Summit County Circuit.

edge of these facts, without any attempt on the part of the motorman or conductor to ascertain what was going to be done next with the engine, reliance was placed by them solely upon the flagman's signal, and the fact that the engine had come to a stop, in attempting to pass over the crossing in front of the engine.

It is the duty of an engineer in charge of a train or engine which has been brought to a stop in, or near to, a public street crossing, to give warning of his intention to start his train, in order that anyone upon the street may be informed of the danger in attempting to cross the track, and further, to exercise reasonable and ordinary care to see that the way is clear.

The authorities on this subject are considered in Thompson, Negligence, Sect. 1568, and the result stated in the following language:

"It is a sound conclusion that it is the duty of the engineer in charge of a train standing still, before starting his engine across a street, not only to give timely warning of his intention, but also to see whether his train will not be likely to strike a traveler or frighten his horses.'

It was the duty, therefore, of those in charge of the engine belonging to the plaintiff in error, to give warning of their intention of moving across the street with the engine and to see that the way for passage was free.

The employees of the traction company, in charge of the car, had a right to rely upon the performance of this duty on the part of the employees of the railroad company in charge of the engine. The former were not bound to anticipate negligence on the part of the latter in the performance of their duties.

As was said in Loucks v. Chicago, M. & St. P. Ry. 31 Minn. 526 [18 N. W. 651]:

"One who is called upon to exercise care to avoid danger from the acts of others may, in regulating his own conduct, have regard to the probable or apprehended conduct of such other persons, and to the presumption that they will act with reasonable caution and not with culpable negligence."

Considering the special facts relied upon by the plaintiff in error as undisputed, and giving them full effect, we can not see that they, as a matter of law, show the defendant in eror to

Lake Erie & W. Ry. v. Northern O. Trac. & L. Co.

have been guilty of contributory negligence. This was a question for the jury which was properly submitted to them by the trial court.

The views herein expressed are sustained by numerous authorities.

In Robinson v. Western Pacific Ry. 48 Cal., 409, a part of the syllabus reads as follows:

"If a track of a railroad passes along the street of a city, crossing another street, and a train of cars is stopped in the first street so that the last car in the train stands in the cross street, and while a person is walking along the cross street, over the track, behind the train, the train without any notification is suddenly backed, and the person is knocked down and injured by the cars, the employees of the company are guilty of gross negligence.

"The person injured in such a case is exercising an undoubted right in crosing the railroad track on a public street, and is not guilty of such want of care or diligence as contributes to the injury, and the railroad company is not released from the liability on the ground of contributory negligence.

"The person injured in such case had a right to presume that he would be notified that the train was about to move, and was not bound to wait because the train was on the street, or assume that it might move suddenly backward without notice."

In St. Louis & S. F. Ry. v. Dawson, 64 Kan. 99 [67 Pac. 521] is a case in principle like the one under consideration. The syllabus reads:

"The attempt of a traveler to cross the front of an engine standing near the crossing is not generally so inherently dangerous as to preclude a recovery of damages if the engine or train is unexpectedly started forward upon her, but in most such cases the question whether she has been guilty of negligence will go to the jury, especially where it moves upon her without giving any signals. Under the facts in this case, the district court did not err in holding the general rule as above stated to be applicable thereto.

66

'A traveler upon a public street, passing in front of an engine, fired up and warmed, standing without the bounds of the highway, but so near it that from the cab windows the street and objects within it can be plainly seen, has a right to assume that the engineer will not, without warning, start his locomotive and run over her upon the street before she can, while proceeding with haste and in the exercise of ordinary care and caution, cross

Summit County Circuit.

the tracks upon which the engine is standing when she makes the attempt to do so."

The law is summarized in 33 Cyc. of Law and Proc., 1036, in this language:

"Where there are trains or cars standing on or near a crossing, a person approaching the crossing has a right to assume that they will not be moved without proper warnings or signals, and if he attempts to cross with reasonable care and prudence, he is not necessarily guilty of contributory negligence, the question whether or not is he so negligent usually being one of fact.

See also Meeks v. Ohio River Ry. 52 W. Va. 99 [43 S. E. 118] Pinney v. Missouri, Kansas & Texas Ry. 71 Mo. App. 577; Palmer v. Detroit, L. & L. M. Ry. 56 Mich. 1 [22 N. W. 88].

It is also contended by the plaintiff in error that the court erred in giving the first request of the plaintiff below to charge before argument. This request was in the following language:

"If you find that at the time the transaction involved in this case the plaintiff street railroad company had a flagman stationed at the crossing where the street railroad tracks cross the tracks and the defendant company, and you further find that a street car of the plaintiff approached said crossing while the engine operated by the defendant company was backing toward the east across said crosing, and that said street car stopped south of said steam railroad tracks at a distance of from ten to fifteen feet, and you further find that the fireman on said engine saw said street car waiting to cross said tracks and you further find that said engine backed to the east to a point fifteen or twenty feet easterly of that point where the street car tracks cross the railroad tracks, and that said locomotive after clearing said tracks such distance stopped, and that the persons in charge of the same did not give any signal or notice of any intention to come forward, and you further find that after said engine had stopped and while it was stopped the flagman at said crossing signalled said car to come forward, then I say to you said street car had a right to go forward across said tracks, and it was the duty of the servants of the defendant in charge of said locomotive to exercise their faculties and to look for such car before starting their engine back over said street car track, and if they started their engine forward without looking or exercising their faculties to ascertain if the street car was crossing under the circumstances above stated, and plaintiff's car was injured as a proximate result of such starting, then the plaintiff is entitled to recover."

Lake Erie & W. Ry. v. Northern O. Trac. & L. Co.

We think this request is in harmony with the principles of law which are stated in the authorities already considered under the first assignment of error, and that it correctly states the duty of the servants of the defendant in charge of the locomotive, and the liability of the defendant for their neglect to perform such duty.

Complaint is also made that the court erred in refusing the defendant's fifth request to charge, which is in the following language:

"If you find from the evidence that plaintiff's car was brought to a stop not less than ten nor more than fifty feet from the crossing; that defendant's engine then crossed the plaintiff's tracks and came to a stop on the east side thereof, or if defendant's engine had already crossed plaintiff's tracks when its car was brought to a stop, and if while defendant's engine and plaintiff's car were both stopped an employee of plaintiff's went forward on the crosing and signalled plaintiff's employee on the car to cross the railroad tracks; and if you also find that at the time such signal to cross was given that defendant's employees were either not visible to plaintiff's employees in charge of its car or if visible were not heeding or watching plaintiff's car, or did not see it and that such failure to heed or watch or see the car was known to plaintiff's employees in charge of the car or could have been known to them by the exercise of ordinary care, then and in such case it was the duty of plaintiff's employees to use such further ordinary care as a person in the exercise of ordinary care would use under similar circumstances, to ascertain whether it was in fact safe for the car to be driven upon or across the crossing; and if plaintiff's employees did not use such ordinary care, and without such ordinary care on their part drove the car upon or over the crossing, and that the failure to exercise such ordinary care contributed to the bringing about the collision and the resulting damage to plaintiff's car, then in such case plaintiff was guilty of contributory negligence and can not recover notwithstanding that refendant may also have been guilty of one or more negligent acts which also contributed to the bringing about of the collision and the resulting damage."

This request, if given, would have imposed the exercise of a higher degree of care upon the employees of the traction company in charge of the car than they are chargeable with under the law. They were not required to anticipate that the employees of the railroad company would be negligent in the per

Summit County Circuit.

formance of their duties, nor to take the steps required by the language of this request to guard against such negligence on the part of those in charge of the engine as would be involved in their starting it across the street without warning, and without informing themselves that the way was clear and free from danger to those who might be crosing the tracks.

We find no error prejudicial to the plaintiff in error in any of the matters complained of, and the judgment of the court of common pleas is affirmed.

Winch and Marvin, JJ., concur.

DEEDS.

[Summit (8th) Circuit Court, April 15, 1912.]

Winch, Marvin and Niman, JJ.

CHARLES AKERS V. AKRON, C. & Y. RY. ET AL.

Rule in Shelly's Case Applied to Deed Granting Life Estate with Reversion to Children, Heirs of His Body, Etc.

When the granting clause of a deed is in the usual form and gives, grants, bargains, sells and conveys the premises therein described unto the grantee, his heirs and assigns, and the habendum clause reads, "to have and to hold said premises for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and assigns, forever," the rule in Shelly's case applies and the grantee takes an estate in fee simple.

APPEAL.

NIMAN, J.

This action is here on appeal from the court of common pleas. The plaintiff claims to be the owner in fee simple and in possession of certain real estate, situated in the township of Springfield, county of Summit and state of Ohio, and especially described in the petition. The action is brought to enjoin the defendants from committing certain acts of alleged trespass upon