Consolidated Street Railway Co. v. Maier

The petition does not state facts sufficient to constitute a cause of action, for it does not appear thereby that said.defendant is responsible to plaintiff for the negligence of said motor man or conductor, or that the plaintiff was required or expected to ride upon said car while driving said horses, or that said lines were too short, or otherwise defective for driving said horse while plaintiff walked upon the ground, nor that the defendant knew or was chargeable with notice or knowledge that said horses would or were likely to become excited or unmanageable on said bridge, nor that to the defendant’s knowledge, the position in which the plaintiff was placee^ was without some negligenee or wrongful act on the part of some one, necessarily or likely to be one of danger. Nor is it alleged in said petition that said plaintiff himself did not know or was incapable of appreciating the danger, if any, to which said employment then and there exposed him, the court being of the opinion that what is alleged in said petition regarding the youth and inexperience of the plaintiff in managing horses or cars, and that said injury to him was without his fault, is not equivalent to the allegation of want ofknowledge or incapacity in the plaintiff which is requisite in such cases. 46 Ohio St. 283; 49 Ohio St. 588.

It being suggested by counsel for Maier that it would be necessary for him to amend his petition, and that the court of common pleas, upon the case being remanded, might impose such terms and conditions for such amendment as he would deem onerous, he asked that the circuit court might itself en*272ter as a part of its order, a direction to the court of common pleas to allow such amendment; but the circuit court is of the opinion that it has no power to make such order, but that the court of common pleas will act in the matter equitably in view of the circumstances, including its own orders in the premises.

Judgment reversed for insufficiency of said petition, and cause remanded to the court of common pleas for further proceedings according to law.