Statement of the Case. are suggested by the character of the judicial office and of the responsibilities which attach to it. Judgment affirmed. DAVIS, C. J., PRICE, CREW, SUMMERS and SPEAR, JJ., concur. THE STATE EX REL. GUNN v. WITT. Tenure of municipal and other officers-Act of March 17, 1904Extends term of office to January, 1906-Interpretation of law. The act of March 17, 1904, to amend certain sections of the Revised Statutes relating to the tenure of municipal and other officers (97 O. L., 37), extends the official terms of clerks of municipal councils who were in office at the time of the passage of the act until the election of their successor in January, 1906. (No. 9493-Decided June 27, 1905.) QUO WARRANTO. It is alleged in the petition that on the fourth of May, 1903, the defendant, Peter Witt, was duly elected by the council of the city of Cleveland to the office of clerk of said council for the term of two years; that he thereupon entered upon the duties of said office and that his term expired at midnight on May 3, 1905. It is further alleged that on the third day of January, 1905, the council of said city elected the relator, William E. Gunn, to said office of clerk for the term of two years to begin on May 4, 1905, upon the expiration of the term to which said Witt had been previously elected; that the relator thereupon did all the acts required by law to qualify for Opinion of the Court. said office and demanded the office and all books and papers belonging thereto, but that the defendant refused to deliver the same and unlawfully continues to intrude into said office after the expiration of his term as aforesaid. The prayer of the petition is for the ousting of the defendant and the induction of the relator. The defendant, answering, pleads title to the office until January, 1906, under the act of March 17, 1904 (97 O. L., 37), entitled, An act to amend certain sections of the Revised Statutes relating to the time and manner of holding elections and the terms of certain municipal and other officers. Messrs. Blandin, Rice & Ginn, for relator. Mr. Newton D. Baker, city solicitor, for the defendant. Messrs. Andrews, Harlan & Andrews, also filed a brief in behalf of another party interested in the same question.- [Reporter.] BY THE COURT. Notwithstanding the diverse meanings of which the word, elective, is susceptible in its application to public officers, the scope and purpose of the legislation involved in the present inquiry show that in contemplation of the general assembly it embraces clerks of municipal councils. The effect of the act of March 17, 1904, is to extend the official terms of such clerks as were in office at the time of its passage until the election of their successors in January, 1906. Petition dismissed. DAVIS, C. J., SHAUCK, PRICE, CREW, SUMMERS and SPEAR, JJ., concur. Statement of the Case. THE BALTIMORE & OHIO RAILROAD COMPANY V. Duty of court in submitting case to jury-To separate issues of fact admitted and those denied-Error to read pleadings to jury, when-Error to refuse to charge the jury that negligence not alleged in petition should not be considered. 1. In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require; and it is also the duty of the court to distinguish between, and call the attention of the jury to, the material allegations of fact which are admitted and those which are denied. It is error to read the pleadings to the jury and then say to the jury, and not otherwise to define the specific issues, that these constitute the pleadings in the case, which make up the issue and from which they will try and determine the controversy between the parties. 2. It is error to refuse to charge the jury that it should not consider any other negligence than that charged in the petition. (No. 9231-Decided June 27, 1905.) ERROR to the Circuit Court of Knox county. This action was brought by the defendant in error to recover damages for personal injuries alleged to have been received by reason of the negligence of the plaintiff in error at the Vine street crossing in Mt. Vernon, Ohio. There are four tracks crossing Vine street which run practically north and south. The most easterly track is the side track, the next two tracks may be called, for the purposes of this case, main tracks, and the most westerly track is another side track. The defendant in error was traveling west on Vine street, and as she approached the crossing she observed what is called the pick-up train making Statement of the Case. up on the crossing, and she thereupon stopped at some distance from the easterly side track, under a tree on the north side of Vine street. When, as she supposed, the train was about made up, she drove closer to the tracks, stopping about twenty feet away from the most easterly track, and as the pick-up train was moving northward over the crossing, she drove on along the northern side of Vine street, and when her horse was about on the first, or easterly, main track, she looked to the south and saw a local freight train coming toward her on the first, or easterly main track. The pick-up train was on the other, or second, main track, third from the east, and next to the one on which she saw the local freight coming. When she saw the freight coming upon the easterly main track, her attention being directed to the south and not looking to the north, she whipped up her horse and endeavored to go over the crossing before the local freight train could reach her. In point of fact the local freight train was stopped before reaching her position. When she got onto the next track, her buggy collided with the caboose of the pick-up train. It does not clearly appear whether the pick-up train was backed, or whether it was slacked back, but it is certain that it moved back some two to four feet, possibly more. Her buggy was not upset, but was damaged somewhat, and plaintiff was not thrown out. The north wheels of the buggy were raised from four to six inches and were broken. A view of the tracks to the southward was obstructed until a traveler was close upon the side track coming from the east, but when up to the side track a clear view to the south could be had. These are the principal facts in the case as they appear in the testimony. Opinion of the Court. At the conclusion of plaintiff's evidence, the defendant moved the court to direct a verdict for the defendant, which motion was overruled; and such motion was repeated at the close of all the evidence and was overruled by the court. The trial resulted in a verdict for the plaintiff, defendant in error here. After a motion for a new trial had been overruled, judgment was entered for the plaintiff, which judgment was affirmed by the circuit court, and the plaintiff in error, defendant below, now seeks to obtain a reversal of the judgment of the circuit court and of the court of common pleas. Other facts appear in the opinion. Messrs. Waight & Moore and Mr. F. A. Durban, for plaintiff in error. Mr. F. V. Owen, for defendant in error. DAVIS, C. J. When the court charged the jury in this case, the petition, the answer and the reply were read to the jury and then the court said: "This petition, and this answer and reply, constitute the pleadings in this case, gentlemen of the jury, which make up the issue, and from which you must try and determine the controversy between these parties. As the court has said to you, an issue is an allegation of fact contained in one pleading of a party which is denied in the other." This is all that was said to the jury in explication of the issues which it was the duty of the jury to decide, except the following, which was not spoken in connection with the language already quoted, and which appears in a paragraph by itself: "There can hardly be any question in your minds, gentlemen of the jury, at this stage of this trial, after hearing the several requests the court |