Franklin County.

all times and places. It must "not exceed fourteen miles per hour including stops." To reach the limit of the ordinance it is permissible to run a part of the time at a speed greater than fourteen miles per hour, in order to make up the time lost in stopping. The ordinance regulates the speed only to the extent that at the end of the run the car must not have exceeded the average of fourteen miles per hour. Whether the speed is excessive under the ordinance depends in some degree upon the conditions affecting the public safety at the particular time and place in question. It follows that whether the speed of the car at the given time and place was negligent, is always an open question, and that it exceeded fourteen miles per hour is not conclusive on the question of negligence, even though the speed of the car was the proximate cause of the injury. The proximate cause is not necessarily negligence. The charge was misleading and prejudicial.

It was not error to charge in effect that the motorman should have seen the plaintiff, if in the exercise of ordinary care he could have seen him in time to prevent the injury. Operating the car on the street at the time and place in question, the company had reason to anticipate the presence of the plaintiff on the track, and, therefore, owed him the duty to see, if in the use of ordinary care it could have seen him in time to avoid the collision. The rule in Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571] does not apply. In that case the company had the right to a clear track and had no reason to apprehend a collision with the defendant in error.

The court instructed the jury that, "A street railway company is bound to furnish and maintain safe cars and appliances, whether old or new, but the employment of the appliances which are in general and common use in cities of this country cannot be said to be negligent." And also that, "If such fender was at that time the best appliance defendant could, after due investigation, then procure, the defendant would not be liable." The measure of the duty of the company to the plaintiff in furnishing cars and appliances is ordinary care. In so far as the charge implies that the cars should be at least such as are in common use, and the fender the best that could be procured, it is confusing and misleading for, that it too nearly defines the duty of the company as a common carrier to its passengers, instead of to pedestrians. As to cars the court was not entitled, under the pleadings, to fix a standard and as to the fender the standard was too high. It should have been left to the jury to determine from the evidence what was ordinary care under the circumstances.

It was not error to charge, for the plaintiff in this case, the mod

Railway v. Connor.

There is a pre

ified rule of ordinary care according to his years. sumption of law that an infant more than fourteen years of age is sui Juris in the sense that he is chargeable with negligence, but the measure of his capacity in that regard is a question for the jury.

(7) A party cannot be said to have had a fair trial when the jury is required to view the case through an atmosphere of passion and prejudice, excited by the conduct of counsel. From the opening statement to the close of the argument that was the condition in the trial of this cause in the court below, as is disclosed by the record. It would be difficult to find a case that more nearly approaches the ancient trial by battle. The zeal of counsel on behalf of their client, which, decorously exerted is always commendable, no doubt, will explain much of the hot blood and bad temper that abound, but the modern standard of decorum and fair argument was flagrantly violated. Whenever there is violent contention between counsel, the jurors are led to take sides because it is human to do so, the result being, that passion and prejudice find easy lodgment in their minds and vitiate their verdict. The instances of misconduct are too numerous for recital in this opinion.

Pages 79, 148 and 1142 of the record evidence, and the parts of the argument designated by the numbers 20, 24, 25 and 30 in the motion for a new trial may be referred to as characteristic violation of the rule. It is not a sufficient excuse to say that there was provocation, and that opposing counsel were guilty of the same offense. If theirs had been the verdict and that were found to be true, theirs would be the reversal. Charges of unprofessional conduct against opposing counsel should not be made in the trial of a cause, but in a proceeding instituted to inquire into the truth of the charges. They should never be made to influence the verdict of a jury, or the judgment of a court. There was prejudicial error in the conduct of counsel.

Except in so far as the foregoing particulars modify the trial court's view of the law of the case, we find no other error in the charge or refusal to charge.

We find no other error on the record.

We are moved to say that the record in this case is unnecessarily large. It could be reduced to one-fourth of its present compass and still be certified to contain all the evidence. The cross-examinations are extended beyond purpose or reason.

The judgment is reversed and the cause remanded for a new trial. Dustin and Sullivan, JJ., concur.

Franklin County.

MUNICIPAL CORPORATIONS-CONTRACTS-OFFICERS. [Franklin (2nd) Circuit Court, February 20, 1905.]

Dustin, Walters and Sullivan, JJ.

(Judge Walters of the Fourth Circuit sitting in place of Judge Wilson.)

JOHN M. WALCUTT V. COLUMBUS (CITY).

1. RESOLUTION OF COUNCIL CREATING RIGHT NOT EFFECTIVE UNTIL APPROVED BY MAYOR UNDER ORIGINAL SEC. 1545-91 (REPEALED 96 O. L. 96; SEE LAN. R. L 3107; B. 1536-626).

A resolution of a municipal council involving expenditure of money, or creating a right, cannot take effect, under original Sec. 1545-91 Rev. Stat. (repealed 96 O. L 96; see Lan. R. L. 3107; B. 1536-626), until it is presented, duly certified by the clerk, to the mayor for approval.

2. DIRECTOR OF LAW NOT BOUND BY RESOLUTION NOT APPROVED UNDER ORIGINAL SEC. 1545-91 (REPEALED 96 O. L. 96; SEE LAN. R. L. 3107; B. 1536-626). The director of law of a municipality is not bound by any direction to him contained in a resolution adopted by council, but which was not approved by the mayor as required by original Sec. 1545-91 (repealed 96 O. L. 96; see Lan. R. L. 3107; B. 1536-626), and where a motion for a judgment against the municipality is based upon such defective resolution, a duty devolves upon the director of law to notify the court of the invalidity of such acts upon which the request for judgment is predicated.

3. SUBSEQUENT LEGISLATION APPLIES TO PRIOR CONTRACTS, WHEN. Where the contract out of which a claim against the municipality arose was entered into prior to the passage of the act requiring the mayor's approval, and a dispute arises as to the amount due, the defendant asserting that nothing is due, and where as part consideration for the agreement of compromise, it was inserted therein "that as the case has already cost the city several thousand dollars in costs and attorneys' fees, and if not settled is likely to cost many thousands of dollars more," the plaintiff has no such vested right under his contract as forbids the application of the act, subsequently passed, requiring the mayor's approval.

ERROR to Franklin common pleas court.

E. P. Evans, G. H. Stewart, F. A. Davis and Cyrus Huling, for plaintiff in error.

J. M. Butler, for defendant in error.

WALTERS, J.

The resolutions passed by the city council April 13, 1903, and April 27, 1903, were of such character that they fall within the provisions of original Sec. 1545-91 (repealed 96 O. L. 96; see Lan. R. L. 3107; B. 1536-626), where it is provided that a resolution "involving an expenditure of money" or "creating a right" "shall, before it takes. effect be presented, duly certified by the clerk, to the mayor of the city, for approval."

These resolutions were not approved by the mayor, and therefore never took effect.

Walcutt v. Columbus.

The director of law was not bound by any direction to him contained in those resolutions, nor was the court below. It became and was the duty of the director of law, when the motion for judgment together with the resolutions, were presented to the court, to notify it of the invalidity of such acts upon which the request for judgment was predicated.

Where the contract, out of which the claim arose, was entered into prior to the passage of the act requiring the mayor's approval, and a dispute arises as to the amount due, the defendant asserting that nothing is due, and where as part consideration for the agreement of compromise, it was inserted therein, "That as the case had already cost the city of Columbus several thousand dollars in costs and attorneys' fees, and if not settled is likely to cost many thousands of dollars more," the plaintiff has no such vested right under his contract, which forbids the application of the act, subsequently passed requiring the mayor's approval.

Judgment affirmed.

Dustin and Sullivan, JJ., concur.

CONTRACTS-MASTER AND SERVANT.

[Franklin (2nd) Circuit Court, November, 1904.]

Dustin, Wilson and Sullivan, JJ.

ROBERT S. JENNINGS V. GEORGE A. BETHEL,

HARSH AND UNCONSCIONABLE CONTRACT BETWEEN EMPLOYER AND EMPLOYE NOT EN FORCED BY COURT OF EQUITY, ETC.

A contract between an employer and employe whereby the employe is bound for a term of two years, but which only binds the employer for one week; which confers a discretion solely upon the employer as to the termination of the contract, and empowers him to discharge the employe without good cause, and for which the employe has no redress; and which prohibits the latter for eighteen months thereafter from engaging in a similar business, whether the employer continues in the business or not, is so harsh and unconscionable that it will not be enforced by a court of equity at the suit of the employer who seeks to enjoin the employe from engaging in the same business after his discharge without cause.

ERROR to Franklin common pleas court.

F. S. Monnett, for plaintiff in error:

The contract, in question was void as against public policy, in that it required the employe, to conduct a lottery in connection with the introduction of the system or scheme, and as a part of said employe's contractual duties under said contract. Section 6, Art. 15 Ohio

Franklin County.

Const.; Lan. R. L. 10571, 10572, 10573 (R. S. 6929, 6930, 6931); Jackson Steel Nail Co. v. Marks, 2 Circ. Dec. 584 (4 R. 343; Hooker v. DePalos, 28 Ohio St. 251; State v. Lark, 4 Dec. 241 (3 N. P. 155); Harper v. Crain, 36 Ohio St. 338 [38 Am. Rep. 589].

Agreement attempting to disregard a statutory provision, is by all authorities, clearly illegal. Spurgeon v. McElwain, 6 Ohio 442 [27 Am. Dec. 266]; State v. Findley, 10 Ohio 51; Bloom v. Richards, 2 Ohio St. 387; Huber v. German Congregation, 16 Ohio St. 371; Delaware Co. (Comrs.) v. Andrews, 18 Ohio St. 49; Hooker v. DePalos, 28 Ohio St. 251; Leake, Contracts 723; Carter v. Lillie, 2 Circ. Dec. 204 (3 R. 364); Roll v. Raguet, 4 Ohio 400 [22 Am. Dec. 759]; Raguet v. Roll, 7 Ohio (pt. 1) 76; Raguet v. Roll, 7 Ohio (pt. 2) 70; McQuade v. Kosecrans, 36 Ohio St. 442; Williams v. Englebrecht, 37 Ohio St. 383; Thomas v. Cronise, 16 Ohio 54; Veach v. Elliott, 1 Ohio St. 139; Ward v. Ritt, 6 Dec. Re. 1129 (10 Am. L. Rec. 567); Hafer v. Railway, 9 Dec. Re. 470 (14 Bull. 68); Broom's Leg. Max. 694; Goudy v. Gebhart, 1 Ohio St. 262; State v. Buttles, 3 Ohio St. 309; Rogers v. Tucker, 7 Ohio St. 417; Trimble v. Doty, 16 Ohio St. 118; Robinson v. Robinson, 17 Ohio St. 480; Allen v. Bank, 23 Ohio St. 97; Harper v. Crain, 36 Ohio St. 338 [38 Am. Rep. 589]; Kahn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203]; Hershey v. Weiting, 50 Pa. St. 240; Wheeler v. Sage, 68 U. S. (1 Wall.) 518 [17 L. Ed. 646]; White v. Crew, 16 Ga. 416; Creath v. Sims, 46 U. S. (5 How.) 192, 207 [12 L. Ed. 110]; Wilson v. Bird, 28 N. J. Eq. 352; Medford v. Levy, 2 L. R. A. 368n; Pittman v. Pittman, 11 L. R. A. 458n.

The contract is in restraint of trade. Lufkin Rule Co. v. Fringeli, 57 Ohio St. 596 [49 N. E. Rep. 1030]; Kevil v. Oil Co. 11 Dec. 114 (8) N. P. 311); Field Cordage Co. v. Cordage Co. 3 Circ. Dec. 613 (6 R. 615); Hoffman v. Brooks, 6 Dec. Re. 1215 (12 Am. L. Rec. 747; 11 Bull. 258); McBirney & Johnston White Lead Co. v. Lead Co. 8 Dec. Re. 762 (9 Bull. 310); Lange v. Werke, 2 Ohio St. 519; Thomas v. Miles, 3 Ohio St. 274; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666.

Lack of mutuality. Waterman, Spec. Perf. Sec. 196; Rutland Marble Co. v. Ripley, 77 U. S. (10 Wall.) 339 [19 L. Ed. 955]; Meason v. Kaine, 63 Pa. St. 335; Hughes v. Roth, 7 Circ. Dec. 441 (18 R. 804); Paragon Oil Co. v. Familton, 5 Dec. 219 (5 N. P. 23).

Bachman & Bachman, for defendant in error.

DUSTIN, J.

June 9, 1903, George A. Bethel, doing business under the name of the Merchant's Premium Stamp Company, and Robert B. Jennings executed the following: