Hamilton County. on Beecher street, their property being improved by dwellings of a beautiful and substantial character. It is admitted, however, that the railway company is not negligent in the operation of its locomotives and in the handling and switching of its cars, and that it does not create any more noise, smoke, soot, or offensive vapors than is necessarily incident to the proper use of its trains and for the purposes for which said terminals were built. There is no doubt if that which the defendant railway company is doing is an illegal trespass upon the property rights and comfort of plaintiffs, that a court of equity will enjoin the same. It is contended, however, on behalf of the defendant company, that unfortunate as this may be and offensive and as much of a nuisance as it may be to complainants, it is nevertheless unavoidable, and incidental to the transaction of its railway business and the performance and doing those things as a quasi public corporation, for which it is chartered and enfranchised to do, and that the things complained of are damnum absque injuria. A large number of cases have been cited by counsel for plaintiff, with the leaders which bring out the principles underlying the parties' respective rights: Baltimore & P. Ry. v. Baptist Church, 108 U. S. 317 [2 Sup. Ct. Rep. 719; 27 L. Ed. 739]; Chicago & G. W. Ry. v. Methodist E. Church, 102 Fed. Rep. 85; both of which cases were considered by this court in the case of Cincinnati Connecting Belt Ry. v. Burski, 26 O. C. C. 486. No case exactly like the case at bar has been cited to us. We begin with the statement that the railway company has no right to subject an adjacent property owner to any kind of a nuisance, be it of noise, or dirt, sufficient to be cognizable at law, for its own convenience, interest. or advantage. It is recognized that the operation of a main line of a railroad, either in a public street or on its own private right of way is more or less of a nuisance to all the abutting and adjacent property which it passes, but for reasons of public necessity, the courts have refused to recognize such nuisance as being a nuisance, cognizable by the law. It is said that the law must shut its eyes to the wrong, such as it may be, perpetrated upon these abutting property owners, else the building, maintenance and operation of railroads would be impossible, and that hence whatever such property owners may suffer, is said to be damnum absque injuria. The United States Supreme Court in the case of Baltimore & P. Ry. v. Baptist Church, supra, compelled the railroad company to re Ross v. Railway. move its roundhouse, and shops from the vicinity of the Fifth Baptist Church, for the reason that the railroad company could maintain its roundhouse and shops some place else, and it made no difference at what inconvenience or disadvantage to the company. The same was true of the hydrant and station involved in Chicago & G. W. Ry. v. Methodist E. Church, supra. There was no uncertainty in the court's expression as to the hydrant, but the court was not so clear as to the legal status of the passenger station, but inasmuch as the station and hydrant were joined and confused, the court enjoined the whole matter. The question then herein involved is, are the terminals of a railway, which are necessary to properly serve the public, for the service of which the railway company is chartered and permitted to operate, different in character, before the law, from its main tracks? Of course it is clear that a railroad would not be a railroad, and so far as serving the public is concerned, would be an empty and vain thing, without terminals reasonably convenient and accessible for the shipping public. One can also well conceive the main line of a railroad with three, four or five parallel tracks operating so many trains, as to actually be as much or more of an annoyance than a terminal yard. In the consideration of this case, the court assumes because there could be no object in the railroad or anybody doing otherwise, that the site of these terminals has been selected in good faith and with due consideration for the receiving and shipping public. It is what the public needs and requires, that furnishes whatever saving grace there may be, if any, to the railroad. The railroad on its own account, receives no consideration. The court will not listen to complainants' saying that these terminals might just as well be located a mile further out in the country or a half mile further into the city, because the same questions could there arise and the naked legal question as to such terminals must at some place be met. In the absence of all charges of negligence or want of due diligence in the selection of a location or bad faith, we incline to the view that these terminals must be put on the same footing as the main tracks of a railroad, and that the nuisance and annoyance they may inflict, must be said to be damnum absque injuria. Further, there are other elements involved in this case which lead us to somewhat resolve our doubts against the complainants. The relative topographical situation of complainants' and defendants' property happens to be a little fortunate. It makes the nuisance not quite so bad as it might be, on account of the elevation of the sites of these handsome residences and their distance away on their spacious lots, so that Hamilton County. if they have a separate property right which is injured and entitled to protection, we would be compelled practically to hold that the same is true of nearly all the property within a quarter of a mile radius of these terminals, which would make the establishment of terminals and the convenience of unloading and receiving freight practically prohibitive, and be a denial to the public of one great, modern utility. There is another ground which would justify the court in denying an injunction, and that is, the court being in doubt as to the legal quality of the acts done by the defendant railway company and complained of by complainants, that until the exact character of the same is established in an action at law, a court of equity should be slow to intervene by injunction. Injunction in cases of nuisance is permitted on account of the continuous nature of the acts which are legal trespasses and to prevent a multiplicity of suits. There being a good deal of doubt as to whether the things done here are in fact a nuisance, cognizable at law, or an illegal trespass upon the rights of complainants, the court is inclined to think that it should withhold an injunction until these rights are ascertained and defined in an action at law. An injunction will therefore be denied. STREET RAILWAYS-NEGLIGENCE. [Hamilton (1st) Circuit Court, January, 1905.] Giffen, Jelke and Swing, JJ. CINCINNATI, L. & A. ELEC. ST. RY. V. GEORGE H. LOHE, ADMr. 1. STANDING ON PLATFORM OF INTERURBAN CAR, WHILE RUNNING THROUGH OPEN COUNTRY, NOT PROXIMATE CAUSE OF INJURY, WHEN. Where a passenger on an interurban railway car was thrown therefrom and killed by the derailing of the car while running through the open country, the fact that he was standing on the platform at the time cannot be held to be the proximate cause of his death, when the evidence does not disclose that there was available or reasonably convenient room on the inside of the car; that the injury would not have happened had he been on the inside; that he had notice of a sign prohibiting passengers from standing on the platform; or that he was ordered inside the car by the company's servants, and refused to go. 2. COURT MAY DECLARE CONDUCT NEGLIGENCE PER SE, WHEN. The court may find as a matter of law that certain conduct constitutes comtributory negligence per se, when it is such an act that all men must conIclude that it was the proximate cause of the injury complained of. Railway v. Lohe. ERROR to Hamilton common pleas court. Peck, Shaffer & Peck, for plaintiff. A. V. Benedict, for defendant. JELKE, J. The law of Ohio, and particularly the law in this case, was laid down by the Supreme Court, when this same case was before it, and is reported in the Cin. L. & A. Elec. St. Ry. v. Lohe, 68 Ohio St. 101 [67 N. E. Rep. 161]: "1. An interurban electric railroad is classed as a street railroad by the statutes of this state. "2. While such interurban railroad companies are subject to the same regulations, and have all the powers of street railroad companies, so far as applicable, the law of negligence governing the standing on a platform of a moving street car in a municipality, is not applicable to the case of standing on such platform of a moving interurban car in the open country. "3. The law of negligence governing the standing on a platform of a moving interurban car outside of a municipality, is the same as in the case of steam cars; and where a rule of the company prohibits passengers from standing on the platform, or where the passengers upon request refuse to enter the car, there being in either case vacant seats, they may remain on the platform at their peril. "4. In a contract for safe carriage there is an implied agreement that the passenger will obey the reasonable rules of the carrier; and where the passenger purposely violates such rule, and is thereby injured, he cannot recover damages from the carrier in an action on the contract." After such reversal, the case was remanded to the court of common pleas and there tried again, resulting once more in a verdict for the plaintiff, Lohe, administrator; upon which the court rendered judgment, error to which is now prosecuted to this court. If the case as submitted to the jury at this recent trial is substantially the same case as was contained in the record which went to the Supreme Court, the verdict below cannot be sustained, as the same conclusion must be reached as was reached by the Supreme Court. An examination of the record shows that at this hearing the testimony presented a somewhat different case and developed issues of fact on all the matters found proven or assumed by the Supreme Court in its opinion. Probably in view of the Supreme Court's opinion counsel in pre Hamilton County. senting his case emphasized whatever of dispute there was in these issues of fact. In this second trial, the whole first half of the case was eliminated by an agreed statement in regard to the alleged negligence of the defendant, The Cincinnati, Lawrenceburgh & Aurora Electric Street Railroad Company, which was as follows: "For the purpose of facilitating the trial of this case, it is hereby agreed that neither party shall offer any evidence whatever on the question of the negligence of the defendant, that is, the railroad company, but that question shall be considered and determined as though the plaintiff had offered sufficient evidence to establish the allegations of the petition as to the negligence of the defendant. This agreement not to limit the right of either party in the offer of evidence as to any or all other questions.in the case. It appears in the testimony that the decedent, William Lohe, was standing upon the platform of defendant's car at the time when the car was derailed. It is claimed on behalf of the plaintiff that he was there because there was no available or reasonably convenient room in the car, and that being there under these circumstances, it was not negligence per se. When last before the Supreme Court, the court said, page 111: "In the case at bar the deceased was ordered into the car by the conductor, and requested to go in by the assistant conductor, there were vacant seats inside, a sign was up, 'Passengers not allowed on the platform,' and yet he remained on the platform because he wanted to smoke a cigar." In the case of Cincinnati, D. & T. Trac. Co. v. Kent, 27 O. C. C. 000, this court following the decision of the Supreme Court in Cin. L. & A. Elec. St. Ry. v. Lohe, supra, and the case of Hickey v. Railway, 96 Mass. (14 Allen) 429, which our Supreme Court approved, held that it was negligence for a passenger to voluntarily and unnecessarily stand upon the platform of an interurban car when there was standing room inside. The first proposition of the syllabus in Hickey v. Railway, supra, is: "A traveler by railroad cannot maintain an action against a railroad company to recover damages for a personal injury sustained by him in consequence of his voluntarily and unnecessarily standing upon the platform of a passenger car, while the train is in motion." As the case was submitted to the jury at this latter hearing, there was conflicting testimony on this issue as to whether or not there was standing room within the car. It appears that parties boarded this car and subsequently found seats. Most of these parties, however, were |