Consolidated St. Ry. Co. v. Maier

Lucas Circuit Court

Consolidated St. Ry. Co. v. Maier

4 Ohio Cir. Dec. 24

DecidedSeptember 15, 1893

StatusPublished

This text of 4 Ohio Cir. Dec. 24 (Consolidated St. Ry. Co. v. Maier) is published on Counsel Stack Legal Research, covering Lucas Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Consolidated St. Ry. Co. v. Maier, 4 Ohio Cir. Dec. 24 (Ohio Super. Ct. 1893).

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Opinion

Per Curiam.

The petition does not state facts sufficient to constitute a cause of action, for it does not appear thereby that said defendant is responsible to plaintiff .for the negligence of said motorman or conductor, or that the plaintiff was required or expected to ride upon said car while driving said horses, or that said lines were-too short, or otherwise defective for driving said horse while plaintiff walked, upon the ground, .nor that the defendant knew or was chargeable with notice or knowledge that said horses would or were likely to become excited or unmanageable on said bridge, nor that to the defendant’s knowledge, the position in¡ -which the plaintiff was placed was without'Some negligence or wrongful act on-, the part of some one, necessarily or likely to be one of danger. Nor is it alleged, in said petition that said plaintiff himself did not know or was incapable of appreciating the danger, if any, to which said employment then and there exposed him, the court being of the opinion that what is alleged in said petition regarding: the youth and inexperience of the plaintiff in managing horses or cars, and that: [26]*26said injury to him was without his fault, is not equivalent to the allegation of want of knowledge or incapacity in the plaintiff which is requisite in such cases. Rolling Mill Co. v. Corrigan, 46 O. S., 283; Car Co. v. Norman, 49 O. S., 598.

Baker, Smith & Baker, for plaintiff in error. Hamilton & Ford, for defendant in error.

It being suggested by counsel for Maier that it would be necessaryfor him to amend his petition, and that the court of common pleas, upon the case being remanded, might impose such terms and conditions lor such amendment as he would deem onerous, he asked that the circuit court might itself enter as a part of its order, a direction to the court of common pleas to allow such amendment; but the circuit court is ol the opinion'that it has no power to make such order, but that the court of common pleas will act in the matter equitably in view of the circumstances, including its own orders in the premises.

Judgment reversed for insufficiency of said petition, and cause remanded to the court of common pleas for further proceedings according to law.

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Per Curiam.

The petition does not state facts sufficient to constitute a cause of action, for it does not appear thereby that said defendant is responsible to plaintiff .for the negligence of said motorman or conductor, or that the plaintiff was required or expected to ride upon said car while driving said horses, or that said lines were-too short, or otherwise defective for driving said horse while plaintiff walked, upon the ground, .nor that the defendant knew or was chargeable with notice or knowledge that said horses would or were likely to become excited or unmanageable on said bridge, nor that to the defendant’s knowledge, the position in¡ -which the plaintiff was placed was without'Some negligence or wrongful act on-, the part of some one, necessarily or likely to be one of danger. Nor is it alleged, in said petition that said plaintiff himself did not know or was incapable of appreciating the danger, if any, to which said employment then and there exposed him, the court being of the opinion that what is alleged in said petition regarding: the youth and inexperience of the plaintiff in managing horses or cars, and that: [26]*26said injury to him was without his fault, is not equivalent to the allegation of want of knowledge or incapacity in the plaintiff which is requisite in such cases. Rolling Mill Co. v. Corrigan, 46 O. S., 283; Car Co. v. Norman, 49 O. S., 598.

Baker, Smith & Baker, for plaintiff in error. Hamilton & Ford, for defendant in error.

It being suggested by counsel for Maier that it would be necessaryfor him to amend his petition, and that the court of common pleas, upon the case being remanded, might impose such terms and conditions lor such amendment as he would deem onerous, he asked that the circuit court might itself enter as a part of its order, a direction to the court of common pleas to allow such amendment; but the circuit court is ol the opinion'that it has no power to make such order, but that the court of common pleas will act in the matter equitably in view of the circumstances, including its own orders in the premises.

Judgment reversed for insufficiency of said petition, and cause remanded to the court of common pleas for further proceedings according to law.

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Bluebook (online)

4 Ohio Cir. Dec. 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidated-st-ry-co-v-maier-ohcirctlucas-1893.