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time to remove him or to notify the trainmen on the later train, its negligence in not doing so was the proximate cause of Kassen's death, and the negligence of Kassen was remote. In that case the proximate cause and the remote cause were so clearly distinguishable, and it is so very evident from the opinion and the syllabus that this distinction was the real ground of the judgment of the court, that it is somewhat surprising that the doctrine of last chance as stated in that case should have been so often misinterpreted as a qualification of the doctrine of contributory negligence.
It is clear, then, that the last chance rule should not be given as a hit-or-miss rule in every case involving negligence. It should be given with discrimination. Since the plaintiff can recover only upon the allegations of his petition, if there is no charge in the petition that the defendant after having notice of the plaintiff's peril could have avoided the injury to plaintiff and there is no testimony to support such charge, the giving of such a charge would be erroneous. There is 250 no such allegation in the petition in this case. But further, there is testimony tending to prove that the plaintiff's team was driven upon the street railway track in the nighttime, ahead of the car, and that it continued on the track for a distance of two hundred and fifty feet until struck by the car, without taking any precaution to avoid accident. Assuming that the defendant was negligent in not seeing the buggy on the track and in not avoiding the accident, yet the plaintiff's negligence was continuous, and was concurrent at the very moment of the collision. It proximately contributed to the collision, for without it the collision would not have occurred. There was no new act of negligence by the defendant, which was independent of the concurrent negligence and which made the latter remote. Therefore, there was no place in the case for the doctrine of "the last clear chance."
There is a case, which was decided in the sixth circuit, which will illustrate our views, and a reference to it may save some further discussion. It is the case of Lake Shore etc. Ry. Co. v. Callahan, 2 Ohio C. C., N. S., 326, 15 Ohio C. D. 115. A railroad section-man, in obedience in an order by his foreman, started to walk along the track with his back to a locomotive two or three hundred feet away, but without observing whether the engine was standing still or running backward, and he walked along the track for seventy-five feet without paying any further attention to the engine, which was in fact
backing toward him, and was struck by it and injured. The court held that it was a case of concurrent negligence, continuing to the moment 251 of the injury, that the doctrine of "the last chance" did not apply, and that plaintiff was guilty of contributory negligence.
Similar views were expressed by the New York court of appeals in Rider v. Syracuse R. T. Co., 171 N. Y. 139, 63 N. E. 836, 58 L. R. A. 125, per O'Brien, J., as follows: "The contributory negligence of the injured party cannot be taken from the jury except in cases where it is clear that there was some new act of negligence on the part of a defendant that was the proximate cause of the injury. The negligence of the defendant, if any. It is impossible to separate that part the defendant, if any. It is impossible to separate that part of the transaction which took place after the first contact of the car with the vehicle from what took place before. It was all one transaction, and to attempt to divide it into fragments and impute one part of it to the negligence of both parties and another part to the defendant's negligence alone would, as it seems to us, entirely subvert the law of contributory negligence as applied to accidents of this character. If the theory upon which this case was tried and submitted is to be sanctioned, it must, we think, follow that in every case based upon such an accident, the result must turn not upon the general rule as stated, but upon the exception; or, in other words, the inquiry must be not whether the injured party was negligent, but whether it was reasonably possible for the defendant to have avoided the accident."
We do not feel willing to close this opinion without reference to Pittsburg etc. Ry. Co. v. Krichbaum's Admr., 24 Ohio, St. 119. While the whole of the court's opinion, delivered by 252 McIlvaine, J., is pertinent, we quote only the following: "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 co-operation of negligent conduct on the part of both the defendant and the deceased. With regard to the rule in such case, the court gave to the jury two propositions, as follows: 'It matters not how careless the servants of the defendant may have been, the plaintiff ought not to recover, if the deceased or his father could have avoided the collision by the exercise of care, diligence, and prudence. On the other hand, it matters not how careless the deceased and his father may
have been, if the persons running the train could, by the exercise of ordinary care, prudence, and diligence, have avoided the collision, and did not, then the plaintiff ought to recover.' The first proposition was quite as favorable to the defendant as it should have been, but the latter was to its prejudice and is wholly indefensible."
The judgment of the circuit court is affirmed.
Shauck, C. J., and Price, Crew and Summers JJ., concur.
A Person About to Cross the Track of a street railway is not under a duty to observe the same degree of care and watchfulness as when attempting to cross a steam railroad, and hence cannot, as a matter of law, be adjudged guilty of contributory negligence because he does not stop, look and listen: Marden v. Portsmouth etc. Ry., 100 Me. 41, 109 Am. St. Rep. 476. But see Hornstein v. United Railways Co., 195 Mo. 440, 113 Am. St. Rep. 693.
A Motorman has the Right to Assume that persons approaching or near the track will not recklessly expose themselves to danger by attempting to cross the track in front of his car: Butler v. Rockland etc. St. Ry. Co., 99 Me. 149, 105 Am. St. Rep. 267.
CITY OF MANSFIELD v. BRISTOR.
[76 Ohio St. 270, 81 N. E. 631.]
MUNICIPAL CORPORATIONS-Nuisances, Liability for.-A city is liable for damages resulting from the maintaining of a nuisance through its failure to perform its duty to control and supervise its streets, and keep them open and in repair and free from nuisances. (p. 855.)
MUNICIPAL CORPORATIONS Streets and Sewers.-The construction of a sewer in the streets is an authorized use thereof. (p. 855.)
MUNICIPAL CORPORATIONS-Streets-Power of to Grant Citizens the Right to Maintain Sewers Therein.-A municipal corporation, by virtue of its general control over public streets, may grant permission to a lot owner to construct a private sewer therein, but cannot authorize him thereby to maintain a nuisance. (p. 855.)
MUNICIPAL CORPORATIONS-Nuisance, Liability for not Abating. A municipal corporation is liable for damages in not abating a nuisance on land in its possession and under its control, and also where such nuisance consists of a private sewer maintained in one of its public streets by its permission. (p. 855.)
MUNICIPAL CORPORATIONS, Watercourse, When not Liable for Failure to Exercise Control Over.—A municipal corporation given by law control of a watercourse is not liable for not abating a nuisance therein. Whatever authority is given the city is merely a
delegation of the police power, and for a failure to exercise that. power a municipality is not answerable to a private action. (p. 856.)
NUISANCE, Joint Liability for, When does not Exist.—A riparian proprietor who has been injured by the pollution of a stream by the acts of several may not, in a suit against one, recover against him for the entire injury, excepting to the extent that the jury may mitigate the amount of recovery by considering the evidence tending to show the extent to which the acts of others have contributed (p. 856.),
Action against the city of Mansfield to recover damages for the loss of health and comfort caused by the pollution of Ritter's Run, a natural watercourse flowing through the rear of plaintiff's premises in that city. Verdict in favor of the plaintiff, assessing her damages at two thousand one hundred and sixty-eight dollars, and the judgment entered upon such verdict was affirmed upon appeal to the circuit court.
L. H. Beam and G. M. Cummings, city solicitors, for the plaintiff in error.
W. H. Bowers, for the defendant in error.
274 SUMMERS, J. Ritter's Run in the days of the Indian was a limpid stream, but the natural and inevitable result of the coming of the white man with his dirty city was that it degenerated into a foul drain and became a nuisance when it was made the outlet for sewers. But these consequences do not warrant an attempt to arrest the march of civilization, or, as 275 it is beautifully expressed by Lord Justice James, in Salvin v. North Brancepeth Coal Co., L. R. 9 Ch. AppCas. 705: "If some picturesque haven opens its arms to invite the commerce of the world, it is not for this court to forbid the embrace, although the fruit of it should be the sights, and sounds, and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitudes."
The principal source of pollution in Ritter's Run were five drains or sewers, a cesspool belonging to riparian proprietors and refuse thrown or permitted by them to find its way into the stream. Of the sewers, four were private sewers or drains,. one laid in private property and the others in the streets of the city by permission from the city, and only one was constructed by the city, and that was not constructed as a sewer but consisted of two lines of eight-inch pipe that had been. laid with open joints, one line on each side of a street, for
the purpose of drainage and as part of the improvement of the street.
It does not appear that the city authorized any of these drains to be used as sewers, but that they were so used and that Ritter's Run became so foul as to occasion material discomfort to the plaintiff does appear. The city had knowledge that sewage was being deposited in the stream through these drains, and that this matter in connection or combination with other matters in the stream created a nuisance. There was evidence that the plaintiff was sick for a time, but whether from the ills that flesh is heir to or from the condition of the stream is left wholly to conjecture. There is no evidence 276 of depreciation in the value of plaintiff's property or in its rental value, and it appears that she all the while continued there to reside, so that the amount of the verdict raises a doubt that the jury had any just conception of the measure of the defendant's liability and leads to an examination of the instructions that were given them for their guidance. The court having charged in substance that the owner of land over which a stream of water flows has a right that it should continue to flow over his premises in the quantity, quality and manner in which it is accustomed to flow by nature, subject to the right of upper land owners, over whose land it also flows, to make a reasonable use of the stream, and that this right is a property right, and that the city would have a right to use this stream for sewerage purposes, providing it could do so without material injury to the lot owners below, then instructed them, in effect, that the city is given control of its streets, and, under section 203 of the new municipal code (Revised Statutes, section 1536-857), of sewers, drains, ditches and watercourses, and charged with the duty of keeping its streets open and free from nuisances, and that it would be liable to the plaintiff in damages for the injuries she suffered in health and comfort from the nuisance created in the stream, if they found one was so created, whether it was created by the city or by others, if, after knowledge that they were creating a nuisance, it neglected to prevent them from so doing; and further that it was not essential to liability on the part of the city that it should have caused the entire injury, and that it was no defense that others in like manner had contributed to it, and that they 277 might consider any evidence offered by the defendant tending to prove such fact in mitigation of damages only and for no other purpose.