tiff, and that in the performance of his duties, shirt sleeve by the set screw was the proximate he used a drill press, and that, while using it, he received some injury, and, for want of information as to the nature of the same, the allegations of the petition pertaining thereto are denied. There is then a denial of each and every allegation in the petition not specifically admitted, and the further defense of contributory negligence. Plaintiff replied denying contributory negligence. The court instructed the jury that the violation of section 1027, General Code, was negligence per se; the language used by the court in this connection being set out in full in the opinion. There was a verdict in favor of plaintiff in the sum of $5,000. A motion for a new trial was filed and overruled, judgment rendered on the verdict and error prosecuted to the Court of Appeals, where the judgment of the common pleas court was affirmed. To reverse these judgments plaintiff in error has brought this proceeding in this court. Howell, Roberts & Duncan, of Cleveland, for plaintiff in error. R. B. & A. G. New. comb, of Cleveland, G. M. Skiles, of Shelby, and Frank M. Cobb, of Cleveland, for defendant in error. NEWMAN, J. (after stating the facts as above). The question chiefly discussed by counsel in their briefs, and the only one to which our attention was directed in oral argument, is whether the court erred in instructing the jury that the violation of the statute was negligence per se. The company in its answer admitted that Poak received some injury, yet, for want of information, denied the allegations of the amended petition pertaining to the manner in which the injury was received. There was evidence tending to show that Poak did not catch his sleeve on the set screw, but that his glove was caught on the point of the drill. However, the Court of Appeals in reviewing the evidence on this proposition was clearly of the opinion that there was sufficient evidence to warrant the jury in finding that the catching of the shirt sleeve on the set screw, as claimed by Poak, was the immediate and proximate cause of the injury, and counsel concede that they are precluded from discussing this question here, for it involves the weight of the evidence. The set screw which held the drill in the shank or shoulder projected unevenly beyond the surface of the revolving portion of the drill press. There was no dispute as to this fact, and, besides, it is conceded by counsel. The court in its charge to the jury used this language: "It is admitted by the defendant that the set screw upon this machinery did extend out in some degree beyond the surface of the revolving portion of the press drill; and I say to you, as a matter of law, that this was in violation of the statute, and that, if this extended set screw did engage the shirt of the plaintiff, as claimed by him, and that this engaging of the cause of the injury complained of, then the havconstitute negligence on the part of the defending and maintaining of such set screw would ant; but I say to you further in that connection, that, though the set screw did extend out, and though the defendant was negligent in that respect, yet that would be of no importance in this case unless the set screw engaged the shirt sleeve of the plaintiff as claimed by him, and caused the injury complained of. So, gentlemen of the jury, if you believe the plaintiff has maintained by a preponderance of the proof his claim that the set screw, as the same then and there existed, did engage his shirt sleeve, and that the engaging of his shirt sleeve in the set screw caused the injury in this case, and find also that the plaintiff was without fault on his part, then he is entitled to a recovery at your hands." This part of the charge is challenged by counsel for the company; the contention being that the court should have submitted to the jury whether or not the defendant exercised reasonable care in furnishing plaintiff a safe place in which to work, and should have charged that the violation of the statute might be taken into consideration in determining that question, and that such violation was some evidence of negligence, but not negligence in itself. The basis of negligence in this case, it is claimed, is that the master failed to use reasonable care in furnishing the servant "a safe place or a safe instrumentality at which to work," and liability on the master's part could be sustained only by failure to use such reasonable care. [1] The provisions of the statute which apply here are as follows: "Section 1027. The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof as follows: "3. They shall cover, cut off or countersink keys, bolts, set screws and all parts of wheels, shafting or other revolving machinery projecting unevenly beyond the surface of such revolving machinery." This is a penal statute, and the person, firm, or corporation failing to comply with its provisions is subject to a fine for every offense. to question the wisdom of such legislation, | it is the duty of the owner, agent, or operator were we so disposed. The plain duty de- to have the timber constantly on hand, and volves upon the court to enforce the law un- to deliver it to the working place of the less it appears that the Legislature has ex- miner. And then used this language: ceeded its authority and the act is clearly repugnant to the provisions of the Constitution. Negligence in a legal sense is the omission of some duty imposed by law, a failure on the part of the defendant to perform a legal duty that is owed to the plaintiff. Here the company, under the plain and express terms of the statute, owed to the plaintiff the duty of making a suitable provision to prevent injury to him in using the drill press, and the company, in furtherance of this, was required to cover, cut off, or countersink the set screw. This it did not do. Its failure to comply was therefore a violation of duty, and this was negligence. There was nothing to be submitted to the jury on this proposition. Negligence is ordinarily a question for the jury, and is always so when there is a reasonable doubt either as to the facts or inferences of fact to be drawn by the jury. | But here there was no doubt as to the facts. The statute has been violated, and the court rightly charged, as a matter of law, that the company was guilty of negligence. It then remained for the jury to say whether or not the violation of this duty was the proximate cause of the injury. In Krause v. Morgan, 53 Ohio St. 26, 40 N. E. 886, statutes requiring the operator of a coal mine to keep the same free from gas and have the working places examined every morning with a safety lamp before workmen are allowed to enter, and which statutes gave a cause of action to a person injured for direct damage occasioned by any violation or willful failure to comply with the requirements of the statutes, were before the court for consideration. The court used this language: "All he [the miner] has to prove to make his case, as to that point, is that, in fact, a delivery was not made. And a failure on the part of the owner, agent, or operator to so deliver timber to the working place of the miner is negligence, and, if injury is thereby proximately caused to the miner, an action will lie therefor." And in McGarvey v. D., T. & I. Ry. Co., 83 Ohio St. 273, 94 N. E. 424, an act to promote the safety of the employés and travelers upon railroads, passed by the General Assembly March 19, 1906, was before the court for construction. The court held that the statute imposed a positive and absolute duty on the railroad company. [2] No reference is made to these cases in the brief of counsel for plaintiff in error, but in oral argument they would distinguish them from the case here, and they insisted that they are not authority for holding that the violation of the provisions of section 1027 is negligence as a matter of law. Counsel suggested that the statutes construed in those cases provide for an action for damages in the event of a violation, and that in one of them at least the defenses of assumption of risk and contributory negligence are not available. The absence of such provisions is immaterial, as is pointed out in the Narramore Case, to which we shall refer presently. It is sufficient to say that the scope and effect of statutes imposing an absolute duty are ably discussed in these three Ohio cases, and the consistent holdings of the court in reference thereto bear directly upon the question presented here and sustain our position. The case of Krause v. Morgan, supra, is referred to by Judge Taft in his opinion in L. E. & W. Ry. v. Craig, 73 Fed. 642, 19 C. C. A. 631. Our statute requiring the blocking of frogs, for the safety of the employés of railroads, was under consideration by the court, and this language is used by this judge: "We have already held, in Railroad Co. v. Van Horne, 16 C. C. A. 182, 69 Fed. 139, that the effect of this statute is to make a failure by a railroad company to comply with it negli gence, as a matter of law. This is the ruling analogous statute enacted to compel mine ownof the Supreme Court of Ohio in construing an ers to adopt safety appliances for their employés. Krause v. Morgan [53 Ohio St. 26] 40 N. E. 886." "While the statute, as we construe it, does not make the operator of the mine absolutely liable to a party injured by an explosion of gas where the operator has not complied with the statute, such conduct is negligence per se, and the employer cannot escape liability by showing that he took other means to protect the workmen equally efficacious. Proof of failure to obey the statute is all that is necessary to establish negligence on the part of the operator." In Coal Co. v. Estievenard, 53 Ohio St. 43, 40 N. E. 725, the action was brought under the provisions of section 6871, Revised Statutes, which provided that the owner, agent, or operator of every coal mine should keep a supply of timber constantly on hand, and should deliver the same to the working place of the miner, and no miner should be held responsible for accidents which might occur "We have already had occasion to consider in mines where the provisions of the section in a more or less direct way the effect of the have not been complied with by the owner, A. 182, 69 Fed. 139; Railway Co. v. Craig, 16 Railway Co. v. Van Horne, 16 C. C. agent, or operator thereof. This section fur-C. C. A. 631, 73 Fed. 642. In these cases we ther provided that it shall be the duty of the miner to securely prop the roof of any working place under his control. The court And the same judge, in the well-known case of Narramore v. C., C. & St. L. Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68, said: statute. held that the failure on the part of a railway gence per se. ployés of railways from injury from a very case must be read in connection with the frequent source of danger by compelling the facts there before the court. Plaintiff was railway companies to adopt a well-known safety device. It was passed in pursuance of the struck by a car moving at a rate of speed police power of the state, and it expressly pro- exceeding the rate prescribed by a certain vided, as one mode of enforcing it, for a crim- ordinance. He did not predicate his right inal prosecution of the delinquent companies. of recovery upon the violation of the ordiThe expression of one mode of enforcing it did not exclude the operation of another, and, in nance. many respects, more efficacious, means of compelling compliance with its terms, to wit, the right of civil action against a delinquent railroad company by one of the class sought to be protected by the statute for injury caused by a failure to comply with its requirements." And again, in Cooper v. B. & O. R. Co., 159 Fed. 82, 86 C. C. A. 272, 16 L. R. A. (N. S.) 715, 14 Ann. Cas. 693, the Court of Appeals of the Sixth Circuit had before it for construction the act of April 25, 1898 (93 O. L. 342), requiring railroad companies to block all angles in frogs, switches, and crossings in all yards where trains are made up, etc., and quote with approval the language used by Judge Taft in C., H. & D. Ry. Co. v. Van Horne, 69 Fed. 139, 16 C. C. A. 182: It "There was no issue before the jury as to whether the failure to insert a block was negligence on the part of the railroad company. was negligence as a matter of law, and the court properly charged the jury that, if the block was not there, and the absence of it caused the accident, the defendant was liable." The principle announced in these cases is approved and adhered to by the Supreme Court of the United States in several cases which were cited by counsel for defendant in error. In the case of St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061, it is held that the safety appliance act of March 2, 1893 (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), supplants the common-law rule of reasonable care on the part of the employer as to providing the appliances defined and specified therein, and imposes upon interstate carriers an absolute duty, and the common-law rule of reasonable care is not a defense where, in point of fact, the cars used were not equipped with appliances complying with the standard established by the act. In that case Mr. Justice Moody goes into the question fully and ably, and discusses the question as to the right of the Legislature to enact laws similar to the one under consideration here. His language is quoted at length and with approval by Mr. Justice Harlan in the case of C., B. & Q. Ry. Co. v. United States, 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582. Cases decided by the courts of last resort in a number of states are cited by counsel, in which cases the courts have placed upon statutes similar to the one in the case at bar the same construction we are giving it here. Meek v. Pennsylvania Co., 38 Ohio St. 632, is cited in support of the contention of plaintiff in error that it was erroneous and prejudicial for the court to have charged the jury that the violation of section 1027 was negligence in itself. The syllabus of that No reference is made to the ordinance in the petition, the charge of negligence being that the company carelessly, wrongfully, and with gross negligence ran and moved its cars. The trial court rejected the ordinance when tendered in evidence, but this court held that was admissible, and that proof that the company was moving its cars in violation of the city ordinance at the time the injury was inflicted, while not sufficient per se to create a liability, is yet competent to go to the jury as tending to show negligence. It cannot be claimed that in the enactment of this ordinance the purpose of the municipality was to supplant the common-law duty of railroads in respect to the movement of its cars. Notwithstanding the existence of this ordinance, the question for determination after all was whether the railroad was in the exercise of ordinary care when plaintiff received the injury. A full compliance with its provisions would not have relieved the company if the jury were of the opinion that the rate of speed prescribed was excessive and dangerous to human life. This court very naturally held that the violation of the ordinance was not conclusive proof of the company's liability. This case, therefore, is not decisive of the question raised here, nor are Davis v. Guarnieri, 45 Ohio, St. 470, 15 N. E. 350, 40 Am. St. Rep. 548, and Jacobs v. Fuller & Hutsinpillar Co., 67 Ohio St. 70, 65 N. E. 617, 65 L. R. A. 833. In the opinions of the court in these cases the holding in the Meek Case seems to meet with approval, but the law announced in the cases does not in any way sustain the claim of counsel. The plaintiff in the case at bar predicated his right of recovery upon the violation of the statute, which made it an absolute duty on the part of the employer to adopt certain measures to protect its employés. It was not for the jury to say whether a failure to comply was negligence. To use the language of the Court of Appeals: "As no jury is allowed to say that which is not the law shall be the law, so they should not be permitted to say that which is the law is not the law." The violation of this statute in this case was negligence as a matter of law. If this negligence was the proximate cause of the injury, the company was liable. The court correctly charged the jury in this respect. In the brief of counsel other exceptions to the record in the common pleas court are pointed out, but none of them were pressed in oral argument; counsel relying upon the one proposition which we have been considering. We have, however, examined the rec ord, and are clearly of the opinion that they should be disregarded, and that the Court of Appeals did not err in overruling them. There being no error in the judgment of the Court of Appeals, the same is affirmed. Judgment affirmed. favor of Revised Statutes, § 6841, as in force in the month of May, 1903, for the unlawful conversion of public money belonging to the state of Ohio. To this indictment the defendants demurred, and were sustained by the court of common pleas. The state thereupon excepted to such ruling, and brings its NICHOLS, C. J., and SHAUCK, JOHN-exceptions to this court for a decișion as to SON, DONAHUE, WANAMAKER, and WIL the law, under favor of sections 13681 to KIN, JJ., concur. (89 Ohio St. 214) STATE v. CAMERON et al. (Supreme Court of Ohio. Jan. 13, 1914.) (Syllabus by the Court.) 1. CONSTITUTIONAL LAW (§ 24*)-CONSTITUTIONAL AMENDMENTS-EFFECT-REPEAL OF STATUTES BY IMPLICATION. Under the general policy of our law as well as the schedule accompanying the new Constitution of 1912, all statutes then in force consistent with such new Constitution remain in force, and all repugnant statutes are repealed by implication. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 21-29; Dec. Dig. § 24.*] 2. STATUTES (§ 159*)-REPEAL BY IMPLICA TION. Repeals by implication are not favored, and before a statute is so repealed the repugnancy must be necessary and obvious, and if by any fair course of reasoning the law and Constitution can be reconciled, the law must stand. Cass v. Dillon, 2 Ohio St. 608, approved and followed. [Ed. Note.--For other cases, see Statutes, Cent. Dig. § 229; Dec. Dig. § 159.*] 13684, inclusive, General Code. Upon the filing of such bill of exceptions by the state of Ohio, counsel appointed by the court of common pleas to sustain its judgment upon the demurrer filed a motion to strike said bill of exceptions from the files, upon the ground that the Supreme Court of Ohio is now without jurisdiction in the premises, claiming that, by the adoption of the new Constitution, said statutes are by implication repealed. The sole question, therefore, before this court is whether or not under the new Constitution of 1912 the sections of the General Code above referred to, to wit, 13681 to 13684, inclusive, are still in force, or, upon the contrary, have they been repealed by reason of the fact that they are repugnant to and inconsistent with the new Constitution. The schedule of the Constitution of 1912 here applicable reads as follows: "The several amendments passed and submitted by this convention when adopted at the election shall take effect on the first day of January, 1913, except as otherwise specifically provided by the schedule attached to any of said amendments. All laws then in force, not inconsistent therewith shall continue in force until amended or repealed." It is conceded that these statutes in ques 3. CONSTITUTIONAL LAW (§ 24*)-CONSTITU-tion have not been expressly amended or reTIONAL AMENDMENT-EFFECT ON EXISTING LAWS. Sections 13681-13684, General Code, are neither inconsistent with nor repugnant to the new Constitution, and are thereby preserved in full force and virtue, as to felony cases not as conferring jurisdiction, but as prescribing a rule of procedure and practice as to certain appellate jurisdiction now conferred by the new Constitution. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 21-29; Dec. Dig. § 24.*] Donahue, J., dissenting. Exceptions from Court of Common Pleas, Franklin County. Isaac B. Cameron and one Baxter were jointly charged with the unlawful conversion of public money. A demurrer to the indictment was sustained by the court of common pleas, and the state brings exceptions. Motion to strike bill of exceptions from the files overruled. pealed, but it is claimed that they are impliedly repealed because of inconsistency with the plain provisions of the new constitutional amendment. It is conceded upon all hands that, under the Constitution of 1851, all appellate jurisdiction conferred upon the Supreme Court had to be conferred by an act of the General Assembly of Ohio. Article 4, § 2, of the Constitution of 1851 reads as follows: "It shall have original jurisdiction in quo and procedendo," and such appellate jurisdicwarranto, mandamus, habeas corpus, * tion as may be provided by law. It is likewise admitted on all hands that, under the new Constitution, all appellate jurisdiction that the Supreme Court may exercise is conferred directly by the Constitution itself. See section 2, article 4, as amended September 3, 1912. Of course, this does not include the revisory jurisdiction of adminis Edward C. Turner, Pros. Atty., of Colum-tration boards. And it must further be conbus, for the motion. Smith W. Bennett and O. E. Harrison, both of Columbus (James M. Butler and J. J. Chester, both of Columbus, of counsel), opposed. WANAMAKER, J. Isaac B. Cameron and Cyrus Huling were jointly indicted by the grand jury of Franklin county, Ohio, under ceded that the new Constitution confers on the Supreme Court all and absolute appellate jurisdiction in "cases of felony," and that the only qualification upon such full and complete appellate jurisdiction under the new Constitution "in cases of felony" is in the language "on leave first obtained." Appellate jurisdiction under the new Constitution is as com prehensive as any that the Legislature might | tempts to do the same thing that the Conhave conferred under the old Constitution. stitution has already done. In short, as a [1, 2] The Legislature not having any au- legislative provision, it is a sort of duplicate thority under the new Constitution to confer of the constitutional provision. How two appellate jurisdiction, and it being contend- things that are duplicates of each other can ed that the statutes in question whose sur- be necessarily and obviously repugnant to vival is here denied do assume to confer ju- each other is beyond human reason. While risdiction, therefore it is vigorously contend- a statutory provision that attempts to do the ed that, the Legislature being without power same thing that a constitutional provision in this behalf, its acts in this respect become has theretofore done is wholly unnecessary at once null and void by reason of their be- and ineffectual, still it cannot be fairly said, ing inconsistent with and repugnant to the therefore, to be necessarily inconsistent and present Constitution, and hence that they obviously repugnant to and irreconcilable are effectually repealed by implication. Ques- with the Constitution. The legislative protions of this character frequently arose un- vision, so far as it duplicates the constituder the Constitution of 1851. Judge Thur- tional provision, would simply be a futility, man, in the old case of Cass v. Dillon, 2 Ohio without force or virtue in law. St. 607, lays down the correct rule for determining what statutes are preserved and what sections fall by reason of changes made in the state Constitution. The syllabus of that case, so far as applicable here, is as follows: "All laws in force when the latter [the new Constitution] took effect, and which were not inconsistent with it, would have remained in force without an express provision to that effect, and all inconsistent laws fell simply because they were inconsistent; in other words, all repugnant laws were repealed by implica tion. "The rule, that repeals by implication are not favored, is applicable to the inquiry whether any particular enactment has ceased to be in force on account of repugnancy to the new Constitution. State ex rel. Evans v. Dudley, 1 Ohio St. 437, approved. "The repugnancy which must cause the law to fall must be necessary and obvious; if by any fair course of reasoning, the law and the Constitution can be reconciled, the law must stand." Now it has been determined by this court in a recent case (87 Ohio St. 313, 101 N. E. 135, State of Ohio v. Cox) that the sections in question did "confer appellate jurisdiction upon the Supreme Court in criminal cases to the extent and for the purposes specified in these sections." In short, therefore, the court has held in the Cox Case, supra, that jurisdiction to determine merely a question of law is proper appellate jurisdiction, though the procedure is largely ex parte, and though the judgment of the Supreme Court in such cases cannot, in any wise, affect the parties below. [3] Now the sections in question, so far as they assume to confer appellate jurisdiction, confer a power upon this court that is already conferred by the Constitution. But does that of itself make those sections inconsistent with or repugnant to the Constitution according to the Judge Thurman rule? The mere fact that an act of the General Assembly covers the identical subject-matter, even in the identical way that the Constitution covers it, does not render such an act of the General Assembly necessarily inconsistent with or obviously repugnant to the Constitution. Upon the contrary, it is absolutely consistent with and conformable to the Constitution. It is fairly reconcilable therewith because in phrase and fact it at If the statute exceeded the power conferred by the Constitution, then to the degree of the excess clearly that must fall by reason of repugnance. If, however, the power conferred by the Legislature be less than the power conferred by the Constitution, so far as the same is conferred, it is not unconstitutional, because it is in entire harmony with the Constitution. The limitation, however, undertaken by the Legislature would in itself fall, because there is no such limitation in the Constitution. The Now the only limit in the Constitution, so far as applicable to this case, is the “leave" or discretion of the Supreme Court. majority of the court are clearly persuaded that a wise and sound course requires of this court the continuation of the policy of this state in criminal cases ever since 1867, to review the decisions and judgments of the lower courts for the purpose of determining the questions of law involved. In cases of jeopardy, that is all that could be done. In cases where there has been no jeopardy, that is all that the state may want done. We are all agreed that the state might have prosecuted an appeal in this case for a reversal of the judgment below, there having been no jeopardy of the defendants; but, because they might have prosecuted error to the entire judgment, that does not necessarily deprive the state of the right to prosecute error as to a part of the judgment on a mere question of law, for the purpose of determining the legal rule applicable to any such case in the future. The matter is wholly in the discretion of this court. If the entire appellate jurisdiction in cases of felony as conferred by the Constitution be represented by the circumference of a circle and the appellate jurisdiction provided for in these statutes be represented by some arc of that circumference, then if the state may apply for a reversal, may invoke the entire appellate jurisdiction represented by the entire circumference, they may also invoke any part of that jurisdiction for the purposes merely of determining the rule of law, if this court see fit to grant the "leave." Again, it is urged that these statutes were enacted to apply to all criminal cases, and, it |