pany should continue to entertain its present intention, and should abide by the same in its action or conduct. We do not feel it absolutely incumbent upon us to reverse the grant of a harmless, though useless, injunction. To be restrained from doing what one has no intention to do may become inconvenient, if the intention should change; but until it does change there is no prejudice, except, perhaps, as to the matter of cost, and that, we think, may be left to abide the result of the case on final trial. The question of cost, merely, is not one upon which the grant or refusal of a temporary injunction ought to be brought to this court, since the losing party, by acquiescing in the interlocutory decision, will part with no right of contesting liability for costs when it comes to the final trial. The judge did not abuse his discretion in granting the temporary injunction, restricted as it was in the element of time. Judgment affirmed. Construction of Railways in Street-Payment of Compensation as Condition Precedent. See note 38 Am. & Eng. R. Cas. 452; Sears v. Marshalltown St. R. Co. (Iowa), 20 Id. 36; Mulholland v. Des Moines & W. R. Co. (Iowa), 10 Id. 99. OHIO SOUTHERN R. Co. V. MOREY. (Ohio Supreme Court, March 25, 1890.) Actions-Venue-Jurisdiction of Railroad Companies.-Section 5027, Ohio Rev. St., prescribing the counties within which a railroad company may be sued, relates solely to the jurisdiction of the person, and it is not necessary that the petition should state that its road passes into or through the county where the action is brought. A railroad company, like a natany other purpose than to object to such jurisdiction. Contracts-Acceptance of Proposition-Evidence. Where a written prop osition of its terms has been made, is accepted by the other party in parol, such is made by one party, which, after a parol modification of some written proposition is the best evidence of so much of the resulting con tract as it contains. done is not liable, ordinarily, for injuries that result from carelessness in Negligence Liability for Act of Contractor.-One who causes work to be he has let the work, without reserving to himself any control over the its performance by the employes of an independent contractor, to whom execution of it. But this principle has no application where a resulting injury, instead of being collateral and flowing from the negligent act of the employe alone, is one that might have been anticipated as a direct or probable consequence of the work contracted for, if reasonable care is 43 A. & E. R. Cas.-7 omitted in the course of its performance. In such case, the person causing the work to be done will be liable, though the negligence is that of an employe of an independent contractor. ERROR to Circuit Court, Fayette County. The defendant in error, George A. Morey, brought in the court of common pleas of Fayette county an action against the Southern Ohio Railroad Company, plaintiff in error, to recover damages claimed to have been sustained by him on account of himself and horse falling into a ditch that the plaintiff in error had caused to be dug, and left unguarded, across Water street, in the town of Washington, in said county, on the night of November 9, 1885. The record discloses that the plaintiff in error at the time of the accident owned and operated a railroad which ran through said town of Washington, and occupied part of said Water street, with its tracks, and owned and occupied a depot situate on lots owned by it that were adjacent to said street; that the ditch causing the injury had been dug during the day, the night of which the accident occurred, for the purpose of laying tiling for a drain from the depot above mentioned; that the ditch was dug entirely across that part of said street which was, or could be, used for travel; that it was from four to six or seven feet deep, about two and one-half feet wide at the top, and about two feet wide at its bottom, and the earth from it thrown out two or three feet high on both sides; that the night was very dark, and the ditch left wholly unguarded; that the defendant in error, having no knowledge that the ditch had been dug, and without fault on his part, fell into it, together with his horse, and thereby received the injuries of which he complained; and that the ditch was in fact dug by a man employed by the firm of R. P. Willis & Son, who did the plumbing work for the depot. The main contention between the parties at the trial was whether this plumbing was done under such an independent contract as would exonerate the railroad company from liability for the negligence of the contractor and his immediate servants. The defendant in error recovered a judgment in the court of common pleas. which the circuit affirmed, and this proceeding was brought to reverse both judgments. Any further statements of the facts requisite to a decision of the case will be found in the opinion. W. O. Henderson, C. W. Fairbanks, and Pavey & Pavey, for plaintiff in error. Van Deman & Chaffin, for defendant in error. BRADBURY, J.-1. Plaintiff in error contends that section of railroad 5027, Rev. St., prescribing the counties within which a railroad company may be sued, renders the action local, and to give the court jurisdiction of it the Jurisdiction petition must show that the railroad runs through companies. or into the county where the action is brought, and that, if it does not so appear, the defect can be reached by a general demurrer. In this view we do not concur. "The division of personal actions into local and transitory is not known in Ohio." Genin v. Grier, 10 Ohio, 209. This doctrine is as applicable to our present method of procedure as it was to that in use in 1840, when it was announced by this court. Section 5027 provides that "an action against * * * a railroad company may be brought in any county through or into which such road * * * passes." This section, like the other sections of chapter 5 of the Code of Civil Procedure that merely prescribe the county in which a defendant may be sued, relate only to the jurisdiction over the person. Neither a railroad company or other corporation, or even a natural person, is bound to appear in an action in obedience to a summons served out of the prescribed county. It is a privilege, however, that is personal, and may be waived; and this court has uniformly held that a defendant, by appearing in court, and, without objecting to its jurisdiction over his person, invoking any action in the cause, waives this priviege, and submits his person to the jurisdiction of the court. Harrington v. Heath, 15 Ohio, 483, 487, 488; Gilliland v. Sellers, 2 Ohio St. 223; Wood v. O'Ferrall, 19 Ohio St. 427; Thomas v. Pennrich, 28 Ohio St. 55; Fitzgerald v. Cross, 30 Ohio St. 450; O'Neal v. Blessing, 34 Ohio St. 33; Handy v. Insurance Co., 37 Ohio St. 366; Elliott v. Lawhead, 43 Ohio St. 171. The plaintiff in error not only appeared without objecting to the jurisdiction of the court of common pleas over its person, but moved to strike from the petition certain averments deemed by it to be objectionable, and, on that motion being overruled, filed a general demurrer to the petition, which being in turn overruled, it filed an answer and went to trial upon the merits. It thus, in the most ample manner, submitted its person to the jurisdiction of the court. 2. After the plaintiff below had introduced his evidence, Counsel for the railroad company moved the court to arrest it from the jury, and to direct a verdict in its favor on the ground that it did not tend to prove the facts in issue. This motion was overruled, and this ruling is now before us for review. The only controverted averment of the petition which it is contended the evidence did not tend to prove is that which states that the plaintiff in error, defendant below, caused the Digging of ditch-Authority of company. ditch to be dug. That the plaintiff in error owned the lots upon which the depot stood, and used and occupied the depot, was averred in the petition and not denied by the answer. The evidence of the plaintiff below showed that the ditch was dug for the purpose of draining the depot, and that the agent of the railroad company was present, and knew that it was being done, This we think not only tended to prove that the railroad company caused the ditch to be dug, but was sufficient to establish that fact, prima facie, at least. One observing a ditch freshly dug, and extending from a valuable building, to a lower level, on being informed that it was to be used for the purpose of draining the building, would be fully justified in inferring from those facts that the owner of the building caused the ditch to be dug. Contract position-Evi dence. 3. The plaintiff in error, in attempting to show that the ditch was dug by an independent contractor, for whose negligence it was not responsible, offered evidence tending to prove that it was dug by R. P. Willis Accepted pro- & Son, gas fitters and plumbers of Springfield, Ohio, in putting the water closets, urinals, etc., in the depot. It was shown that this firm had submitted to the railroad company a written proposition, containing the terms on which they would perform the work, and that, with two paro! modifications, it was accepted in parol by the railroad company, and the work awarded to them. Counsel for the railroad company then attempted to prove by parol this entire contract. To this objection was made by counsel for plaintiff below, on the ground that the written proposition, in so far as it contained the terms of the contract, was the best evidence thereof. This view was adopted by the court, and the parol evidence excluded. this there was no error. A contract may rest partly in writing and partly in parol; and in that case, while the part resting in parol must of necessity be proved by parol, nevertheless the writing itself is the best evidence of the part thereof which it contains. This proposition rests, not only upon principle, but is supported by numerous authorities, only a limited number of which need to be cited. 2 Pars. Cont. 553; Domestic Sewing Machine Co. v. Anderson, 23 Min. 57; Thurston v. Ludwig, 6 Ohio St. 1-8. In 4. The record discloses a number of other questions that counsel for the railroad company propounded to its witnesses, but except in two instances the testimony the witness was expected to give does not appear at all, and in the other two only inferentially, as follows: "The defendant, proposing to prove that R. P. Willis & Son had never done any work for de Parol evidence as to terms of contract. fendant, as its agent or servant, asked the following question of John S. Willis. Did you ever do any work for the Ohio Southern Railroad Company, as the agent or servant of said company?'" This question was objected to by counsel for plaintiff below, and ruled out by the court, to which exception was taken. Conceding that the introduction to the question sufficiently states what counsel expected to prove by the witness, yet there was no error in the ruling of the court, for the question was leading in form; but had it been free from fault in this respect, yet the evidence to be given in response to it, as indicated by the introduction, was not competent. It was not the province of the witness to state whether or not the firm of R. P. Willis & Son was the agent or servant of the railroad company in what they did; that depended upon the contract under which they operated. It was competent for the witness to state the terms of the contract in so far as they could be established by parol, but the relation which they bore to their employers was a question for the jury, under proper instructions from the court. 5. The only serious question in the case is presented by charges given or refused by the court. The court, among other things, charged the jury as follows: "If the act of inde pendent con. the work would be to injure third persons, or create necessary or probable effect of the performance of Liability for a nuisance, then the defendant is not relieved from tractor. liability because the work was done by a contractor over which it had no control in the mode and manner of doing it." To this the plaintiff in error excepted. The ques no control? causes work to be done in relation to it, the probable consequence of the performance of which will be to endanger others, or to create a nuisance, can shift from himself all responsibility for these probable consequences by letting the work to an independent contractor, over whom he reserves done? If so, then we may expect the prudent proprietor, Will a sound public policy permit this to be when he has work to be done which involves these probable Consequences, to provide for its performance by a carefully guarded contract, by which he retains no control over it whatever. The case of Clark v. Fry, 8 Ohio St. 358, is relied of a lot in the city of Toledo, being about to construct a upon by counsel for plaintiff in error. In that case the owner building on it, let the contract for its construction to a builder, and yielded to him during the entire period covered by the construction the exclusive possession and control of the premises. The plan of the building and the contract for its construction contemplated an excavation for an area extend |