Opinion of the Court.

that course. He elected to permit judgment to be taken against him before the justice and to resort to the court of common pleas by an appeal from that judgment and to make his defense there under favor of Section 5067, Revised Statutes, which provides: "The defendant may set forth in his answer as many grounds of defense, counter-claim and set-off as he may have, whether they are such as have been heretofore denominated legal or equitable, or both." It is urged that a convincing analogy is presented in Wood v. O'Ferrall & Gabrielle, 19 Ohio St., 427. It was there decided that a judgment by default having been rendered against a defendant by a justice of the peace for a sum within his jurisdiction, and the defendant having appealed the cause to the court of common pleas, and having by his answer in that court expressly admitted the validity of the claim counted upon by the plaintiff and pleaded thereto a counter-claim on which he praved judgment for an amount in excess of the jurisdiction of the justice, and the case having been by the court of common pleas tried upon the counter-claim, there attached to the judgment of the court of common pleas all the incidents of a judgment rendered by it in the exercise of its original jurisdiction, including the right to a second trial which our practice act then authorized. The suggested analogy will not survive a consideration of the essential differences between the cases. In the case cited the issues tendered before the justice of the peace wholly disappeared in the court of common pleas in consequence of the express admission of the

Opinion of the Court.

defendant. By his allegations and the consent of the plaintiff, issues were joined and tried respecting an entirely independent and larger demand which the defendant asserted against the plaintiff, the ultimate question being, whether the defendant was entitled to recover against the plaintiff a judgment for the excess of the demand asserted over that admitted. In the case considered the inquiry has never exceeded the validity of the claim upon which the plaintiff brought suit before the justice of the peace, and which he set up in his petition in the court of common pleas. That claim was not admitted by the defendant. On the contrary his pleading was devoted wholly to alleging reasons why the plaintiff should not recover upon it. In no aspect of the case could there have been any judgment in the court of common pleas except for the plaintiff for the amount of the claim alleged in his petition or against him dismissing his petition.

We find no error in the conclusion of the circuit court that the case was not within the original jurisdiction of the court of common pleas, and therefore, not the subject of an appeal to the circuit court.

Judgment affirmed.

CREW, C. J., SUMMERS, DAVIS and PRICE, JJ.,

concur.

Syllabus.

THE VILLAGE OF MINERAL CITY V. GILBOW ET AL.

Joint action against municipal corporation-And street abutting property owner-For damages to plaintiff-From falling over retaining wall-Misjoinder of parties defendant, when-Duty of property owner as to barrier-Protecting highway travelers -Duty of municipality as to protection of highway-Duty of highway traveler-Law of contributory negligence.

1. In an action jointly against a municipal corporation and the owner of a lot abutting upon a street, to recover damages for injuries resulting to the plaintiff from falling over a retaining wall, where the allegation against the lot-owner is that he wrongfully and negligently maintained upon his premises a dangerous pit, which encroached upon a sidewalk, without any barrier or other protection to warn persons using the sidewalk or to prevent them from falling into such pit, and where the allegation against the municipality is that it wrongfully permitted said sidewalk to be in a dangerous condition without any such barrier, and that at the time of plaintiff's injury it negligently allowed an electric light near the place of the accident to be unlighted, there is a misjoinder of parties defendant.

2. In determining whether it is necessary, in a particular case, that a barrier should be erected in order to make the highway safe for travelers thereon, the true test is not the distance from the highway of the dangerous object or place, whether it be much or little; but whether a traveler in passing along the highway and exercising ordinary care, would be subjected to such imminent danger that it would require a barrier to make the highway safe.

3. When it appears in such case that the street itself, including the sidewalk, is not defective and is safe for travelers thereon, and that the pit or excavation complained of does not substantially adjoin the street, and is six feet away from the street line and upon the grounds of an abutting owner, no action will lie at common law against either the owner of the land or the municipality, by a person who has strayed from the street and fallen into the excavation, especially when such conditions have existed for such a long period of time as to show no probability of accident therefrom.

Statement of the Case.

4. Where one knowingly or carelessly departs from a known safe way and goes heedlessly across the street and beyond its limits and upon the land of an abutting owner, and is there injured by falling into an excavation, he is guilty of contributory negligence and cannot recover.

(No. 11381-Decided December 21, 1909.)

ERROR to the Circuit Court of Tuscarawas county.

The defendant in error, Martha A. Gilbow, instituted this action against Charles E. Holden and the plaintiff in error, The Incorporated Village of Mineral City, to recover damages alleged to have accrued to her by reason of negligence by the defendants in permitting a pit, alleged to be six or seven feet in depth, along the sidewalk on High street in said village, to go without barriers, lights or warnings, whereby the plaintiff, on a dark evening, when an arc light maintained by the village was not lighted, fell into the pit and was permanently injured. The village demurred to the amended petition on the ground of misjoinder of parties defendant; and both defendants demurred on the ground that the facts stated did not constitute a cause of action against the defendant demurring. The court of common pleas overruled the demurrers; and the defendants filed separate answers and made separate defenses on the trial. There was a verdict and judgment against the defendants jointly. In the circuit court the judgment was reversed as to Holden on the ground that the same was "contrary to law" and "contrary to all the evidence" as to him; likewise on the ground of error in refusing to

Argument for Plaintiff in Error.

charge as requested by Holden and of error in the charge as given, to the prejudice of Holden; but the circuit court finding that the amount of the verdict and judgment was excessive, required a remittitur of part thereof, and thereupon with consent of the plaintiff affirmed the judgment for the balance as against the village. In this proceeding the village seeks to reverse the judgment against it, and, if that cannot be done, to reverse the judgment of reversal as to Holden. The plaintiff below, defendant in error here, files a crosspetition asking for a reversal of the judgment by the circuit court in favor of Holden.

Mr. J. G. Patrick and Mr. P. S. Olmstead, for plaintiff in error.

It is our contention that the amended petition in this case does not state any joint cause of action; that the facts complained of are each the independent acts of the defendants. French, Admr., v. Construction Co., 76 Ohio St., 509; Shamokin Bank v. Street, 16 Ohio St., 1; Morris v. Woodburn, 57 Ohio St., 330; Bartegs v. O'Neils, 13 Ohio St., 72; Mansfield v. Bristor, 76 Ohio St., 271; Seelen et al. v. Ryan & Co., 2 C. S. C.. 158; Clark v. Fry, 8 Ohio St., 359; Dutton v. Lansdowne, 198 Pa. St., 563, 48 Atl. Rep., 494.

This wall and pit were located on Mr. Holden's private property; it was not in the street, nor was it along the edge of any traveled walk.

There is a limit to the obligation. A town will not be liable to a traveler who strayed from the highway at a place where there were no barriers. 5 Thompson on Negligence, Sections 6010 and 6111.