Fairchild v. Lake Shore Electric Railway Co.

Citations

• 101 Ohio St. (N.S.) 261

Syllabus

<p>Public highways — Use by public and grantee of franchise — Redf* rocal rights, duties and obligations — Exercise of care — Depositions — Right to take pending error proceedings — Taxing expense as costs.</p> <p>1. The grant of authority to construct an interurban railway in a public highway does not confer on the company the exclusive use of the portion of the highway on which the track is constructed.</p> <p>2. In such situation the rights of the public are not inferior to those of the company. The company and the public have mutual obligations of care in the use, to be determined with due regard to the circumstances in each case and to the necessity of the car confining its passage to the tracks and its inability to turn out to avoid injury. It is the duty of the company to equip and operate its cars with such appliances, lights and warnings, and under such proper control, as ordinary care under the circumstances requires.</p> <p>3. An existing as distinguished from a potential issue of fact in a trial court is not necessary in order that a party may exercise the right given by Section 11526, General Code, to take testimony by deposition at any time after service of summons on ■the defendant. Either party may take depositions while error proceedings are pending in a reviewing court to reverse the judgment of the trial court. If such depositions are not used, the expense of taking them cannot be taxed in the costs of the case.</p>