defendant filed a demurrer on the ground that the facts stated do not constitute a cause of action.

The Indiana courts seem to have held that while the service is not compulsory in the sense that an employe cannot be compelled to work ' against his will, it cannot close its eyes to the fact that the servant does not stand upon the same footing, and that the necessities of the struggle for existence tends strongly to deprive him of the theoretical independence and freedom of action; that the servant's primary duty is obedience, and that if, fearing discharge, he obeys an order of the master, and through the negligence of the master, the servant, although knowing the danger, is thereby injured, it is but meet that he should be recompensed. Bailey, Pers. Inj. Secs. 884 and 885.

The courts of other states, including Ohio, have not gone so far, and the extreme in that respect has been to hold the master responsible where the employe reasonably relies upon the superior knowledge of the master or his promise to remedy patent defects, unless the danger is so manifest as to prevent a reasonably prudent man from encountering the risk. Bailey, Pers. Inj. Sec. 898.

The generally accepted doctrine in all the other states is, that the servant assumes the usual and ordinary risks incident to the employment in which he is engaged. "Fear of discharge by the employe if he does not obey the order of the master will not justify him in running a risk which is well known to him, and then if he is injured ask a recovery in damages from the master." "In the absence of restrictive contract provisions the master is at liberty to discharge the servant at any time; so likewise is the servant at liberty to abandon his service at will. The master has the right to demand other service from that which the servant has engaged. The latter may accept or decline at will. Declining, he may lose his employment; accepting, he assumes the risks attending the service, if he knows or has been properly warned of

Hamilton Common Pleas.

them. The servant is not under guardianship; he is a free man at liberty to make such contracts as he will. If through stress of circumstances he consents to the order of the master rather than be discharged from employment, it does not impose liability upon the master because of such demand, if he has otherwise performed the duty which the law imposes upon him with respect to the servant." Bailey, Pers. Inj. Secs. 880, 880a; Worlds v. Railway, 99 Ga. 283 [25 S. E. Rep. 646]; Southern Kansas Ry. v. Moore, 49 Kan. 616 [31 Pac. Rep. 138].

The rule of contributory negligence and the assumption of risks is, of course, not so stringent against persons not sui juris, and our Supreme Court has held minors who possess only such discretion and judgment as is given to and may be reasonably expected from children of their age and capacity, to compel employers to use due care tc protect them and instruct them concerning any dangers. Rolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596]; Lake E. & W. Ry. v. Mackey, 53 Ohio St. 370, 383 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640].

Nor could any civil liability attach under the laws in this state against child labor. Laning R. L. 7310 and 7311 (R. S. 6986-1 and 6986-2) provide for the punishment by penalty and imprisonment of anyone who wilfully causes or permits the life or limb of any child under sixteen years of age to be in danger, or its health to be injured from and while actually engaged in such employment.

In the case at bar it is evident that the negligent act complained of did not arise from or out of anything done in the course of the employment of the boy by the master or his agent in the way of dangerous machinery or appliances, or an unhealthy or unfit place to work in. It is alleged that he became suddenly ill from some cause unknown, and asked permission to go home for the purpose of obtaining medical advice. This was refused him under a threat of discharge, and because he took the risk of becoming worse rather than be discharged, the lad remained longer than he should, and by reason of his own failure to so seek medical advice and not for any cause growing out of the nature of his employment he subsequently died. As was said heretofore the servant was a free agent to abandon the service at his will. He certainly could not have been misled into the belief that he was forced to endanger his life or health by merely remaining on duty. The only possible situation in which such a liability could accrue would be in the case of apprenticeship where the master is placed in loco parentis, having the care and maintenance of the infant, and like a father is compelled to support the infant in sickness and in health, and to provide him with proper medicines and medical aid (2 Eng. & Am. Enc. Law [2 ed.] 512).

Rohrer v. Culbertson,

If the superintendent of the defendant was guilty of the inhuman conduct alleged in the petition, this court may condemn it as heartless and brutal treatment, but it was not a breach of duty which he owed the deceased growing out of his employment, and it cannot give the plaintiff the relief here demanded.

The demurrer is therefore sustained.

DAMAGES-DEATH.

[Superior Court of Cincinnati, General Term, May, 1905.]

Ferris, Caldwell and Hoffheimer, JJ.

(Judge Caldwell of the Hamilton common pleas sitting in place of Judge Hosea.)

CINCINNATI TRACTION CO. v. JOHN ROOM.

APPORTIONMENT OF DAMAGES IN ACTION FOR WRONGFUL DEATH.

In an action for damages for wrongful death it is the duty of the jury to determine the entire amount of damages, taking into consideration the pecuniary injury to each of the beneficiaries by reason of the death, but a request for special charges making it necessary for the jury to apportion the damages among the beneficiaries is properly refused. The probate court has plenary powers to determine all questions of distribution.

Paxton & Warrington, for plaintiff in error.

Galvin & Galvin and W. A. Geoghegan, for defendant in error. FERRIS, J.

This was an action brought by the administrator to recover damages resulting from wrongful death, under Lan. R. L. 9673 (R. S. 6134); and contention is made that there is error in the refusal of the court to give certain special charges necessitating a finding by the jury proportioning the amount to be recovered among those for whose benefit such action was brought.

Laning R. L. 9675 (R. S. 6135), provides

"That every such action shall be for the exclusive benefit of the wife, or husband, and children, or, if there be neither of them, then for the parents and next of kin of the person whose death has been caused, and in every action, the jury may give such damages,

as they may think proportioned to the pecuniary injury resulting from such death to the persons respectively for whose benefits such action shall be brought."

Contention is made that the trial court should have instructed the jury, that as the evidence showed that two sons and a married daughter, adults, were able to earn their own subsistence, they were not entitled to be considered beneficiaries, and such conclusion was fairly inferable

Superior Court of Cincinnati.

from a clause in this same act giving the court the power to make a fair and equitable distribution of the assets, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates.

The objection to the contention that the jury making the award could take into consideration the age and conditions of the beneficiaries, is answered by the provisions of Lan. R. L. 9675 (R. S. 6135), wherein it is provided that the "amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment." The probate court, therefore, is by the statute, vested with plenary power to determine all questions of distribution of the fund, the amount of which only was to be determined by the jury to whom the charge was given.

In the case of Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812], it was held that an administrator is a mere nominal party having no interest in the case for himself or the estate he represents, and such actions are for the exclusive benefit of the beneficiary in said sections named (referring to Lan. R. L. 9673, 9675; R. S. 6134, 6135). And Wolf v. Railway, supra, determines, in our judgment. that, while it was the duty of the jury to consider the pecuniary injury to each separate beneficiary, the verdict should be, as it was for a gross sum of money, to be subsequently apportioned among the beneficiaries in such manner as should be fair and equitable; and there is nothing in the record to indicate that such a course was not followed.

We find no error in the position taken by the court in this or any other grounds alleged for error. And we, therefore, affirm the judgment. Caldwell and Hoffheimer, JJ., concur.

ASSESSMENTS-STREET RAILWAYS.

[Franklin Common Pleas, January 25, 1905.]

URBANA, M. & C. RY. v. COLUMBUS (CITY) ET AL

1. STREET RAILWAY FRANCHISE-COST OF IMPROVEMENT OF STREET.

A street railway company, entering into a contract with a city by ac cepting a franchise which provides that the company shall pay for pavement already laid such proportion of the cost thereof as the width occupied by its tracks and one foot outside thereof shall bear to the whole width of the improved roadway, is bound by such contract and cannot dispute the items of expense which made up the entire cost of the improvement nor can it complain because the same rate of assessment per front foot was enforced along the entire street, although a part of the improved roadway was narrower than the rest.

Railway v. Columbus.

2. IMPROVEMENT OF STREET-WIDTH OF IMPROVED ROADWAY. Where a street railway company accepts a franchise from a city by which it is provided that the company shall pay to the city the proportion of the cost of a pavement already laid which the width occupied by its tracks and a foot outside thereof shall bear to the whole width of "the improved roadway," the computation of the latter figure should include the width of the curb laid on both sides as a part of the improvement.

Cyrus Huling, for plaintiff.

J. M. Butler, for defendant.

EVANS, J.

By agreement of parties trial by jury is waived and the case is submitted to the court on the evidence, and argument of counsel. My finding of facts and conclusions of law are as follows:

FINDINGS OF FACT.

The plaintiff is a corporation organized under the laws of Ohio with its principal place of business in Columbus, and by its charter it is authorized to construct, equip and operate an electric railway from Urbana to Columbus.

That on November 19, 1900, the city council of the city of Columbus passed an ordinance, number 17524, which was approved by the mayor of said city on November 26, 1900, and which ordinance was duly accepted by the plaintiff herein.

By the terms and conditions of said ordinance the plaintiff was permitted to construct and operate an electric railway line with single and double tracks upon and across certain streets of said city upon the consent of a majority of the property owners on said streets having been theretofore obtained and filed with said council.

That the streets of said city upon which plaintiff was authorized and permitted to construct and operate said railway was, among other streets, on and over Spring street from its intersection with Dennison avenue, in an easterly direction to Water street.

That section 4 of said ordinance provided, among other things, the following:

"If the city council, at any time, orders the improvement of the roadway of any of said streets or avenue by laying down thereon a pavement of any kind, said grantee and assigns shall, at their own expense, improve that portion occupied by the tracks of said road and one (1) foot outside thereof, with the same character of material as is used on the remainder of the streets, or, if on the said streets or avenue a pavement has already been laid and an assessment therefor placed on the tax duplicate, said company shall pay to the director of accounts of the city of Columbus, Ohio, such proportion of the assessment for said improvement as the space occupied by said tracks and one foot on the