ages for wrongful death of a child who ran across a street in
front of a car, between crossings, it is error to charge: "If the
jury believe from the evidence that the motorman on the de-
fendant's car which killed Albert Cahill as alleged in the peti-
tion and admitted in the answer, was running said car at a
high and excessive rate of speed, under the circumstances and
conditions then prevailing, on Harris Avenue, when he did see,
or ought to have seen him in time to stop said car before it
hit him, and he did not do so, then the said motorman was
guilty of negligence and the defendant is liable." A motor-
man is not required to stop unless he is aware of something
which would lead a person of ordinary care and prudence to
believe that failure to stop would cause injury. Cincinnati
Traction Co. v. Cahill, 46.
Automobiles-Master and servant - Evidence - Scope of em-
ployment Private instructions to chauffeur. See Rad, Jr., V.
Gamble, 488.
Automobiles - Master and servant - Undertaker hires automobile
from liveryman - Driver injures third person - Liability—
Driver general servant of liveryman. See Gechei v. Boltz,
180.
Evidence Injuries necessitate operation - Statements of sur-
geons to patient - Exclamations or opinion of pain and suffer-
ing Expert testimony and hypothetical questions - Argument
to jury. See Cincinnati Trac. Co. v. McKim, 108.
Landlord and tenant - Liability-Licensee or invitee - Defective
platform on adjoining premises. See Vondenberger v. Schaaf,
285.
Nuisances Liability — Municipality or abutting owner - Injury
to pedestrian Cave-in along sidewalk - Notice of condition
or nuisance. See Bello v. City of Cleveland, 297.
Tortfeasors Verdict against two wrongdoers - Judgment ren-
dered against one- New trial granted other. See Village of
Struthers v. Falabielo, 341.
1. Verdict against two wrongdoers — Judgment rendered against
one-New trial granted another - Where two or more persons
are severally liable for a tortious act, and an action is brought
and verdict rendered against all, it is not error for the trial
judge to grant a new trial as to one and enter judgment as to
the others. Village of Struthers v. Falabielo, 341.
Jurisdiction after new trial granted - A
trial court, after setting aside a verdict in favor of plaintiff
on the ground that the judgment was against the weight of the
evidence, can not consider the weight of evidence at a second
trial of the case in which the jury again rendered a verdict in
favor of the plaintiffs; neither can the reviewing court reverse
the judgment on the weight of evidence. (Cleveland Ry. Co.
v. Trendel, 101 Ohio St., 316, approved and followed.) Storrs-
Schaefer Co. v. Laws, 387.
Criminal law Refusal of clerk to issue commitment - Remedy
of prosecutor - Mandamus or annulment of order granting new
trial. See State, ex rel., v. Haserodt, 305.
Criminal law-Time for filing motion - Section 13746, General
Code. See State, ex rel., v. Haserodt, 305.
Necessary parties and summons Error proceedings
refusal to probate will. See In re Will of Nosica, 480.
Parties - Recovery of unadministered personalty, etc.— Right to
maintain suit. See McCord v. Cent. Tr. & S. D. Co., 26.
Landlord and tenant Termination of tenancy Notice of inten-
tion to continue - Acceptance of rent waiver of forfeiture. See
Pabst v. Fischer, 302.
Schools Transfer of territory - Section 4692, General Code-
Parol evidence of notice. See State, ex rel., v. Hall, 350.
1. Injunction denied - Operating factory in residence district —
Injunction will not be granted against a corporation requiring it
to cease the operation of its plant, upon the ground that noises,
vibrations, gases and fumes emanating 'there from constitute a
nuisance in an exclusively residential neighborhood and result
in damage to plaintiff's personal and property rights, where it
appears that at the time plaintiff purchased a residence the
locality was, or would soon be, upon the line of demarcation
between a business or manufacturing district and a residential
section. Stothfang v. Çin, Aluminum Castings Co., 334.
2. Injunction denied - Court may retain case and order annoyance
minimized In an action to enjoin the operation of a factory
as a nuisance in a residential district, a court of equity may re-
fuse an injunction as prayed for, and retain the case for the
purpose of endeavoring to reduce or minimize the inconvenience
to the neighborhood. Ib.
Negligence - Liability — Municipality or abutting owner - Pri-
mary and secondary liability - Accord and satisfaction
Cave-in along sidewalk. See Bello v. City of Cleveland, 297.
Mandamus - Prerequisites to issuance against public officer-
Elections. See Brower v. State, ex rel. Ritz, 259.
Public contracts - Statutory requirements strictly construed, when
Certificate of clerk that funds available - Sections 5660 and
5661, General Code. See Knowlton & Breinig v. Board of Edu-
cation, 30.
Ferry rates. - Municipal ordinance rates from opposite shore in-
valid - Reduced fares valid, when - Workhand and shopping
tickets. See Bellaire, ex rel., v. Ferry Co., 356.
Municipal gas franchise - Quality of gas to be stipulated, when
- Section 3989, General Code — Jurisdiction — Public Utilities
Commission. See Stuvery. East Ohio Gas Co., 276.
Evidence Expert testimony and hypothetical questions. See
Cincinnati Trac. Co. v. McKim, 108.
OPIUM -
Regulation of sale
Section 12672, General Code - Constitutional
law Prescriptions in proper practice — Question for jury.
See Miller v. State, 171.
Wagering transactions void, when Mutuality of intention of
parties Purchase of wheat options. See Hawke v. Roberts &
Hall, 198.
Evidence - First degree murder - Policeman killed while arrest-
ing suspicious character - Failure to prove ordinance authoriz-
ing such arrest. See Barger v. State, 370.
Municipal corporations - Assessments - Street and watermain
improvement — Legislation may include both, when - Section
3812, General Code. See Wilder v. Cincinnati, 453.
Municipal corporations - Ferry rates on Ohio river - Ordinance
rates from opposite shore invalid - Reduced fares valid, when
Workhand and shopping tickets. See Bellaire, ex rel., v.
Ferry Co., 356.
Municipal corporations - Street railway franchise - Free trans-
portation for mail carriers-Section 516, General Code, inap-
plicable, when - Constitutional law - Impairing obligation of
contracts. See Steubenville v. Traction Co., 493.
Municipal corporations - Telephone franchise - Jurisdiction of
public utilities commission - Injunction against increasing rates
Defenses — Unprofitable operation - Extension of conduits
by company. See Columbus v. Ohio State Tel. Co., 232.
Negligence Dangerous instrumentalities Infant injured by ex-
plosion of blasting caps. See Byrnes v. Hewston, 13.
Juvenile court-Jurisdiction of dependent - Sections 1647 and
1648, General Code - Citation to parent unnecessary, when —
Habeas corpus. See Bleier v. Crouse, 69.
Estates Recovery of unadministered personalty, etc. — Who may
maintain suit - The next of kin cannot, in the absence of special
circumstances, maintain an action in their own names to re-
cover unadministered personal property of the decedent or
collect debts or other choses in action due the decedent. Mc-
Cord v. Cent. Tr. & S. D. Co., 26.
Appeal to common pleas court - Workmen's compensation —
Award denied claimant - Employer may be joined, when. See
Valacek v. Industrial Commission, 17.
Error proceedings- Non-resident next of kin - Review of re-
fusal to probate will. See In re Will of Nosica, 480.
Witnesses - Competency - Section 11495, General Code - Action
against administrator - Children of decedent. See Walkey v.
Loney, 393.
Workmen's compensation - "Employe" construed - Section 1465-
61, General Code- Member of partnership or firm not entitled
to award, when. See McMillen v. Industrial Commission, 310.
PAYMENT-
Sales Installment contract
Delivery and payment concurrent,
Reasonable time for delivery - Question for jury –
Sections 8422, 8423 and 8425, General Code. Sce Mal-Gra Cast-
ings Co. v. Natl. Brass Mfg. Co., 49.
PERFORMANCE-
Contracts Refusal of demand
perform - Evidence-
Obligee's statement to one not in privity. See Starchroom Pub.
Co. v. Threlkeld Engr. Co., 281.
Evidence Statements of surgeons to patient-Expert testimony
and hypothetical questions. See Cincinnati Trac. Co. v. McKim,
108.
Narcotics Regulation of sale-Section 12672, General Code -
Constitutional law - Prescriptions in proper practice - Question
for jury. See Miller v. State, 171.
Amendment of petition - Workmen's compensation - Appeal to
common pleas court-Allegation of cause of death.
dustrial Commission v. Cleek, 417.
Amendments - Proceedings before referees. See Caple v. Crane,
317.
Chancery case— Court of appeals Jurisdiction on appeal-
Unpaid stock subscriptions - Equalization of payment to
liquidate debts-Receivership. See Union Sav. Bk. & Tr. Co.
v. Cin. & Cols. Trac. Co., 9.
Criminal law-New trial-Time for filing motion- - Section
13746, General Code. See State, ex rel., v. Haserodt, 305,
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