Hamilton County Appeals. it appears to us that we are relieving the parents and natural guardian of children from the duty which they owe to care for them and watch over them, and we are placing the burden of watching over the welfare of the children and protecting them from danger upon strangers who owe no such natural duty to them. We do not think it profitable or expedient to cite the numerous cases that have arisen in which the doctrine of attractive nuisance has been discussed. The case of Fitzgerald v. Rodgers, 68 N. Y. Supp. 946, seems to be strong enough to warrant this court in sustaining the ruling of the court below in arresting this case from the jury. The facts in that case are so similar to the facts in the case before us that we might very well affirm the judgment below upon the authority of this case. It was sought to recover damages in that case from the defendant, a contractor employed by the city of New York to construct a sewer in Longwood avenue. In excavating the trench in which the sewer was to be laid the defendant made use of a machine or apparatus known as a winch by which fragments of stone were lifted from the excavation to the surface of the land. This apparatus consisted of a framework in which was a drum. There was a cable attached to the drum, and a boom or sweep fastened to the upper end of the drum. In lifting stone from the trench a horse was hitched to the boom or sweep, and by the process of winding the cable around the drum the stone to which one end of the cable was fastened was brought to the surface. The infant son of the plaintiff saw some boys playing with this apparatus. The boom or sweep was attached to the drum and in place, and boys were pushing the boom thus causing the drum to revolve and the cable to wind around it. The defendant's workmen had been using the machine some time prior to the happening of the accident. The infant son of the plaintiff, about ten years of age, got upon the boom and sat upon it while it was being moved, his feet slipped and his leg was caught in the cable and he sustained injury. The complaint was dismissed upon the trial, and from the judgment entered upon such dismissal an appeal was taken to the appellate division of the su Rose v. Habenstreit. preme court of New York. In deciding the case, Patterson, J., for the court, uses this language: "The contention of the plaintiff appears to be that when it was left in the street unguarded and unprotected and without a warning it became a nuisance, particularly to children playing in the highway, and who would be tempted or enticed to play with it. The machine was not in itself dangerous." [And the same may be said of the apparatus used by the defendant in the case at bar. "It did not in itself constitute an unlawful obstruction in the highway; nor was it of such a character that, even if left with the boom or sweep attached to the drum, it could be found by a jury, from that circumstance alone, that it was dangerous and a temptation or enticement to children of tender years to play with it, and that the natural and probable result of their so playing would be injury to them. Even where liability is sought to be imposed upon a defendant upon the ground of negligence under such circumstances as appear in this case, it must be shown not only that the apparatus with which the child was playing was dangerous, but that it was of such a character as would induce or allure children to play with it. The evidence in this case did not warrant the submission of the question to the jury. It could not be found that the machine was left in a dangerous condition, nor that it was of such a character as to lead the defendant or his servants to believe that it would be used by children in play. If the apparatus had been left upon private premises in the condition claimed by the plaintiff, it would no more have constituted a temptation to children than did the turntable in Walsh v. Fitchburg Ry. 145 N. Y. 301 [39 N. E. 1068; 27 L. R. A. 724; 45 Am. St. 615]; and Daniels v. New York & N. E. Ry. 154 Mass. 349 [28 N. E. 283; 13 L. R. A. 248; 26 Am. St. 253]. The fact that the defendant's trench was in a projected public street does not change the rule. In Gay v. Essex Elec. St. Ry. 159 Mass. 242 [34 N. E. 258], the car upon which the plaintiff's intestate was playing when he received his death was, and for some days had been, standing in an open and exposed place, namely, in one of the streets or public highways of a city. Hamilton County Appeals. "The complaint was properly dismissed, and the judgment should be affirmed with costs." While it may be said that the Supreme Court of our state has not yet squarely decided that the doctrine of attractive nuisance does apply where property is left in a public highway, nevertheless, upon the weight of the authorities decided by this state we are convinced that there can be no distinction made between trespassing upon private property and upon property properly and lawfully left in a public highway. We think it a wholesome rule to apply that the parents and guardians of children should not be permitted to relieve themselves of the duty which the law imposes upon them of looking after the safety of their children, not only on private property, but upon public streets; and the rule laid down in Wheeling & L. E. Ry. v. Harvey, supra, will be held to extend to property lawfully in public streets as well as to that upon private property. Judgment affirmed. Jones, J., concurs. Hamilton, J., dissenting. I can not concur in the opinion of the majority of the court, for the reason that the question as to whether or not the appliance was a dangerous instrument or an attractive nuisance was one which should have been first submitted to the jury. Further, the accident having occurred on a public street where the child had a right to be and where it might be expected that small children would exercise their childish instincts, I can not concur in extending the doctrine of Wheeling & L. E. Ry. v. Harvey, 77 Ohio St. 235 [83 N. E. 66; 19 L. R. A. (N. S.) 1136; 122 Am. St. 503; 11 Ann. Cas. 9811, as applicable to private premises, to be determinative of this case. Isaac Leisy Brewing Co. v. Kapl, 38 O. C. C. 476 (22 N. S. 309); Gibbs v. Girard, 88 Ohio St. 34 [102 N. E. 299; 1914C Ann. Cas. 1082]. [Cuyahoga (8th) Court of Appeals, January 23, 1918.] Jones, Gorman and Hamilton, JJ., of the first district, sitting by designation. GEORGE M. POTTER ET AL. V. P. C. O'BRIEN (TREAS.), CUYAHOGA Co. 1. Deliberate Disregard of Tax Laws by Tax Officials Corrected by Court of Equity. Deliberate disregard and intentional violation of proper tax laws by the officials charged with their execution, which result in gross inequalities in valuation and thus destroy the rule of uniformity in taxation required by the constitution, furnish grounds for relief in a court of equity under Sec. 12075 G. C.. even where the property to be relieved is itself not placed at a valuation beyond its true value in money. 2. Tax Inequalities Resulting from Incapacity of Tax Officials Require Consideration by Tax Boards Before Resort to Courts. Where such inequalities arise only because of the incapacity or faulty judgment of the tax officials, or where the proper tribunals provided in the system of taxation have not first been appealed to in vain, no such relief can be afforded by the courts. APPEAL. Chapman, Howland, Niman & Younger and F. C. Haimen, for plaintiff. Samuel Doerfler, Pros. Atty., T. S. Dunlap, Asst. Pros. Atty., and A. E. Clevenger, for defendant. JONES, P. J. This case was first presented on demurrer to the amended petition as finally amended in this court. It is an action brought by the owner of certain real estate in the village of Clifton Heights seeking to enjoin the collection of excessive taxes upon such real estate. The amended petition contains allegations setting out the method by which the tax duplicate of Cuyahoga county was made up by the taxing officers, wherein, it is claimed, the tax valuations made in 1910 and in 1914 and 1915 were in part used, together with certain reassessments of new valuations made in 1916, to make up the duplicate for the year 1916. Cuyahoga County Appeals. So far as objection is made to the power of the taxing officials to adopt the valuations used in previous years, no matter how made, where they find them to be proper, instead of making different and new valuations entirely independent of and without regard to any former valuations, the matter is res adjudicata. The Supreme Court has spoken in the case of Zangerle v. State, 94 Ohio St. 453 [115 N. E. 1012]. Defendants claim this case entirely disposes of the case at bar for the reason that it involved the legality of the tax duplicate of 1916 upon which the valuations herein complained of are found. The only question raised in that case was whether tax valuations of previous years, whatever the legal standing of the officers by which they were made, could be considered and adopted as the valuations of the tax officers engaged in making the tax duplicate of 1916, or whether these officers were not bound to disregard such previous valuations entirely and to list and value for taxation all real and personal property subject to taxation in the county constituting their assessment districts in accordance with the requirements of the statute. A consideration of the record and report of that case shows that it involves only the question of method, and that no question of results obtained or of want of uniformity in valuations was raised, or considered by the court. The amended petition in this case, however, in addition to its objections as to method, charges in substance that while the district assessors assessed the real estate of plaintiff and the other lands in Cleveland Heights at their true value in money, all other lands of the county and state were valued at not to exceed fifty per cent of their true value which were their valuations on the duplicate of 1910; that while the real estate of plaintiff had increased in value between the years 1910 and 1916, the value of all other lands in the county and state had likewise improved in the same proportion, and to value part on one basis and part on the other was to create unjust discrimination. This gross discrimination in valuations is alleged to have been intentionally made by the assessors and county auditor, with full knowledge of the lack of uniformity in valuations, as a result of a determined plan on their part, and pursuant to a general agreement |