*1 made, that and conclude has been reference to which easement exists; of the contem- the erection easement still such easement, violates plated encroaches structure .the allotment; no the restrictions such easement writing given in approval thereof was for the erection allotment; any time, required the restrictions of family contemplated eleven these conditions and that under not erected. house can be apparent conclude that the have said we It from what we declaring prejudice judge plaintiffs’ in that' err to trial did not paragraphs lettered out in the various all of the master deed denying the restrictions set lots; applicable plaintiffs’ nor in were petition mandatory prayer plaintiffs’ in- writing plaintiffs’ junction compelling approve in dеfendant to plans. judge However, did err defendant’s the trial we conclude holding following respects, prejudice in in towit that the plaintiffs’ apply appearing not in deed did restrictions line lots; they adjoining ap- owned two to them since proval provision applicable plaintiffs’ deed necessary; them, plans approval of no such approval written they to construct their that cоntemplated apartment; did not need defendant’s did restrictions not forbid subject construction; were not its easement to which reference and that their lots has made. been part of the trial court is affirmed and re- part as indicated herein. versed I, NICHOLS, concurs. GRIFFITH,. judgment. J, concurs Plaintiff-Appellant, McNEES, v. CINCINNATI STREET Defendant-Appellee. COMPANY, RAILWAY District, Appeals, County. Ohio First Hamilton April 19, No. 7290. Decided 1951. *2 ' Hoover, Beall, Eichel, Cincinnati, plaintiff- Whitman & for
appellant. Beirne, Cincinnati, R. defendant-appellee. C. for (SKEEL, PJ, HURD, J, Eighth STEVENS,J, of the District: District, sitting by designation.) of the Ninth OPINION SKEEL, By PJ. appeal questions This of law comes to this court a judgment entered for the defendant in the Common Pleas County. Court of Hamilton upon provi- cause of action is founded the Compensation plaintiff sions of the Workmen’s Act. The as Taylor McNees, of the widow for filed a claim benefits under ground the Act on the becаuse with that her husband came to his death injuries of suffered in the of course the pre- defendant. The claim was disallowd when upon sented to the Industrial Commission Ohio re- hearing, provided by law, again disallowed, was the In- ruling Commission dustrial as follows: n the claim proof “That be disallowed for the reason fails to record show the decedent died as a result of in juries arising sustained in the course of and out of his em ployment.” appealed This order was to the Common Pleas Court jury, upon County where, was trial verdict Hamilton returned general ver- defendant. addition special interrogatory which was: dict, answered a death, Taylor strain McNees’ the mental “Was prevailed which conditions excitement January trolley night 1944?” drove bus “Answer: Yes.” The v., judgment n. o. plaintiff motion for then filed a granted. motion was which entering judgment court, granting motion and right giving participate plaintiff, her for the fund defendant, notwithstanding jury’s verdict for part its concluded that which stated: worry “Now, is not an within mental strain mere Compensation Law.” of the Workmen’s interrogatory, jury’s answer error and evidence, unchallenged together facts and with the admitted Taylor from com- McNees’ resulted established that under, , Act. pensable the Workmen’s upon judgment Appeals by the Court but This affirmed judgmеnt appeal to Court reversed instructions to enter the cause was remanded with jury, the court defendant verdict *3 (152 269) holding that: Oh St special interrogatories The not “1. answers a will judgment different from that authorized a authorize a general verdict, where such answers be reconciled with can (Davis Turner, 101, the Fuel 69 St and Ohio verdict. v. Oh followed.) Ringler, 409,approved Oh Gas Co.v. St appeal Where, “3. from disallowancе a claim death Compensation Act, benefits under the Workmen’s an- a swers, ‘yes’ reading: special interrogatory to a ‘Was the cause Taylor McNees’ death the mental strain and excitement of of trolley prevailed the conditions which he drove the (the night 17, night bus on the of Jan. 1944’ of his death) such does not a answer determine there was proximate relationship employment causal McNeеs’ between any compensable injury. either death or Compensation “4. Death the Act benefits under Workmen’s only be where the re- can sult of a awarded was injury. “5. An is not under the Workmen’s is Act unless it received course of and employment. arises out of the employment An “6. does not arise out of the within Compensation Act, of Workmen’s unless there relationship is a causal between the injury.” The case was returned to the Common Pleas Court where judgment entered was for the defendant on the verdict of jury. plaintiff trial, The filed motion for new which was overruled. The thus entered basis for this appeal. place just prior evidence took what to the death of Taylor dispute. McNees not He was employed as a driver trolley duty of of night bus the defendant and was on January 17, night very foggy. 1944. The As he drove ' fog passenger his bus down town the was so dense that a stood step avoiding the front of the bus to direct the decedent in striking parked curb or cars. The defendant seemed trip excited before he started on the which continued as proceeded he line from down town. About mile end trip began, trolley poles pulled whence his were off the wires because the bus was driven far too to the left. get on, The decedent tried to The bus when he came them back without success. following, give driver the bus tried to assistance impossible the scene. After was found get trolley poles to the bus suggested back on pushing the wires he trolley driven decedent back under the wires. As push second driver started to bus moved the first only bus got steering about four feet when the brakes seemed to set. He collapsed out and found that the decedent had over the hospital wheel. He was sick. He was removed pronounced dead, where he deputy county coroner finding the “coronary death as thrombosis.” The decedent had suffered from a heart condition for about a year prior to Jan. 1944. plaintiff, support claim, her called a doctor who testified that McNees’ death was due “the tremendous placed upon strain that physical being this individual’s being, both, and his of his particularly mental but on the strain * * effort *.” Upon cross-examination this witness admitted that death may result from thrombosis at a time when the undertaking physical decedent is or mental strain kind. *4 expert The defendant’s medical witness testified that anxiety physical'strain and nervousness more than the the cause of death. He said: safely say “I can majority coronary a conditions mental as from аs much physical exertion not from result * *. It know we don’t condition which some strain or walking- or with- just street person down the may on a come they normally exert.” than physical exertion any more out jury’s defendant above, verdict was As indicated to enter Supreme the Court Court ordered after and judgment verdict, court overruled the trial on the trial. newa motion grounds plaintiff presents for reversal: two The charge general court, in its the trial both first is that “The defendant, request charge given special in at a plaintiff. is prejudicial The second error committed verdict, light state in the of the correct that the weight manifestly against case, law in the the evidence.” charge reading and th a the whole It clear from special must have understood court work, came while if the decedent mean that thrombosis, whiсh result as a brought into existence time of death was either activated excitement, by such death would or nervous mental strain received in the not be the result course or though employment, such mental strain of his even produced by unusual conditions excitement was nervous compelled to time work. under which the decedent was at the entering judg- question of whether or not the court jury’s finding, death was n. o. v. ment strain, by constituted nervous excitement and mental caused presented error was Court the defendant (152 269) Oh St disclosed the defendant’s brief filed proceeding. page 14 that presents II of such brief Subdivision as follows: resulting “Death strain and mental excitement of conditions men’s is not under the Work- Act.” support following of its claim the defendant cites the O’Malley cases: Industrial Commission of Ohio v. Oh St 401; Youngstown 407; Shea v. & Sheet Tube Co. Oh St Nеlson v. Industrial Commission 150 Oh 1.St O’Malley case, supra, clearly point, there ' way the excitement was in no connected with the decedent’s employment, although point is not mentioned this police court. The excitement was occasioned because asking gate opened investigate why to have a ’door open building building next to the of decedent’s em- ployer. opening The decedent stated after door be- properties: tween the *5 he was sick from the excitement of it all “That and that high pressure.” he had blood post injury, mortem disclosed no evidence there was paralysis page no before death. court said at 403: O’Malley’s by merely, “If was caused excitement by any physical injury contributing was not caused his death.” case, supra, In the Nelson the decedent was not confrontеd any with at unusual conditions the time he died. The court paragraphs syllabus: said in the 1st and 3rd engaged “1. The sudden death of a workman while in occupation, pre-existing his usual which death resulted from a physical condition, is not of itself evidence that an accidental injury contemplation Compensa- within the Workmen’s * * * tion Act caused or accelerated such death. suddenly “3. Where a workman dies his work and hemorrhage appears death results from cerebral and it that suffering thrombosis, the workman had been such from cerebral death is absence evidence showing injury that an accidental caused or contributed circumstances, Under death. in the trial of an by dependent participate action the decedent’s in the state fund, obligated insurance and enter a a trial court is to instruct a verdict judgment against plaintiff.” opinion case, quotes The court in its in the Nelson Commission, v. Goodman Industrial 135 Oh St and Cor dray Commission, page v. Industrial 139 Oh On St 173. 7 the says: court case, year baker, “In engaged the Goodman 48a old while occupation, shortly in his usual after he had commenced work, suffered an acute dilation the heart from which he day. eye-witnesses died on the same Since all the testified bench, Goodman handling dоugh that was at his in the usual way, conditions, and under collapsed, the usual when he and engaged any extraordinary was not in effort any compensable injury.” time he did not suffer “The court there said: “ jurisdictions ‘Whatever the in may be, rule Ohio, through long Court of decisions, line of has consistently meanings ‘injury,’ defined the of the term statutes, used in Constitution to be or trau- injuries origin matic cause; accidental in their the result ” happening particular of a sudden at a the first two time.’ Cordray case, “In paragraphs sylla- of bus are follows: “ dependents T. In an action against of a workman no offered in which evidence is Commission Industrial tending workman’s death to establish claimants particulár happening time at á a sudden result of origin in causing accidental physical of traumatic motion cause, to overrule a trial court it is error favor. vеrdict its for a directed the commission only, discloses evidence Where the “‘2. engaged performing duties for the usual while workman which he was regular way employed, with- usual and hemorrhage, effort, extraordinary suffered a cerebral out no of a cere- The occurrence is shown. proof hemorrhage it resulted from is not of itself bral *6 ” injury.’ question presented. here not not deal with the These casеs us, no but that before there can be doubt In the case now physical heart of to the resulted from a death decedent death, time of his while he was met with un- and that at the bus, engaged of in his work ordinarily different from what were en- usual conditions countered, thereby tending bring excitement nervous and mental strain which the death. said was a cause his Supreme page case, supra, Court at 274 of McNees says: jury’s special interrogatory “Since the answer finds to the causal connection decedent’s a and between the strain employment, excitement of certain of his conditions it necessarily establishes a connection between his em- causal ployment coronary thrombosis. This follows because dispute is no there the evidence to' the as fact coronary thrombosis was the causе of death. When Taylor jury’s refers to ‘the cause of McNees’ death’ the special interrogatory negatives answer to the of other causes.” the existence (152 269) indicated, This case Oh as St above was decided question on the or whether mental strain and nervous excitement which the found to be the cause of death, death, was the and not a remote cause of controversy inasmuch there was no about the that the fact coronary decedent came to his death of a thrombosis and one many the doctors had testified that in cases of that kind neither That present. nor mental strain was to be found part opinion quoted, Court last by Judge dissenting opinion. was concurred in Hart in his words, the court did not sustain the defendant’s claim death, resulting brought from a thrombosis aggravated by mental strain and nervous excitement be- cause of unusual conditions under which the decedent working injury. death, at the time could not be a strain, worry anxiety, On the of mental it is Jurisprudence, 255, commencing stated in 58 American Sec. page 756 as follows: “By weight authority, unexpected the sudden and breaking portion some of the internal structure of the body, hemorrhage, apoplexy, as in the case of cerebral hernia, etc., thereof, or the failure of some essential function failure, paralysis inas the case of heart and similar afflic- tions, brought employee about the exertions of the while engaged performance of his duties or the condi- happen- tions of the even without external ing injury ‘injury nature, regarded of an accidental is to be anas accidental ‘injury by within of the terms accidents’ ‘personal injury causеd proximately accident’ ac- cidentally sustained,’ expressions, and similar in com- used pensation statutes, simple personal injury, as well as a al- though notwithstanding holdings contrary. true, there are And this is may suffering the workman have been pre-existing infirmity predisposing which constituted a said, of such disablement. It this connection that an sudden, unexpected internal which is unusual and none the part less accidental because its external cause is ordinary of the victim’s work.” supporting great weight authority cases are set supporting forth in the annotation the above statement. The holdings contrary, above, referred to are not in con- *7 presented flict with the situation cited in this case. The cases by Zimmerman, J., dissenting opinion, in his 152 Oh St page 286, Hope (2d) Royal are v. Indem. Co. 90 Fed. 387 Borough Haledon, Von and Ness v. App. 136 N. J. L. 56 (2d) 888, directly point. are also - We must therefore conclude that the court was in error prejudicial jury rights plaintiff to the of the in the “* * * worry that mere mental strain or is not an within the of the Workmen’s Law” under the circumstances this case. agree The Court is unable to that the second judgment claim of error manifestly against that is weight of the evidence is sustained and therefore such claim error is overruled. foregoing is, reasons, For the that that the court committed prejudicial plaintiff error general charge in its to
219 charges, judgment special is reversed jury in its according proceedings to for further is remanded the cause Exceptions noted. law. J, HURD, concurs. STEVENS,J, dissents. J.) (See HURD, Opinion by Concurring (Concurring.) HURD, By J. judgment my opinion also on be reversed should weight against ground the evidence the manifest that herein stated. for the reasons majority opinion by Supreme Court has held (McNees Railway Co., Taft, 269) 152 Oh St Cincinnati Street J. v. upon passing motion for non ob- court, appeals, court of “neither the trial stante veredicto (Sec. GC) court, may weight nor this evidence.” 269). (See However, syllabus page this court is not now overruling appeal precluded this from an order a motion question trial, passing upon whether for a new the weight contrary the manifest verdict of the opinion analysis of from an of the evidence. It clear weighed was not Court that the'evidence court, following- page 281 find for at we statement: have, therefore, “We a situation where the evidence re- require is not determina- the trial such as ceived tion, employment a. matter law that decedent’s coronary thrombosis, cause of the which ad- mittedly ciding, Assuming, caused decedent’s death. without de- tending prove there sufficient evidence employment that coronary was the cause of the death, thrombosis so that there was a proximate causation, on such the answer to interrogatory anything does not determine that was a proximate cause.” Coming evidence, now to a consideration of the the record witnesses, shows that there were two medical one called on plaintiff behalf of the and the behalf of the de- (Dr. Heinold), positively fendant. Plaintiff’s witness testified relationship there was a causal between events im- mediately preceding the death and the death. He testified in substance that the incidents decedent’s con- tributed to his death because these incidents would raising artery pressure in an blood somewhat occluded clotting closing up and would cause a sudden artery preceding full sudden death. While he also testified person might strain, that a die of thrombosis without *8 emphatically most that all of the it should be observed evi- unmistakably pointed to an unusual strain dence this case fog. operation general bus in dense While the in the public exposed fog, pre- the decedent same with a existing entirely position heart in an condition was different being obliged public, from the most unusual conditions then to work under the existing any common which proximate coronary sense view of thrombosis and the was the the facts resulting death. Heinold, supports amply The statement of Dr. this con- he testified clusion when that: previous collapse “the events to the man’s contributed collapse his and eventual death because of the tremendous placed upon physical being strain that was this individual’s being both, particularly and his mental but the strain physical his effort.” possibly activities, These events could not be than the exegencies arising employment. and conditions out of his (Dr. Ventress) Defendant’s medical witness when asked concerning McNees, the factors which caused' being very outlined these factors as bad condi- — fog; aggravation by passenger tions due tо the con- tradicting responsibility attempting help decedent, those and the safety passengers his under the un- subjected usual conditions to which the bus driver was the time of his death. He also testified: anxiety nervousness, “I think this more so than any physical exertion, would be the factor that caused the aggravated enough to become to cause death.” It should emphasized thus be noted that while Dr. Ventress anxiety nervousness, he did not exclude the necessity exertion caused stop bus, of decedent to get replace trolley poles off and on the wires two or collapsed. three times before he While he minimized the physical exertion, effect of the entirely he did not exclude it testify nor did he time that there was not a relationship employment causal between the and the death. It is also well tо note in this connection that no t given asked or on the causal re- lationship conditions, exegencies between the activities Therefore, and the death. whether we testimony consider this whole, and the record as a it seems to me that the conclusion is inevitable that the verdict of clearly contrary was so weight' to the manifest require evidence as to ground reversal and a remanding of according case for a new trial to law.