Mahoning County Appeals.

real issues joined in the action. The trial court should have equal power to direct the procedure in the trial of a cause before it with that of the parties.

The right of the court upon its own initiative to require the jury to return specific findings of fact with a general verdiet, has been affirmed in a number of states having statutory provisions giving to either party the right to request the court to direct a jury to make such findings and return with their general verdict. Those returned by direction of the court will have the same effect upon the general verdict as those submitted by request of the parties. Thompson on Trial, Section 2673.

The statute, Sec. 11463, was adopted from the statute of Indiana on the same subject, and the presumption is that it was adopted with reference to the construction placed upon the Indiana statute by the courts of that state. Gale v. Priddy, 66 Ohio St. 400, 405 [64 N. E. 437].

The Supreme Court of that state have held that the trial court, under their statute, had the right to submit interrogatories to the jury to be answered by it in case a general verdict is returned.

"The court may, of its own motion, propound to the jury interrogatories to be returned with the general verdict." Senhenn v. Evansville, 140 Ind. 675 [40 N. E. 69]; Killian v. Eigenmann, 57 Ind. 480; Louisville, N. A. & C. Ry. v. Worley, 107 Ind. 320 [7 N. E. 215]; Halstead v. Wood, 48 Ind. App. 127 [95 N. E. 429].

We think the court did not err in submitting to the jury these interrogatories, but was within the discretionary right of the court.

An examination of these interrogatories shows that they were all, except the first and fourth, subject to the objection that they were not findings of facts alone, but mixed finding of fact and law. Brier Hill Steel Co. v. Ianakis, 93 Ohio St. 300.

The fourth interrogatory and its answer are not material to any issue in the case.

The first interrogatory and its answer read as follows:

Simms v. Stark Electric Ry.

"State, if possible, the nature and extent of decedent's intoxication? A. He was intoxicated but not to the extent that he did not know what he was doing at the time of getting off the car.

We have examined the evidence in this case, and while the decedent was under the influence of intoxicating liquor at the time he boarded and remained on defendant's car, yet there was nothing in his conduct that would indicate or notify the conductor of defendant company that he was in a helpless condition, or in fact was not in a condition to know where he was and his surroundings and fully care for himself.

We think that the answer of the jury to this interrogatory is fully justified by the evidence.

He was asked to leave the car because he had not paid his fare. He said he had a ticket, but neither produced the ticket nor offered to pay his fare in case he could not find it, and when requested to leave the car he did so. He was requested to leave the car and did leave the car at a regular stop of the defendant company for discharging and receiving passengers and where other passengers were alighting from the car. After this he went upon the private right of way of the defendant company and was there struck and so injured by another car of defendant company that he died. There is no testimony tending to prove that defendant's employees, in charge of the car which actually inflicted the injury that caused the death of plaintiff's intestate, were in any way negligent. An electric railroad company operating its cars in the open country is not negligent in requiring an intoxicated man to leave its car in the night time for non-payment of his fare at a regular stop for discharging and receiving passengers on a public highway when he, although noticeably intoxicated, was able to walk and talk intelligently. Elliot, Railroads, Sec. 1637; Roseman v. Carolina Central Ry. 112 N. C. 709 [16 S. E. 766; 19 L. R. A. 327]; Korn v. Railway, 125 Fed. 897 [63 L. R. A. 872]; Bageard v. Traction Co. 64 N. J. L. 316 [45 Atl. 620; 49 L. R. A. 424; 81 Am. St. 498]; Smith v. Railway, 114 N. C. 728 [19 S. E. 863, 923; 25 L. R. A. 287]; Wood v. Commissioners, 128 Ind. 289291 [27 N. E. 611].

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Mahoning County Appeals.

The railroad company was not required to anticipate that any injury would result to plaintiff's intestate from its requiring him to leave the car at this place after a failure to pay his fare.

After a full consideration of all the evidence we think the judgment of the court below is manifestly right and for that reason we are not authorized to reverse the judgment.

The judgment of the court below is affirmed. Exceptions noted.

Metcalf, J., concurs

SPENCE, J., dissenting.

The plaintiff in error began this action in the court of common pleas of Mahoning county, to recover damages for the wrongful death of Arthur Simms, averring in the petition that her decedent purchased a ticket and boarded one of defendant's cars, intending to go from Alliance to Sebring; that at stop 47, which was some distance out of the city of Alliance, he was wrongfully ejected by the conductor of defendant's car; that at the time he was put off the car he was intoxicated, and by reason thereof was stupid, bereft of intelligence, and unable to take care of himself, which fact was known to the conductor of the car; that it was in the night time and dark; that there was no direct road to decedent's home, except along defendant's railway, on which cars were passing frequently; and that shortly after he was ejected, through the negligence of defendant's employes, he was struck by another car, at or near to the highway crossing, where he was ejected, and died soon after from the effects of the injury.

The defendant company, in its answer, denied any acts of negligence on its part, and averred that Arthur Simms was guilty of contributory negligence in going upon the private right of way of the defendant company.

The case was tried to a jury, and after the evidence was all in, arguments of counsel and the general charge of the court, the court, on his own motion and against the objection and exception of both parties, submitted, in writing to the jury, five interrogatories, prepared by himself, and directed the jury that if they returned a general verdict to answer the interrogatories

Simms v. Stark Electric Ry.

The jury re

and return them into court with their verdict. turned a general verdict for the plaintiff, answered the five interrogatories, and returned them with the verdict.

The court refused plaintiff's motion for judgment on the verdict, and on motion of the defendant entered a judgment for the defendant, because the answers to the interrogatories were inconsistent with the general verdict.

The majority of this court refused to consider three of the special interrogatories because they were "mixed finding of fact and law," and one because the interrogatory and its answer are not material to any issue in the case. Leaving the following interrogatory and its answer as the only one considered: "State, if possible, the nature and extent of decedent's intoxication? A. He was intoxicated but not to the extent that he did not know what he was doing at the time of getting off the car." The majority of the court do not find, or state in the opinion, that the interrogatory and answer determined the issue or the controlling fact in the case.

Defendant company introduced evidence, at the trial, showing that Arthur Sims was intoxicated while riding on defendant's ca; that he rode on the rear platform of the car from Alliance to the place where he was ejected; that when the conductor first asked him for his fare he replied that he had a ticket, fumbled through his pockets and said he could not find it; when the conductor again went to him for his fare he did not produce the ticket or offer to pay his fare, and the conductor put him off the car; that it was in the night and dark; that stop 47 is in the country; that shortly after he was ejected from the car the motorman of another of defendant's cars, as he was approaching the highway crossing where Simms was ejected, saw an object on the track, which object proved to be Simms lying on the track where he was struck by defendant's car and injured so that he died soon after the injury.

From the evidence in the case it is fair to presume that, almost immediately after leaving the car, Simms lay down, or fell down on the tracks of the company as when he was discovered he was at or near to the highway crossing where he was ejected from the car; that he was in a helpless or unconscious

Mahoning County Appeals

condition from the effects of his intoxication. From the undisputed evidence in the case any reasoning mind would be led to the inevitable conclusion that the answer to the interrogatory, as returned by the jury, that, "He was intoxicated but not to the extent that he did not know what he was doing at the time of getting off the car," is not justified by the evidence.

The only statute in this state authorizing the court to submit special interrogatories to the jury to be answered and returned with a general verdict, is Sec. 11463 G. C. which provides:

"When either party requests it, the court shall instruct the jurors, if they return a general verdict, especially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk."

Quoting from the majority opinion:

"It is evident from a reference to the section of the General Code, which is referred to, that the statute under which the court directs the jury to return a special finding of facts with the general verdict, does not specifically provide for the court, upon its own motion, making such direction, so that if it was not error for the court to do so, it must be under the inherent power of the court to direct and control the procedure in the trial of

In another part of the opinion it is said:

"The statute, Sec. 11463, was adopted from the statute of Indiana on the same subject, and the presumption is that it was adopted with reference to the construction placed upon the Indiana statute by the courts of that state. The Supreme Court of that state have held that the trial court, under their statute, had the right to submit interrogatories to the jury to be answered by it in case a general verdict is returned. The court may, of its own motion, propound to the jury interrogatories to be returned with the general verdict. Senhenn v. Evansville, 140 Ind. 675 [40 N. E. 69]; Killiam v. Eigenmann, 57 Ind. 480; Louisville, N. A. & C. Ry. v. Worley, 107 Ind. 320 [7 N. E. 215].”

The opinion does not state which is the correct construction of our statute. The first proposition is that the statute does not