Akron v. Keister.

the time when he attempted to cross and sustained the injuries of which he complains? Answer. Yes.

"3. Could the plaintiff easily have avoided this crossing? Answer. Could have avoided, but not easily."

The remaining findings are that plaintiff below was not negligent and that he did not assume the risk. The last is a pure conclusion of law and should not have been submitted to the jury. It cannot in any degree neutralize the force of the second finding, which is to the effect that plaintiff knew the condition of the crossing when he attempted to pass over. It is immaterial whether its dangers were or were not manifest generally, if its condition was known to him. He had other means, though less easy, of reaching his destination, but he chose rather to drive over this crossing knowing its condition. This is clearly the voluntary assumption of a known risk, such as would defeat a recovery under the circumstances of this case.

In Village of Conneaut v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236], held that one who goes voluntarily upon an accumulation of ice on a walk of a village cannot maintain an action against such village for a personal injury resulting to him, if the source of danger is plainly visible. To the same effect are Schaefler v. Sandusky (City), 33 Ohio St. 246 [31 Am. Rep. 533]; Cleveland v. Stofer, 1 O. S. C. D. 300; 33 Bull. 227. It is clearly implied, in Farmer v. Railway, 60 Ohio St. 36 [53 N. E. Rep. 447], that the same rule applies to the driving of teams and vehicles into dangerous places in the public streets of a municipality.

An examination of the testimony shows that the jury could not properly have found otherwise than as they did as to the defendant in error's knowledge of the condition of the crossing.

We hold, therefore, that this judgment is against the weight of the evidence and is contrary to law, and that the court erred in refusing to render judgment on the special findings for the defendant below. The judgment for the plaintiff below is accordingly reversed.

We can conceive of no useful purpose to be served by remanding this case for a fourth trial, and, therefore, proceeding to render the judgment which the court of common pleas should have rendered, we enter judgment for the plaintiff in error.

Marvin and Winch, JJ., concur.

Franklin County.

ASSESSMENTS-STREETS-EVIDENCE

[Franklin (2nd) Circuit Court, March 25, 1905.]

Dustin, Wilson and Sullivan, JJ.

SAMUEL BORGER ET AL. V. COLUMBUS (CITY) ET AL.

1. PETITIONING FOR STREET IMPROVEMENT EVIDENCE THAT ABUTTING PROPERTY WILL BE SPECIALLY BENEFITED.

The act of abutting property owners in petitioning for a certain street improvement, is evidence tending to show that the improvement, if made, will specially benefit their property, and may properly be treated as an acquiescence on their part to the assessment to pay the cost thereof; but such act does not estop them from challenging an illegal assessment. 2. DEPRESSION IN REAL ESTATE MARKET DOES NOT DESTROY SPECIAL BENEFIT TO PROPERTY FROM STREET IMPROVEMENT.

Where there was a serious depression in the real estate market immediately after the making of a street improvement, the mere fact that the owners of the abutting property could not get any more for their property after than before the improvement, is not sufficient to show that their property was not specially benefited by the improvement.

APPEAL from Franklin common pleas court.

G. B. Okey and F. A. Davis, for plaintiff.
J. M. Butler, for defendant.

SULLIVAN, J.

Plaintiffs in their petition in this cause admit that a special benefit accrued to their respective lots, by the improvement set forth in their petition, claiming, however, that it did not exceed the amount of $2.50 per front foot. The city, by its answer claims that the assessment is not in excess of benefits.

The testimony of plaintiff's witnesses, with one exception, is, that there was no special benefit from the improvement; that the market value of the property was no higher after than before the improvement, whilst that of the city is, that the benefit is greater than the assessment. One witness, David Scolie, for defendant, states that the cost was too great in his opinion; the benefits were six dollars per front foot. The witnesses of plaintiff are residents, owners, and occupiers of the property assessed, whilst those called by the city are residents in other parts of the city, not owners of any property upon State street, and mostly persons engaged as real estate agents, all these with the exception of Scolie, testified that the special benefits were greater than the assessments. Upon this testimony the court is asked to determine the amount of special benefits, if any, to the property from the improvement.

Borger v. Columbus.

Plaintiffs contend that the testimony of those owning property and residing upon the street improved are for this reason entitled to more credit, being the better judges as to the values of their property before and after the improvement, whilst the city contends that its witnesses because of their occupation as real estate agents, wholly disinterested in the result of this cause, are the better judges and hence their testimony is of greater weight. The question is to be determined from all the testimony considering the interest of witnesses along with the opportunities of knowing the matters about which he or they are called upon to testify. First, we have the admission of plaintiffs that their respective properties are benefited at least two dollars and fifty cents per front foot; one of plaintiff's witnesses testifies it amounts to about three dollars front foot. Scolie, who owns and occupies property upon the street that is assessed, considering the condition of the street before the improvement, is of the opinion that the benefit amounted to six dollars front foot.

Several witnesses testify that following the completion of the improvement came a serious depression in the market value of real estate; that the property upon this street like all other real estate similarly situated in the city was affected by the depression; that there was but little or no demand for real estate and scarcely any sales, particularly upon this street, and hence it could not be said that the reason why owners of property upon this street were not able to get any more for their property after than before the improvement, was because it was not benefited. If there was no demand because of the depression in prices, the improvement could not create a demand. It must be admitted, as it is in this case, that a street improvement of this character is a special benefit to abutting property. What that benefit is here, must be determined from the testimony, in which we find a serious conflict.

We notice by an exhibit introduced that some of the plaintiffs in this case by petition to the board of public works, asked that the improvement be made with Hallwood block and the contract awarded to the Ohio Paving Company. This shows that these parties were aware of what the improvement would cost, and it may be properly treated as an acquiesence on their part, if not an expression of a desire that the improvement be made. Whilst this does not estop them from challenging an illegal assessment, yet we think it tends to prove that owing to the change the improvement would make in the street a special benefit would accrue to their property.

The conclusion we have reached is, that eleven of the semiannual

Franklin County.

installments are equal to the special benefits accruing to the respective properties of the plaintiffs' from the improvement, and it is therefore ordered and adjudged that all assessments over and above said amounts be enjoined and cancelled. Upon the question of interest we agree with the judgment of the court below, and the judgment here upon that question will be the same. The costs will be taxed to the city.

Dustin and Wilson, JJ., concur.

ASSIGNMENTS.

[Lucas (6th) Circuit Court, September Term, 1905.]

Haynes, Parker and Wildman, JJ.

P. L. ANDREWS v. T. A. RODIJKEIT.

ASSIGNMENT OF UNEARNED WAGES UNDER PRESENT CONTRACT OF EMPLOYMENT, VALID; CONTRA, WHEN NO SUCH CONTRACT EXISTS.

A private individual may, for a valuable consideration, assign wages to be by him earned in the future under an existing contract of employment; but an assignment of wages to be earned from someone not then the assignor's employer, and there being no contract of future employment, is a mere possibility not coupled with an interest, and is unenforcible and void.

ERROR to Lucas common pleas court.

Myer Geelerd, for plaintiff.

Potter & Potter, for railway.

J. H. Boyd, for I. C. Chandler and T. A. Rodijkeit:

An assignment of wages to be earned in the future in absence of a contract of employment is inoperative to convey such wages, and is void being against public policy. 7 Am. & Eng. Enc. Law (2 ed.) 150; Bisphorn's Princ. (5th ed.) Sec. 363; Rose v. Roofing Co. 41 Bull. 21; Cooper v. Douglass, 44 Barb. 409; Fairgrieves v. Navigation Co. 2 Phila. 182; Mandeville v. Welch, 18 U. S. (5 Wheat.) 277 [5 L. Ed. 87]; Gibson v. Cooke, 37 Mass. (20 Pick.) 15 [32 Am. Dec. 194]; Lunn v. Thornton, 1 Com. B. 379; Gale v. Burnell, 7 Q. B. 850; Winslow v. Insurance Co. 45 Mass. (4 Metc.) 306 [38 Am. Dec. 368]; Field v. New York, 6 N. Y. (2 Seld.) 179 [57 Am. Dec. 435]; Langton v. Horton, 1 Hare 549; Calkins v. Lockwood, 16 Conn. 276 [41 Am. Dec. 143]; Chippendall v. Tomlinson, 4 Dougl. 318; Jermyn v. Moffitt, 75 Pa. St. 399; Lehigh Val. Ry. v. Woodring, 116 Pa. St. 513 [9 Atl. Rep. 58]; Godcharles v. Wigeman, 113 Pa. St. 431 [6 Atl. Rep. 354]; 2 Story, Eq. Jurisp. Sec. 1040.

Andrews v. Rodijkeit.

The assignment in question is inoperative, there being nothing upon which for it to operate. Tolman v. Roofing Co. 9 Dec. 501 (6 N. P. 467); Hart v. Gregg, 32 Ohio St. 502; Brooks Co. v. Tolman, 27 0. C. C. 321; Kane v. Clough, 36 Mich. 436 [24 Am. Rep. 599]; State v. Hastings, 15 Wis. 75; Hawley v. Bristol, 39 Conn. 26; Metcalf v. Kincaid, 87 Iowa 443 [54 N. W. Rep. 867; 43 Am. St. Rep. 391]; Boylen v. Leonard, 84 Mass. 407; Lunn v. Thornton, 1 Com. B. 379; Gale v. Burnell, 7 Q. B. 850; Chippendall v. Tomlinson, 4 Dougl. 318; Williams v. Chambers, 10 Q. B. 337; Cooper v. Douglass, 44 Barb. 409; Otis v. Sill, 8 Barb. 102; Lightbody v. Smith, 125 Mass. 51; Low v. Pew, 108 Mass. 347 [11 Am. Rep. 357]; Twiss v. Cheever, 84 Mass. 40; Mulhall v. Quinn, 67 Mass. (1 Gray.) 105 [61 Am. Dec. 414]; Brackett v. Blake, 48 Mass. (7 Metc.) 335 [41 Am. Dec. 442]; Rice v. Stone, 83 Mass. (1 Allen) 566; Head v. Goodwin, 37 Me. 181; 2 Kent's Commentaries (10 ed.) 468, 641; Jones v. Richardson, 10 (Metc.) 481; Hartley v. Tapley, 68 Mass. (2 Gray) 565; Gardner v. Hoeg, 35 Mass. (18 Pick.) 168; Tripp v. Brownell, 66 Mass. (12 Cush.) 376; Crocker v. Whitney, 10 Mass. 316; Hall v. Jackson, 37 Mass. (20 Pick.) 194: Carrique v. Sidebottom, 44 Mass. (3 Metc.) 297; Wade v. Bessey, 76 Me. 413; Farnsworth v. Jackson, 32 Me. 419; Steinbach v. Brant, 79 Minn. 383 [82 N. W. Rep. 651; 79 Am. St. Rep. 494].

An assignment which professes to transfer a debt to arise for wages not yet earned against any person by whom the assignor may therefor be employed, although followed by a subsequent notice of assignment to such an employment, is insufficient, without acceptances to make a valid transfer of the debt against the employer. Jermyn v. Moffitt, 75 Pa. St. 399.

Without the assent of the debtor both upon principle and authority that a creditor cannot assign part of a debt or chose in action so as to give even an equitable interest in said assigned fraction of it or create any lien upon it. Getchell v. Maney, 69 Me. 442; Farnham v. Virgin, 52 Me. 576; Robbins v. Bacon, 3 Me. 346; Cutts v. Perkins, 12 Mass. 206; Mandeville v. Welch, 18 U. S. (5 Wheat.) 277 [5 L. Ed. 87]; Gibson v. Cooke, 37 Mass. (20 Pick.) 15 [32 Am. Dec. 194]; Tripp v. Brownell, 66 Mass. (12 Cush.) 376; Bullard v. Randall, 67 Mass. (1 Gray) 605 [61 Am. Dec. 433]; Drake, Attachment (3 ed.) Sec. 611. WILDMAN, J.

This is a contest over a fund. One of the defendants here, Theodore A. Rodijkeit, was plaintiff below; he sued the railway company and a contest arose between Ida E. Chandler, who had attached certain