text:
    UNLAWFUL DISCRIMINATION BY A COMMON CARRIER.
    [Circuit Court of Cuyahoga County.]
    Youghiogheny & Ohio Coal Co. v. Erie Railway Co., Erie Coal Transfer Co. and Pittsburgh Coal Co.
    Decided, December 6, 1902.

      Railways — Terminal Facilities of — Machine for Unloading Goal from Gars to Boats or Barges a Part of — Unlawful Discrimination hy Granting Exclusive Use of to a Single Patron.

    "Where a machine for the rapid and economical unloading of coal from cars to boats or barges is situated upon a dock belonging to a railroad company, and is operated in connection with its tracks and terminals and could not be operated otherwise, and was originally constructed and owned jointly by the railroad company and a coal company for the accommodation of patrons of the railway and at prices fixed by it, such machine is devoted to public use, and is a part of the terminal facilities of the railway; and a grant of the exclusive use of such machine to one patron is an unlawful discrimination which will be enjoined, notwithstanding there may have been a transfer by the railway company of all its rights in the machine to the patron for whose exclusive use it was subsequently held.
    Hale, J.; Caldwell, J., and Hull, J., concur.
   The plaintiff brought its action to prevent what it alleges to be a discrimination against' it by tbe defendant, The Erie Railroad Company, in the handling of freight at Cleveland. This discrimination is alleged to result by depriving it of the use of certain machinery for the rapid transfer of coal from cars to boats which is granted by the railroad company to the defendant, The Pittsburgh Coal Company.

It is made manifest by the evidence, that the use of such machinery is indispensable to the successful prosecution of the business in which both of these companies are engaged.

The ease of The Rhodes & Beidler Company v. Erie Railroad Company et al (not reported), decided by this court at a former term, involved facts and issues in some respects identical with, and, in other respects, very similar to those to be considered in the determination of this case. Because of the criticism made on our decision in that' case and the further fact that the court is now differently constituted, we have carefully considered all the facts ■bearing upon this case and the law therein announced.

The defendant, The Brie Railroad Company, is a common carrier of freight and passengers, and as such hauls large quantities of coal from the mines in Pennsylvania to Cleveland, designed for trans-shipment there to vessels for carriage to the upper lakes. Coal transferred over its road by the railroad company for this purpose constitutes a distinct class of freight for which a special or distinct rate is fixed by the company. This railroad company owns a large dock frontage on the Cuyahoga river with which its tracks do. and for many years have connected. A dock owned by the railroad company with which its tracks thus connect has for a number of years been used mainly, if not solely, for the transfer of coal from cars to vessels or for loading coal on boats. The methods of doing this have been of various kinds and improved from time to time.

In 1895 several shippers of coal over this road caused to be incorporated the defendant, The Erie Coal Transfer Company. The business of this corporation was the unloading of coal from cars to vessels, which, up to this time, had ‘been principally done by each individual shipper in his own way, but upon the docks provided by the railroad company. It was, undoubtedly, in contemplation of all parties to that arrangement, including the railroad company, -that better' facilities should be provided for that work. In furtherance of such purpose, the railroad company and transfer company, on March 9, 1895, entered into a written agreement as follows:

“This memorandum of agreement entered into this ninth day of Miarch, 1895, between the New York, Lake Erie & Western Railroad Company, and John King and John McCullough, as receivers of the property of said company, and the successors and assigns of each of them, party of the first part, and the Erie Coal Transfer Company (hereinafter called the transfer company), party of the second part, witnesseth: The party of the first part is to furnish at his own expense and maintain certain tracks and dock facilities on the Cuyahoga river, at Cleveland, Ohio, as shown on the attached plans, to be used for the transfer from cars -to vessels of coal shipped, over its lines. The transfer company agrees to provide, maintain and operate at its own cost and at its own risk, a' machine for the dumping of coal from cars via chutes into vessels. In so maintaining it second party shall keep it in good repair and condition so that in case of any purchase by the first party of the machine, or of stock of the transfer company, as hereinafter provided, the machine shall be at the time of such purchase as good as new, depreciation from ordinary use, wear and tear, that can not be made good by such repairs as a prudent Owner would naturally 'make, alone excepted. The plans for the said machine are to he submitted to and a2)proved by the chief engineer of the said receivers, and the transfer company is to have the right to enter upon and use so much of the first party’s property as may he necessary for the erection, maintenance and operation of said machine, as shown on plan hereto attached. The transfer company is to influence as far as possible the shipments of coal over the line of first party for handling at its plant, and is to charge parties for coal handled: at the plant a price for said handling which shall be fixed from'time to time by first party’s general freight agent at Cleveland, which price, however, shall in no event be less than the minimum charge for similar services at Cleveland, Ashtabula, Fairport, Uonneaut' and Erie, nor less than the costs to the second party handling the same, in such cost of handling to be taken into consideration the expense of keeping the machine in good repair and condition and a five per cent, annual profit on the costs of the machine.
“Should the-chief engineer of the "first party within.' the first sixty days of -operation of the machine, -after its erection, decide the machine to be a failure for the purposes f-or which it is intended, this contract shall terminate on notice from first party, and thereupon second party shall remove the machine, and the net loss to second party on the cost of the machine shall be borne, half by the second party and half by the first' party, first party giving second party half of such net loss. Second party agrees to use its best endeavors to keep the -plant in operation up to its full capacity during the whole of each season, and if second party shall ■fail, -and after five days’ notice from first party continue to fail to comply with such agreements, first party may require second party to handle at the plant such coal as first party may tender, or ¿ause to be tendered, at a price fixed by said general freight agent; such price, however, not to be lower than the minimum price for like service at the time being at the ports above mentioned. Should second party fail for ten days thereafter to handle such coal at such price, then first party may terminate this contract upon five days’ notice to second party and! thereupon second -party shall be required to remove its machine and withdraw from the -premises. First party sh-al-l have the privilege during the month of January in any year during the continuance of this contract of purchasing from second party the transferring machine herein provided, for, or of purchasing from any stockholder of second party all or any of his stock upon giving at' any time during said month of January, thirty days’ notice of its desire so to do, at a price equal -to the cost price of such machine as the stock purchased shall be of the total stock of the second party, less the depreciation on such cost price from the ordinary wear and tear of such machine, not to be made good by the repairs that' second party is to make, which depreciation is hereby fixed for the purpose of this provision at five per cent, per annum; and first party agrees at the election of second party to purchase the machine, or at the election of any stockholder of second party to purchase his stock at a price measured by the cost price of the machine, less depreciation in the manner above described; provided, thirty days’ notice of such election of second party or of its stockholders shall be given first party in the month of January in any year during the continuance of this contract. In case, however, any such stockholder shall call on first party to buy his stock in such manner, first party may buy all or any portion of the rest of the rest of the stock of the transfer company at a price computed in the manner aforesaid, by giving notice of bis ■desire so to do, within thirty days thereafter.”

The- parties to this agreement immediately entered upon its fulfillment. It can not be denied that the plant which was to be and was constructed under this contract was intended to be used by all ■shippers of coal brought to Cleveland by the Erie Railroad Company for shipment by boat to the upper lakes. The railroad company not only furnished a large proportion of the expense for the construction of this plant, considered as a whole, but retained absolute control over the conduct of the business thus provided for. The railroad company built the trestle, tracks and foundations, and furnished the dock as therein agreed. The transfer company erected the machine, but', before that was done, plans were to be .and undoubtedly were submitted to and approved by the railroad company. Indeed, the railroad company, in fact constructed the machine but not at its own expense. The transfer company stipulated t'o influence as far as possible the shipment of coal over the Erie railroad to be handled at this plant at a price to be fixed by the railroad company. Manifestly such influence was to extend to- any and all shippers of this class of freight and the use of this plant was to be extended t'o all without discrimination.

The transfer company also agreed with the railroad company to use its best endeavors to keep the plant in operation np to its fall capacity daring the whole of each season. It is plain that this agreement with the transfer company was exacted by the railroad company for the accommodation of shippers of coal over its road and that all might be served alike. There are other stipulations of the contract of like import.

Under these facts it seems plain that the occupation of this dock, the use of this machine, the tracks and trestles leading to both— the plant as a whole — was only a means employed by tbe railroad company in the process of its legitimate business as a common carrier. • •'

To induce tbe shipment of coal over its track, designed , for trans-shipment at Cleveland from cars to boats, it was entirely proper that the railroad company should furnish means for such trans-shipment. This contract provided proper and effective means for that purpose. Moreover it was the means designed by both parties to be open to all shippers of that class of freight without discrimination; and it seems clear that while this arrangement remained in force, the whole plant, the tracks, the trestles and foundation, which the railroad company was bound to furnish, and the machine to be used and operated by tbe transfer company under the restrictions and conditions named in said contract were intended to be, and were in fact devoted to a public use, and that in this way this plant became inseparably connected with, and was, in fact, a part of the property of the railroad company, used by it in the performance of its duty as a common carrier.

The business continued under this contract and in the manner therein contemplated until December, 1899. A change in the size of the cars used in the carriage of this class of freight necessitated a change in the plant. The defendant, The Pittsburgh Co'al Company, was at this time a large shipper of coal over the Erie railroad for trans-shipment at Cleveland and interested in bringing about these changes.

After some negotiations, on December 15, 1899, the Pittsburgh Coal Company and the Erie Eailroad Company settled the preliminary steps to be taken in effectuating such -change as shown by the following memoranda:

“Memorandum of understanding -between Mr. Osborne, of the Pittsburgh Coal Company, and Messrs. Cochran, Buehholtz, Moor-head 'and Middleton representing the Brie Railroad Company, of Cleveland, December 15; 1899.
“The cost of the new car-unloader to be erected at Cleveland is estimated at forty thousand dollars ($40,000). The cost of transferring the present loader to a new site is estimated at twenty thousand dollars ($20,000). Total new capital required is estimated sixty thousand dollars ($60,000). The Erie Coal Transfer Company is to increase its capital stock sixty thousand dollars ($60,-000) or whatever amount may be sufficient to cover the above expenses. Of the increased new capital stock the Pittsburgh Coal Company is to purchase at par fifty per centum (50 per cent.). The. increased capital stock is t'o be handled and placed in trust in the same manner as -the present capital stock of the Erie Coal Transfer Company; the Erie Railroad Company to have the same option in regard to purchase as exists in the present contract between the Erie Railroad Company and its predecessors and the Erie Coal Transfer Company.”

On the construction of the new fast unloader it was proposed to supersede the original contract between the -Erie Railroad Company and the Erie Transfer Company by a new contract. A copy of that agreement as proposed by the railroad company was given in evidence. That agreement was never signed. The design, however, of this proposed arrangement was not different from that originally made between the railroad company and the transfer company. The understanding of the railroad company of the situation as it existed after the changes contemplated were made, appears not only from this proposed contract, but from statements made by the officials of the road, by telegrams and letters sent to the plaintiff company. Clearly the railroad company designed to furnish a mode for the transfer of this class of freight at Cleveland from cars to boats which should be available to all shippers of that class of freight over its road; and such was the understanding of the railroad company down to April 16, 19.02. The old machine known as No. 2 was moved, and the new No. 1 constructed as contemplated. The cost was proportioned one-half to the railroad company and one-half to the Pittsburgh Coal Company. The tracks, trestles, etc., were adapted to the use of both machines by the railroad company, and the plant, as reconstructed under this arrangement, has continued in use to the present time. From its completion in the spring of 1900, the Pittsburgh Coal Company was, perhaps, the only shipper of this class of freight to Cleveland over the Erie road and the only user of this plant down to April, 1902. In April of that year the plaintiff company began the shipment of coal over its road demanding that its coal be handled over this plant. This request of the plaintiff was refused after considerable negotiations for two reasons:

First. That the machine No. 1, constructed as we have seen, was the private property of the Pittsburgh Coal Company, used for its own private purposes, and, whether owned by the coal com-' pany or by the coal company and the railroad company jointly, it had never been devoted to a public use so as to be subject to the control of the courts.

Second. That if it ever was so devoted to a public use, it was by a sale and transfer made April 16, 1902, by the railroad company of all its interest to the Pittsburgh Coal Company, withdrawn from such use.

The first of these. claims has already been considered to some extent, so far at least as it related to machine No. 2, and the conclusion reached that it had been devoted to such public use.

The relation of the railroad company to this plant as reconstructed, and this new machine, independent of the alleged sale of April 16, 1902, is in no sense different from its relation to the plant before such reconstruction. It will not be denied that a railroad company may furnish terminal facilities, depots, etc., for the proper conduct of its business as a common carrier to which all shippers are entitled to equal privileges. The means of handling freight at depots should be and is available to all. The coal handled over this dock and this fast unloader belongs to a distinct class of freight, for the handling of which other means than yards and depots are required. This has been recognized by the railroad company and proper terminals and facilities for handling have been provided. The facts do not warrant the assumption that the business of receiving this class of freight and transferring it from cars t'o boats is disconnected with the business of the railroad company as a common carrier. It was recognized and made a part of such business by the railroad company. This entire plant down to April 16, 1902, was devoted to a public use. The fact that the machine, which was only a part of the entire plant, which could not be operated independent of the railroad and the use of its property, was owned, in whole or in part by the transfer company or the Pittsburgh Coal Company does not vary this fact. The operation of taking loaded cars from the yard of the railroad company and dumping their content's into the vessels was in part done by the railroad comparry, which owned at least a large proportion of the property used in this operation, and' the whole was an agency employed by the railroad company for that purpose.

As to the second claim of the defendants it is not' disputed that the railroad company might not, acting in good faith, withdraw this service from all shippers; deliver the coal only in its )rards, leaving each to provide its own means of making the transfer, but this has not been done. Instead of enforcing the position taken by the railroad company, in its letters, it claims to have sold its entire interest in the fast unloader to the Pittsburgh Coal Compjany and leased to that company so much of it's docks as is necessary for the prosecution of the business connected therewith, thereby putting out of its power to comply with the request of the plaintiff.

This alleged sale rests entirely in parol; no written evidence of the sale or receipt of the money is produced. A lease from the railroad company to the Pittsburgh Coal Company of the proposed privileges upon this dock was drawn, but has ¡not to the present time been executed. There has been no change in the mode of doing business. The railroad company still owns the dock, trestles, tracks and foundations of the machine. It continues to deliver cars at the machine and remove them when unloaded as heretofore. If is conclusive that this sale and lease, pretended or otherwise, was intended to aid in excluding the plaintiff from the use of this plant and securing to the Pittsburgh Coal Company the exclusive use of the same. This, we believe, was the sole purpose of this arrangement and that the agreement went only so far as it was thought necessary to accomplish that one object. We seriously doubt whether it was intended that that lease should be executed or that it ever will be. It will have accomplished its full purpose if the plaintiff is excluded from the use of that machine.

We can not hold from this evidence that this plant] by the transaction of April 16, was withdrawn from public use to which it had been for several years devoted by the railroad- company. The dock, the trestles, tracks, and foundations of this plant are terminal facilities of the railroad company, the exclusive use of which it could not rightfully grant to one shipper of coal and refuse to another without an unlawful discrimination. The fact that only part of this plant which, prior to April 16, was owned jointly by the Pittsburgh Company and the Erie Railroad Company, but is now owned wholly by the former -company, if such be the fact, cam not'change the rights of the patrons of the Erie Railroad Company, -and so long as that company maintains this plant for this purpose in the manner here indicated and handles -the cars thereon for the benefit of one shipper it must for all.

The true intent and meaning of the arrangements between the railroad company, the Pittsburg Coal Company and the transfer company was to provide by the railroad company a means for the transfer of coal from cars to boats for the accommodation of it's patrons. The control of the means thus -provided, by whomsoever owned, has at all times been in the substantial control of the railroad company, and without' its co-operation could not be operated. Any private ownership of the fast unloaders has at all times been and is now under such arrangements subject to such control by the railroad company. This results from the nature of the transaction, the uses to which the fast unloaders were devoted in connection with the property of the railroad company, the service performed by the railroad company in making the transfer, and the proper construction and interpretation to be given t'o the contracts between the owners or part-owners of the fast unloader machine and the railroad company.

But it is said that the railroad company has performed its full duty toward -the plaintiff by tendering to it a dock and location for a like plant further up the river. This claim is made from ‘allegations sustained din the answer. We do not understand that the railroad company has, in any binding way, offered or agreed to fit up -a plant for the use of the plaintiff, of equal cost, convenience and efficiency as the one now used by the Pittsburgh Coal Company. The means now provided by the railroad company for the handling of this class of freight is 'ample to accommodate all shippers over its road of coal designed for the upper lakes; and we do not think that the railroad company has relieved itself from the charge of discrimination as between shippers by the offer made.

Hoyt, Dustin & Kelly, for plaintiff.

Williamson, Gushing & Clark, for Erie Railway Co.

Wilcox, Canister, Hogan & Parmely and Goulder, Holding & Masten, for Pittsburgh Coal Co. and Erie Coal Transfer Co.

We have examined the many cases cited by counsel; but, if the conclusions reached 'by us on the fact's are to stand, there can be no disagreement as to the law applicable to those facts, and hence we have not deemed it necessary to enter upon a review of the authorities cited.

Judgment for plaintiff.


source: Caselaw Access Project

license: Public Domain

text:
    A BROKER DOES NOT BECOME THE EQUITABLE OWNER OF STOCK PURCHASED FOR AN UNDISCLOSED CLIENT.
    [Circuit Court of Cuyahoga County.]
    P. C. Joecken v. The Cuyahoga Savings & Banking Company et al.
    Decided, June 1, 1903.

      Stockholders’ Liability — Brokers not “Equitable” Owners of Stock, When — Section 3259, Defining Stockholders.

    A stockholder in an Ohio corporation endorsed his certificate in blank and left it with a stock broker, a member of the stock exchange, to be sold for the best price to be obtained. The broker sold the stock on the floor of the exchange to another broker and member of the exchange, who stated that he was buying for a client, but did not disclose the client’s name. The selling broker delivered the stock with memorandum of sale to the buying broker, and the latter gave his check therefor, and notified his client, who received the stock and paid for it. The stock was never transferred upon the books of the corporation, and the purchaser of the stocir died insolvent. The corporation becoming insolvent, suit was brought to subject its stockholders’ liability, the original stockholder and the buying broker being made parties thereto. Held: The broker buying the stock is not liable as a stockholder of the company.

      Winch, J.; Hale, J., and Marvin, J., concur.
    Appeal from the court of common pleas.
   In April, 190.1, Dr. E. G. Carpenter was the owner of five shares of stock in the Cuyahoga Savings & Banking Company, represented by a certificate of stock issued in his name. Said certificate of stock, endorsed in blank, was left for sale with H. C. Studley, a broker and member of the Cleveland Stock Exchange, with instructions to sell it for the best price he could get, and on April 9, 1901, Studley sold it at the stock exchange to Lamprecht Brothers & Company, who were also brokers and members of said stock • exchange. They had an order from one R. N. Pollock to buy this stock for him, but' did not disclose this fact to Studley, although they told him they were buying for a client. The certificate endorsed as aforesaid, accompanied by a memorandum as follows: “Cleveland, April 17, 1901, H. C. Studley & Co., sold to Lamprecht Bros. & Co. 5 shares Cuyahoga Savings & Banking Co., .at 105. $525” was delivered to Lamprecht Brothers & Company, who thereupon gave to Stndley their cheek for the amount of the purchase price.

Immediately thereafter Lamprecht Brothers & Company notified said Pollock that they had purchased said stock for him, and he paid them for it and it was delivered to him.

No transfer of the stock was ever entered upon the books of the banking company.

Pollock died insolvent and the bank becoming insolvent, this action was begun to subject the stockholders’ liability to the payment of its debts.

Carpenter being made party to this suit brought in Lamprecht Brothers & Company, and we are asked, upon the foregoing facts, to find Lamprecht Brothers & Company liable as stockholders.

Section 3259, R. S. O., defines the word, “stockholders” and says it shall he held to apply not only to such persons as appear by the books of the corporation to he snoh, but to any equitable owner of stock, although the stock appears on the books of the corporation in the name of another.

As Lamprecht Brothers & Company never appeared on the hooks of the company as stockholders, the only question remaining is whether or not they were ever equitable owners of stock.

M. B. & E. E. Johnson, for plaintiff.

A. G. Carpenter and P. Q. Karrulker, for Carpenter and Melcher.

P. A. Eenry, for Lamprecht Bros. & Co.

It is apparent that they never had any beneficial interest in the stock. Acting under a commission from Pollock, they purchased the stock for his account and immediately delivered it to him. They were Pollock’s intermediaries on the exchange and in the negotiations with Studley. The fact that they did not disclose to Studley who they were acting for in no- wise affects the ownership of the stock, whatever rights Studley might have had against them on that account, had they or their principal refused to pay for the stock. They never held themselves out as stockholders to the bank or its creditors. From aught that appears in the record neither the representatives of the bank nor its creditors are now claiming them to be such, but Carpenter seeks to shift his responsibility to them. Whether in an action brought by Carpenter against Lamprecht Brothers & Company to indemnify him on his stockholder’s liability, Lamprecht Brothers & Company would be 'estopped from denying their obligation because they neglected to disclose the name of the principal for whom they were acting as agent, we are not called upon to decide; but in such action it would seem that the conduct of the vendor of the stock in endorsing the certificate in blank and offering it on the open market, to pass by delivery, without proviso as to the solvency of any possible purchaser, would work a count'er-estoppel and leave the vendor without equity, and it has been so held. Boultbee v. Gzowsld, 24 Ont. App. Rep., 502.

The facts in this case do not warrant the conclusion that Lamprecht Brothers & Company were ever the owners of said five shares of stock of the Cuyahoga Savings & Banking Company. Substantially the same facte appear with reference to the transfer to them of five shares of stock owned by Robert W. Boyd and ten shares owned by J. A. Melcher.

Judgment is entered accordingly, both in this case (No. 3015) and in case No. 3024.


text:
    UNFAIR. CONTRACT BETWEEN A BOARD OF DIRECTORS AND SOME OF ITS MEMBERS.
    [Circuit Court of Hamilton County.]
    The United States Board & Paper Company v. Wallace F. Browne et al.
    Decided, July, 1903.

      Special Charges — Must he Given Before Argument When Requested— Interest of Directors Antagonistic to That of the Company — Contract with, Unfair to the Company May he Set Aside — Good Faith as Distinguished from Unerring Judgment — Ratification—Commissions and Discounts.

    1. It is not a matter of discretion, for the court to withhold until after argument to the jury the giving of such written propositions as are requested and properly state the law applicable to the case; such propositions should be given before argument, and refusal to so give them is ground for reversal.
    2. Where the hoard of directors of a mill property enter into a contract with a selling agency for the disposal of the product of the mill, and some of the directors are interested in this agency, and thus make a profit which might and should have gone to the company, and the efforts of such directors are in the interest of the agency as against the interest of the corporation, such conduct constitutes a sufficient ground for the cancellation of the contract by the company.
    Marvin, J.; Swing, J., and Mooney, J., concur.
    Error flo court of common pleas.
   The parties here are the reverse of what they ivere in the court of common pleas; they will, however, be spoken of in this opinion as they stood in the. original action.

The original plaintiffs were Wallace F. Browne and Wm. A. Stuart, doing business as a co-partnership under the firm name of Browne & Stuart.

Before the last trial id the court of common pleas, the plaintiff, Wallace F. Browne, died and H. C. Yeiser, as administrator of the estate, was made a party in his stead.

The defendant is a corporation organized under the laws of the state of Indiana. The first trial of the ease was to the court, a juiy having bee© waived, and resulted in a judgment' for the defendant. This judgment was reversed by this court and the case remanded to the court of common pleas. The case was then tried in that court to a jury, resulting in a verdict and judgment for tire plaintiffs.

By proper proceedings this last judgment is 'here for review. A bill of exceptions showing the proceedings upon the trial, including all the evidence, is filed here.

The issues upon the last trial differed somewhat from the issues as they were in the first trial, such difference resulting from an amended answer filed in the case and a reply filed thereto.

The plaintiffs claim that the defendant was a manufacturer of straw boiard for use in making paper boxes; that on the 19th day of December, 1896, defendant entered into a contract with plaintiff®, by which plaintiffs were to act as the selling agents of the defendant for one year from that date, and the defendant agreed to pay plaintiffs for services, as such agents, a commission of 7 per cant, on the sale of all goods sold by them. Plaintiffs undertook the performance of the contract on their part, and acted as such selling agents up to the 26th .’day of April, 1897, when they were discharged from such employment; plaintiffs say they have been ready, able and willing to perform all the conditions of said contract to he performed by them, but they have been prevented from doing anything thereunder since April 26th, 1897, and pray for damages.

The defendant says that whatever contract was made with the plaintiffs was the adoption of a resolution by its hoard of directors, on the 19th day of December, 1896, which was in these vrords:

“Be it Resolved, That we employ Browne & Stuart as selling agents for the company for one year, at a commission of 7 per cent., all sales being subject to the usual cash discount o-f 3 per cent., that is, in 10 days from the date of shipment, and all payments to be made in cash.”

At the time of the adoption of this resolution .the plaintiff, Wallace F. Browne, was one of the board/ of directors of the defendant; the other members being Charles W. Bell, H. C. Yeiser, Jackson H. Dnnoain and Henry M. Wrigiley. The said Charles W. Bell was an employe of the plaintiffs, Browne & Stuart.

It is alleged on the part of the defendant that Browne & Stuart, Yeiser aud Bell conspired together to have said resolution adopted for the purpose of giving to- said Browne & Stu'art the contract to act as selling agents of the defendant' for a compensation much greater than should have been paid to them, and that but for the votes of said Browne, Bell and Yeiser, said resolution would not, and could not, have been adopted; that' they, the three last-named, all voted for it; that said Browne was president of the defendant company, and that said Yeiser was an intimate; confidential friend of both said Browne and Stuart; that said Bell made a contract with said Browne & Stuart, whereby he was to act for and with them in the sale of the product of the factory of said defendant," and to receive for his services one-half of the profits of the sale of said product provided for in said resolution to be paid to s'aid Browne & Stuart; that the stockholders of said defendant company were ignorant -of the terms of the resolution hereinbefore quoted, and of the fact that any such contract had been made with said Browne & Stuart.

The answer further avers that said Browne & Stuart and Bell were promoters of said defendant company, and brought about its organization, and that it was supposed by the other directors that this contract was in. part made as payment for their services in bringing about the organisation of said corporation.

It is further averred that said Bell was the managing agent of the defendant company, and that said Browne & Stuart were to pay him in full for bis services as such managing director out of the profits-which they should make under said resolution; that the corporation was organized by the stockholders for the reason that most of them were consumers' of straw board such as- was to be manufactured by the defendant, and that the price at which such straw board was sold in the market was much higher tb-a.n it could be produced for, amid the design and purpose was to- organize the defendant' and produce the straw board and furnish it to the stockholders at a reasonable price — much less than the market price which they were required to pay for said board.

By-Law No. 8 of the defendant company reads:

“The stockholders of the company shall have the privilege of braying in any one year the product of the mill of this company in the proportion that the amount of the stock owned by them bears to the -capital stock of -the -company, and the price to stockholders only shall! not exceed $22.51 per ton for plain, steam dried straw board, free on board, at tbe mill, and tbe price on all other products of the mill shall be on the same relative basis as determined by the board of directors, and tbe board of directors are hereby empowered and directed to have said deliveries made as soon as possible, preference being given to all orders of stockholders over those who are not stockholders.”

The product of the mill was not greatly in excess of the amount which the several stockholders needed in their business.

There was no meeting of the board of directors after the daté of the passage of the resolution employing Browne" & Stuart as selling agents, until the 26th day of April, 1897, at which a resolution was adopted, discharging said Browne & Stuart from their agency.

The course pursued by Browne & Stuart ira tbe selling of the products of the mill was to have all the goods billed to them; then they billed to the several stockholders the goods which they purchased under By-Uaiw No. 8 'and charged the commission of 7 per cent, on all these sales, and also credited to themselves 3 per cent, as for cash payment of the goods.

The claim -of the defendant is thait the contract was a burdensome one upon it, unfair in its terms, and brought about by the unfair action of the plaintiffs and Bell.

The defendant claims further that the course pursued by the plaintiffs in disposing of the goods and charging up both the 7 per cent, commission 'and the 3 per cent, discount on goods taken by stockholders of the corporation, was taking an unfair advantage of the defendant, and that the action taken by the defendant in removing them was taken as early as it could be after tbe facts had become known to tbe stockholders and a board of directors could be secured which was fair and unprejudiced.

The plaintiffs reply to the answer, pleading a ratification of the contract by their being permitted to go on for the period of four months without interferemce by the defendant; and also denying all unfairness in the terms of the contract and in the manner of its procurement and its execution.

When this case was in this court before, it was held (20 C. C., 351), that the mere fact that the contract was made with Browne & Stuart while Browne .was one of the directors of the defendant company, was mot, in itself, sufficient to avoid the contract.

It was further said by the court at that time that there seemed to be nothing unfair in the contract itself.

The court, in its opinion, called attention to the fact that the other issues sought to be made in the case, bo-wit, the improper manner in -which Browne & Stuart had sought to carry out the contract, charging commission and discounts for sales made to stockholders of the company, and the question of ratification, were not made by the pleadings.

These questions, are made in the present case.

Among other complaints made by the defendant is that the court refused to give in charge to the jury before the argument of the ease, certain propositions furnished to the court by the de^ fendant in writing, with a request that they be charged before argument.

Section 5190, Rev. Stat., Subdivision 5, provides:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument bo the jury is commenced.”

Under this provision of the law it is, undoubtedly, the right of a party to have 'given to the jury 'before argument such written propositions -as he may request, provided such propositions properly state the law applicable to the case. It is not a matter of discretion with the court to withhold the giving of such propositions until after the case is argued, and, if propositions were requested iu this ease which should have been given before argument, the refusal to give snch propositions was error for which the case should be reversed.

The defendant submitted, in writing, eight propositions to the court; each was refused, and the proper exceptions taken to such refusal.

The first of these propositions was tq the effect that if Browne was a director of the defendant company, and, at the same time, a member of the firm of Browne & Stuart at the time the contract was made, such facts alone would warrant the company in rescinding the contract.. The bolding of the court in this case when it was here before was sufficient to authorize the court 'to refuse to give this instruction.

The second proposition was that if Browne, Bell and Yeiser were interested directly or indirectly in this contract, and were members of the board of directors at the time the resolution was adopted, and voted for it, such facte would warrant the company in rescinding the contract. For the same reason that the court was justified in refusing the first proposition, it was justified in refusing this.

The third proposition requested was in these words:

“If you find from the evidence, that the plaintiffs, Browne & Stuart, while acting as selling agents for the defendant company under the resolution of employment of December 19th, 1896, bo conducted the selling agency as to make a profit for themselves which might and should have gone to the defendant company, I charge you that such conduct on their part would constitute a good reason for their discharge by the defendant company.”

This proposition should have been given; there was evidence in the case justifying it; there was evidence from which the jury might well have found that the manner in which this selling agency was conducted by Browne & Stuart was not for the best interests of the company.

Surely, if the contract entered into with Browne & Stuart, authorized them to deduct' a commission of 7 per cent, and a discount of 3 per cent, on such product of the mill as was taken by stockholders of the company under By-Law No. 8, it was a most extraordinary contract for the company to have made, and, though this court said when the case was here before, that the mere fact that directors of the company were interested for the parties with whom the company made the contract, was not in itself sufficient to warrant the rescinding of such contract, still a contract made by directors of a corporation with themselves as individuals, or with co-partnerships in. which they are interested, should be scrutinized with care. The temptation is very strong for one to look after his own interests rather than the interests of his cestui que trusts where such interests conflict.

Surely, where one acting as the director of a corporation votes for a contract with a co-partnership of which he is a member, if in the carrying out of such contract, his efforts are for the interests of his partnership as against the interests of the corporation, the rule requiring good faith to his principal on the part of an employe, should be rigidly enforced.

“A man can not serve two masters.” And, if in the serving of the one, “he” — to use the language of the request — “so conducted the business as to make a profit for himself which might and should have gone t'o the defendant company,” he has endeavored to serve the wrong master, and the other may discharge him.

The fourth proposition requested is in these words:

“If you find from the evidence, that the plaintiffs, Browne & Stuart, while acting as selling agents' for the defendant company, violated any duty which they owed to the defendant company as agents, or failed to sell the product of the defendant company to the best advantage for the defendant company so as to realize the best profits to the company, or -if they, or either of them, interfered with the management of the defendant company’s business •without authority from the board of directors, or if they failed in any other respect to perform their entire duty toward the defendant company, I charge you that such conduct would constitute a justification for their discharge and tjhie defendant company was warranted in dispensing with their services, and the plaintiffs can not recover in this action.”

This proposition, if given, would have required the jury to overlook all questions of ratification, and also to have justified the defendant in discharging the plaintiffs for the slightest failure to perform their whole duty for the defendant.

■We think the court was justified in refusing this proposition. It differs from the third in that it requires, not only absolute good faith on the part of the plaintiffs, hut the exercise of unerring judgment, and, as already said, would entirely do away with all questions of ratification. The refusal to give this request would not justify a reversal. •

The sixth proposition reads:

“If yon find from the evidence that the plaintiffs, Browne & Stuart, charged the defendant company with commissions upon goods which they, the plaintiffs, purchased from the defendant company, even though the plaintiffs were entitled as stockholders to purchase a part of the product of the defendant company’s mill, the commissions which they charged, and took, upon any portion of the-product-of defendant’s mill, to which.they might be entitled, was an improper charge and a wrongful act upon the part of the plaintiffs, and such conduct upon their part would justify their discharge by the defendant company.”

This proposition should have been given. If this is not the law properly applicable to this case, then we have the extraordinary proposition that this company made a contract with Browne & Stuart by which they should not only have a commission on all the goods which they directly or indirectly sold to anybody else, but also that they might have a commission on goods which they themselves took by virtue of By-Law No. 8. It seems incredible that such construction should b.e given to the contract. We think it clearly could not have been intended by the company, and would be such an injustice as would justify the company in discharging the plaintiffs.

The seventh proposition was properly refused. A fair construction of the resolution of December 19th, 1896, is that the mill was to be operated for a year and the plaintiffs were to sell the product for that time.

•The eighth proposition reads:

"If you find from the evidence that the contract of agency between the plaintiffs and the defendant company, entered into on the 19th day of December, 1896, was, in any. wise, unfair or unjust to the defendant company, then I charge you that by reason of that fact and the further facts, if you should so find, that Browne and Bell were 'directors of the defendant company and participated in the making of the contract with the defendant company while acting as such directors and were also interested in the profits of the contract which they were making for themselves with the company, the defendant company had the right, at its option, to discharge the plaintiffs, Browne and Stuart, and terminate the 'agency.”

It is possible that we would not feel justified in reversing the judgment in this ease because qf the failure to give this proposition, although, in the main, we believe that it properly states the law. It is .possible, however, that it might have misled the jury upon the matteT of ratification. Except' for this, we see no reason why the proposition should not have been given, for though, 'as already stated, the mere fact that directors of the corporation were interested on the other side of the contract ■would' not alone justify a rescission of the contract, yet when by ■the votes of directors of the corporation, who are interested on the other side of the contract, a contract unfair to the corporation is made — when such facts become known, the corporation is justified in rescinding such contract.

Complaint was further made of what was said by -the court in its charge to the jury. Among other things, the court' said, as -appears on page 347 of the hill of exceptions:

“It .is very clear that some one was to have the benefit of 3 per cent.- for cash payments on. the sales, that is, for 10 days, meaning thereby that if it was spot cash at the time of the transaction, -or cash within 10 days after the transaction, for such a transaction some one was entitled to 3 per cent, in addition to the 7 per cent, that the agents were to receive as their commission for the sale of the product of the mill.”

We think this was -calculated to mislead the jury. The purchaser of the goods was entitled to a discount of 3 per cent, for •cash paid within 10 days of the sale; nobody else was entitled to it. This .3 per cent. Was not- to be paid to the selling agents, hut was to be allowed the purchaser. If the purchaser failed to get this, it would not be lawful for the ageut because he had made a sale for his principal whereby he saved that' 3 per cent, to appropriate it to himself; his principal would be entitled to -that.

In its instructions to the jury as to the measure of damages to ■which the plaintiffs would he entitled if they were entitled to recover in the case, the court directed the jury that in estimating -such damages they should allow 7 per cent, on the entire product of the mill from the time the plaintiffs were discharged, up to ■the end of the year for which they were originally employed; and, in addition thereto, said to them that if the plaintiffs paid cash, ■and it might be assumed that they would, they were entitled to an .additional 3 per cent, as discounts on the sale, deducting therefrom whatever expense the plaintiffs would be put to in the performance of their work as sales agents.

We think this was erroneous. It is upon the same theory as has .already been commented upon, that the agents who made the •sales were to have the 3 per cent discount, and further, upon the -theory that they were to have both commissions and discounts on so much of t'he product of the mill as they themselves took under By-Law No. 8. What has already been said in the case express our views upon this subject.

F. M. Gorman and Edward J. Dempsey, for plaintiff in error. .

Pogue & Pogue and G. Bentley Matthews, for defendants in error.

In any proper view of the case, we think it clear that the damages allowed were excessive, and excessive because the jury must have computed something more than seven per cent, on the entire product of the mill in order to reach the verdict which they did. This they should not have done. For these errors the judgment of the court of common pleas is reversed, and the case remanded for further proceedings.


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    JURISDICTION OF JUSTICES OF THE PEACE IN SUITS AGAINST RAILROAD COMPANIES.
    [Circuit Court of Lucas County.]
    Elwood B. Squire v. The Wheeling & Lake Erie Railroad Company.
    Decided, July 3, 1903.

      Justice of the Peace — Jurisdiction of — Against Railroad Companies Under Section 6478 — Against Freeholders in Attachment Proceedings Under Section 584 — Interpleader—Appearance.
    1. While the jurisdiction of a justice of the peace is co-extensive with the county in an attachment proceeding against a householder or freeholder resident in the county, such jurisdiction does not extend to a railroad company unless its president resides in the township or its road passes into or through the township.
    2. The filing of a motion hy a defendant for an interpleader does not amount to the entering of an appearance.
    Parker, J.; Hull, J., and Haynes, J., concur.
   Squire brought an action against the Wheeling & Lake Erie Railroad Company upon a claim for wages of an employe, which he said had been assigned to him, before a justice of the peace of Washington township in this county. Under the provisions of Section 584 of the Revised Statutes, as amended April 19, 1898 (93 O. L., 146), he filed an affidavit that the claim was for labor, and caused a writ of attachment to issue against the defendant railroad company, and proceeded to judgment in that jurisdiction upon the theory that he might do so by virtue of said section, although said railroad company had no line of railroad passing through or entering into Washington township, and had no principal or other office there, and had no officer residing there.

In the case of Kelly v. Flanagan, 11 Ohio Circuit Decisions, 111, we held — -because we felt obliged to so hold, and not because we wanted to by any means — that a natural person might be proceeded against in that way. After judgment against the railroad company, it filed before the justice a motion for an interpleader with the necessary affidavit, setting forth that another person, to-Wit, the employe, claimed to be entitled to this money, but that was disregarded by the justice. It will be observed that it came a little late — after judgment — but on the same day.

Thereupon the railroad company filed its petition in error in the court of common pleas to reverse said judgment, on the ground that the justice had no jurisdiction over it, and in the petition in error, which was verified, set forth the facts that I have mentioned ■ — that its line of railroad did not enter into Washington township; that it had no officer and no office there, and the judgment was reversed by the common pleas court.

Squire prosecutes error to this court, 'and asks that the judgment of the court of common pleas may be reversed and that of the justice affirmed.

Section 6478 of the Revised Statutes of Ohio provides where a railroad company may be sued before a justice of the peace and how it may be served with process; and the provision as to where suit may be instituted is that it' may be brought before a justice of the peace in the township in which the president of the company may reside, or in any township into or through which the road owned -or leased by said company may be located, whether such company be foreign or created under the laws of the state, and whether the charter thereof prescribes the place where suit must be brought against it, or the manner or place of service of process thereon; and that is the only place where a railroad company may be sued, unless it voluntarily submits to the exercise o-f jurisdiction elsewhere, or unless Section 584 is applicable to a railroad company. But Section 584 provides:

William, J. Gill, for plaintiff in error.

Doyle & Lewis, for defendant in error.

“No householder or freeholder, resident of the county, shall be held to answer a summons issued against him by a justice in a civil matter in any township of such county other than the one where he resides, except as otherwise provided -by Section five hundred and eighty-three, and in the cases following.”

Among the cases in the fourth paragraph of this section is this:

“Where the summons is accompanied with an order to attach property the jurisdiction is eo-extensive with the county.”

Except in certain counties. Now, that transposed, would make it read so as to amount to this: That where the summons is accompanied with an -order to attach property, the jurisdiction of the justice shall be co-extensive with the county against a householder or a freeholder, resident' -of the county. But it is quite apparent that a householder -or -a freeholder is a natural person, and that this -does not apply to a railroad companj’’, which is an artificial person. A railroad -company certainly is not a householder nor a freeholder, and that is all that need to be said on this point'.

It is urged that by the filing of the motion for an interpleader, the railroad company entered its appearance and can not now question -the jurisdiction of the justice, but we are of the opinion that that was not the result of the filing of this paper. If it had been, any paper that might properly have been filed at that time before the justice in the case, if it had invoked any action that it would have been proper for the justice to take after judgment in the case, then we would hold otherwise; as, for instance, where a person within the statutory period gives notice of an appeal, or enters into bonds for the stay of execution, he -can not thereafter question the jurisdiction -of the magistrate. We think such action as was taken here after judgment -does not amount to an appearance.

We are of opinion that the judgment of the court of common pleas was right, and it will be affirmed.


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    SPEED OF RAILWAY TRAINS AT DANGEROUS CROSSINGS WITHIN MUNICIPAL LIMITS.
    [Circuit Court of Lucas County.]
    The Lake Shore & Michigan Southern Railway Company v. Robert Johnston.
    Decided, June 13, 1903.

      Negligence — At Railway Grossing — Speed of Train At, Within Municipal Limits — Ordinance Limiting Speed — Absence of Watchman or Gates —Tracks Hidden from View — One in Peril Without Fault — Wrong Choice Between Hazards.

    1. An allegation that a railroad company was guilty of negligence in not maintaining a gate or keeping a watchman at the crossing where the accident complained of occurred is proper, and-should not be stricken from the petition.
    2. A railroad company may be held by the verdict of a jury and by law to have been guilty of negligence as to the running of a train over a street crossing, if the crossing .is within the limits of a city or village or suburb, where a view of the tracks is in a measure obstructed by houses, and there are no gates at the crossing, and no watchman to warn persons attempting to cross of an approaching train and the speed of the train was, as in the case under consideration, more than thirty miles an hour.
    3. The fact that a train was running at a higher rate of speed than is permitted by a municipal ordinance is a circumstance which may be taken into consideration by a jury in determining the question of alleged negligence in the running of said train.
    4. J., while driving along a street after dark, came to a point where six different railway tracks belonging to two different roads crossed the street at an angle, and were partially hidden by buildings, and there was no watchman. Different persons in the vicinity shouted at him, and some one cried “hurry up.” Acting on the impulse of the moment and under a miscalculation as to which track the train, was on, he attempted to reach a safe place between the tracks, his horse went forward farther than he designed, and was struck, and horse, vehicle and driver came into collision with the train. Held: That J. was not guilty of contributory negligence.
    Parker, J.; Hull, J., concurs; Haynes, J., dissent's.
   This proceeding is brought to obtain the reversal of a judgment of the court of common pleas of this county. The action in the court below was by Johnston against the railway company, to recover for personal injuries and loss of property in consequence of an accident — -a collision — happening to himself and horse and vehicle by a train on the railway company’s track, in passing through this city, which accident he says was due to the negligence of the railway company. The accident happened upon the 31st of July, 1901, at about 8:15 or 8:20 p. m., standard time, at a crossing of the railroad over Central avenue, which is a street running east and west in tire westerly part of the city. The Lake Shore & Michigan Southern Railroad and the Michigan Central Railroad at that place run parallel to one another, in a northeasterly and southwesterly direction, the Lake Shore road at that point having one main track lying westerly of the tracks of the Michigan Central. The Michigan Central Road at that point has two parallel tracks— main tracks — crossing oyer the street, the westerly of the Michigan Central trades lying about sixty feet easterly from the Lake Shore track, and the easterly of the Michigan Central tracks lying perhaps seven or eight feet easterly from its westerly track. There is also lying easterly of these tracks a distance of perhaps seven or eight feet, 'another track of the Michigan Central Railroad extending from the north side of Central avenue and parallel with the other tracks, a distance of perhaps a thousand feet — called a spur track — which does not cross the street.

Johnston on the occasion of this accident was passing westward upon the street, riding in an open vehicle — a light wagon, one witness called it a Democrat' wagon — driving one horse, being alone in the wagon and with no load excepting a buggy tongue, which was placed in the body of the wagon arid projected out behind for some distance. He was a man of about sixty-three years of age. His horse was a steady, tractable animal. It was in the dusk of the evening. There was some controversy as to just bow dark it was, but it was dusk.

Before proceeding further with a statement of the facts, I should mention that the trial in the court below resulted in a verdict in favor of Mr. Johnston for $4,000, and a judgment upon this verdict. At the close of the plaintiff’s testimony, a motion was made to take the case from the jury. This motion was overruled. This motion was renewed after the testimony was all in on both sides, and was again overruled, and upon each occasion the railroad company excepted. A motion for a new trial upon various grounds Was made, and it was also' overruled. There was also a motion on the part of the railroad company for a verdict on the answers to certain special interrogatories, notwithstanding the general verdict against the company, and this motion was overruled. Error is predicated upon this action of the court, and it is urged that t'he verdict was against the weight of the evidence. I shall refer to and discuss that proposition later, and it may be unnecessary to consider a variety of other questions presented.

The railroad train which came into collision with Mr. Johnston and his rig was proceeding from the northeast' to the southwest over the trades of the Lake Shore road. I do not state the points of the compass exactly; and perhaps it would -be more accurate to say that these various lines of track ran in a direction east of north and west of south, but they cross the street at an angle somewhat acute — not at a right angle.

It is charged in the petition that the railroad company was negligent and its servants were negligent in that the train was running at a higher rate of speed than was consistent with the safety and rights of t'he public — those having a right to use the street at this point; also that the defendant was negligent in that there was no headlight upon the locomotive and -that no bell was-rung or whistle blown, or other signal or warning given to 'apprise Mr. Johnston of t'he approach of this train, and it is averred that the city of Toledo had before this time passed an ordinance requiring-that railroad trains passing over streets in the city should not be run at a higher rate than six miles an hour, nor at a lower rate of speed than three miles an hour. The testimony of witnesses shows that on this occasion this train was running at a rate of speed in excess of thirty miles per hour and perhaps 'as high as forty or forty-five miles per hour. It was conceded upon the trial by the railroad company that it was running at a rate of thirty miles an hour.

As to the other negligence 'alleged — 'negligence other than the high rate of speed — it is only necessary to say that the answers to the special interrogatories take those questions out of the ease, the jury having found specifically that the headlight' was burning, that, the bell was rung, and that a crossing signal was given. I should mention also that it was charged that the company was negligent in sounding the whistle, in a very loud and violent way, just as the locomotive reached the crossing, and it is admitted and established by the evidence that the whistle was sounded at that point, or about that point, as a signal for a station — the Wagon Works station— about half or three-quarters of a mile farther to the southwest.

The case has been one of considerable doubt and difficulty to 'this, court and we have not been able to arrive at unanimity The opinion which I shall announce will be that of a majority of the members of the court, Judge Haynes dissenting from our conclusions.

That the railroad company was negligent' in maintaining this.' high rate of speed at this point, does not seem to us to be very seriously controverted; to state it fairly, I will say that it does not-seem to us that it can- be successfully controverted. While it has been held by our Supreme Court in the case of Railroad Co. v. Kistler, 66 Ohio St., 326, that a railroad company may run its trains, at any speed it may desire, no matter how high, in order to accomplish the purposes of a railroad, in the open country where there are no circumstances to make if necessary for it to run at a low rate of speed or to slow up; yet it is unquestionably the law, we think, that through cities and villages and the suburbs of cities where it is-thickly settled — where there are houses and other obstructions to. those p'assing along the highway, so that they can not readily observe approaching trains at places where railroad trains are required to pass over the highway crossings; where there are no gates, as was the case- here; where there are no watchmen stationed to warn travelers upon the highway, as was the case here at this hour of the day — a railroad company may be deemed and held .by the ver-. diet of a jury and by the law to be guilty of negligence if it maintains as. high a rate of speed as thirty miles an hour. This subject is discussed in Vol. II of Shearman & Redfield on the Law of Negligence, Section 460, and the following sections, and we think the result of the discussion there and the authorities cited sustain what ■ we have just announced.

In the 144 U. S., at page 408 (Grand Trunk Ry. Co. v. Ives), it is said in the syllabus that:

“The running of a railroad train -within the limits of a city at a greater rate of speed than is permitted by the city ordinances, is a circumstance from which negligence may be inferred in case an injury is inflicted on a person by the train.
“Whether ordinary care or reasonable prudence requires a railroad company to keep a flagman stationed at a crossing that is especially dangerous, is a question of fact for a jury; although in some cases it has been held to be a question of law for the court.”

In the course of the opinion by Justice Lamar, this is said:

“It is further urged that the court erred in giving to the jury the following instruction:
“ Tf you find from the evidence in this' case that the railroad, train which killed Elijah Smith was moving at a rate of speed forbidden by tbe city ordinances, * * * the l’aw authorizes you- to infer negligence on the part of the railroad company as one of the facts established by the proof.”
“It is said that no evidence was introduced with respect to an ordinance- of the city regulating the speed of railway trains. Counsel, in this matter, labor under a misapprehension.. The bill of exceptions- states that ‘the ordinance of the city of Detroit prohibiting the running of railroad trains within the limits of the city, at a greater rate of speed than six miles per hour,’ was admitted in evidence, over the defendant’s objections. As there was a great deal of evidence introduced on-behalf of the plaintiff that the train which killed Mr. Smith was running at a much more rapid rate than the ordinance permitted, the instruction quoted was applicable, and, under tbe authorities, was as favorable to the defendant-as it had the right' to demand. Indeed it has beam held- in many • cases that the running of railroad trains within the limits, o-f a city at a rate of speed greater than is allowed by an ordinance of such city is negligence per se.” (Citing Mississippi and Virginia cases.)
“But perhaps the better and more generally accepted rule is that such an act on the part of the railroad company is always to be considered by tbe jury as at least a circumstance from which negligence may be inferred in determining whether the company was or was not guilty' of negligence.” (Citing cases from Nebraska, Illinois, Iowa, Georgia and Louisiana.)

And this latter proposition we understand to be the law of Ohio— that is t'o say, that the running of a train at a greater rate of speed than- is -provided- for -by. ordinance is not proof of. negligence, but the fact that the train was running at a higher rate of speed than provided by law, may be taken into consideration by the jury on the question of negligence.

In a case in 7 Ohio Decisions, at page 450 (C., C. & I. Ry. Co. v. Louis Reis), decided by the Circuit Court of Hamilton County, the opinion was rendered by Judge Smith, and I read from that case because what is said is applicable to certain facts and proceedings in this case, to which I will make further reference:

“There is another matter to which we deem it proper to call attention, although it is not involved in the case as it now stands. It appears from the papers and transcript that the plaintiff, in his original petition, set out another ground of negligence on the part of the defendant, in connection with those already referred to, the substance -of which -was that the railroad company had caused this crossing to be a dangerous one by reason of the excavations made in the- road and track, an-d the obstructions on the bank which prevented a view of approaching trains, and that the defendant had negligently and carelessly omitted to place and maintain gates or guards there, or have a flagman at the crossing to warn travelers of approaching trains. Those 'allegations as to negligence of the company in failing to have gates or a flagman there were on motion stricken out by the court against the exception of the plaintiff.
“We think this should not have -been done; that the plaintiff was entitled to have these allegations remain in the petition, and to establish them if he could do so. While it is true that a railroad company is not as a rule, in the absence of a statute requiring it, bound to maintain gates or keep a watchman at a crossing, yet there are cases -where the obligation is imposed upon them to adopt these, or -another safe mode to protect travelers, and if it could be shown that this was such a crossing, and that there had been a failure on the part of the company to make such provision, that would be negligence, and they might be liable for injuries caused by such failure.”

In the case at bar, the original petition contained an -'averment that the city had passed an ordinance requiring a flagman at this point, and perhaps -a gate also, and that the action of the railroad-company was negligent and in violation of this ordinance in not furnishing a flagman at this time and place and in not providing gates. That, on motion of counsel for the railroad company, was stricken from the original petition.' We are inclined to think that perhaps that action on the part of the court was correct, because of the immateriality of the averment that the city had made that provision, but we think that the substance of. the charge, i. e., that the railroad company had been negligent' in not providing gates or watchmen at this point, should have been preserved in the petition, if it could have been preserved 'as the petition then stood by striking out a part of the averment; or, if not, that it ought to have been restored in some way to the petition. The case would have been in a more satisfactory shape for the court if this averment had been in the petition. Nevertheless, if there was negligence in either of these particulars, the absence of gates or watchman was concomitant with the negligence charged; and perhaps it is immaterial whether it is charged that the company was negligent in not maintaining a gate or in not providing a watchman, in view of the fact that the train was 'run at'th'is'high'rate' of'speed, and'the' négligence charged is the running of the train at a high rate of speed over a crossing in a city where there was no watchman and no gate. It appears from the evidence that there was no watchman there and no gate.

In The New York, Chicago & St. Louis Railroad Company v. Swartout, 6 Ohio Circuit Court Decisions, p. 768, in the syllabus, it is said that—

“A railroad company'may, because of the speed and management of its trains, make it necessary or incumbent upon itself to place a flagman or bars at the crossing of its tracks by a public highway.”

And that is the gist of what is said upon the subject in the remarks of Judge Frazier in the course of his opinion.

In the case of Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. M. E. Richardson, 10 Ohio Circuit Court Decisions, p. 326, it is said, in the syllabus, that:

“The failure to maintain gates or flagman at crossings outside a municipality, is not', as a matter of law, negligence; but whether the circumstances of a particular case, or the situation at a particular crossing, required, in the exercise of ordinary care, gates or flagmen is a question for the jury.”

The opinion in that case was by Judge Hull, of this bench, sitting in the Circuit' Court of Cuyahoga County.

In Schweinfurth, Admr., v. The C., C., C. & St. L. R. Co., 60 Ohio State, 215, the fourth clause of the syllabus reads:

“In 'am action against a railroad company for wrongfully causing the death of a person by the running of a train of its cars at an unusual and dangerous rate of speed, without proper signals, at' a crossing over a public and much traveled street in a city, an instruction that if the deceased was misled by the absence of signals or warning, and led to believe, as a reasonable person, that he could cross the tracks in safety, and while attempting to do so, without fault or negligence on his part, he was struck and killed by the running train, solely on account of the negligence of the servants in charge, his administrator would be entitled to recover, is not error.”

And, reading from the opinion, commencing at the bottom of page 225:

“The following is one of the instructions, the giving of which was made a ground for reversing the judgment of the trial court: cIf the jury find from the evidence, that the defendant’s servants in charge of the train that killed said Robert J. Blum, gave signals by whistling once, and no more, at such distance, if it exceeded 100 rods from Greenwood street, that said Robert J. Blum would naturally think that he could safely - cross before the train arrived at Greenwood street if he heard such whistle, and that he did hear it, and should further find that no bell was rung, and that said train was going at a greater rate of speed than -men of ordinary care and prudence in like employment would have run it under like circumstances -and conditions, and that said Robert J. Blum, as a reasonable man, was thereby deceived and led to believe that he could cross the tracks of said defendant’s railroad in safety, and that if attempting under these circumstances t'o cross said tracks without fault or negligence on his part, he was, on account of carelessness upon the part of th-e servants of said defendant in operating said train -at an unusual and dangerous rate of speed, struck and killed, then plaintiff would be entitled to recover, if such carelessness was the sole cause of his injuries.’
“The objection urged to the 'Charge is, that it makes the defendant liable for the mistake or miscalculation of the person injured. But that, we think, is not its effect. It does no more than hold the defendant responsible for the proximate consequences resulting from the position in which the deceased was induced to place himself by its negligent omission to give the required signals of the approaching train where they might be reasonably expected by persons about to use the crossing, and upon the absence of which they might reasonably rely as an assurance that it' was safe to cross over; and, from the running of the train without such signals at an unusual and forbidden pate of speed, whereby persons who otherwise might cross in safety would be placed in a position of extraordinary peril. To give the instruction applicable to the case, it was necessary for the jury to find, and they were so told, the existence of the facts thus calculated to mislead the deceased, and further that’ he exercised the care of a person of ordinary prudence in forming his conclusion that he could safely cross under the circumstances, -and that the injury he received was caused wholly by the negligent acts and omissions of the defendant. If the facts stated were established t’o 'the satisfaction of the jury, the deceased was not guilty of contributory negligence which precluded a recovery by his administrator.”

Here it is claimed by Mr. Johnston that he was in a measure misled or deceived, or given a feeling of confidence or security, by reliance upon some safeguard in the way of a watchman or otherwise at the crossing, and, therefore, what I have read on the subject of reliance by one upon proper care being observed by another as an excuse for not exercising extraordinary vigilance, is inapplicable to this case.

Now, to proceed further with a statement of the facts. According to the evidence, Mr. Johnston was,driving west along Central avenue and came to, or at least his horse was upon the easterly track of the Michigan Central Railroad before he became apprised of the approach of the train. He was then warned by several persons of the approach of the train. Exactly what the warning was— what' was said and done by way of warning — it is somewhat difficult to determine. One witness, Mr. Gettings, stood about twenty feet easterly from the most eastern track of the Michigan Central on the south side of Central avenue. He says that he called out to Mr. Johnston to look out, that the train was coming, or in substance something like that; and that two other men who stood, it appears, somewhat (northwesterly from him — I should think from a consideration of 'all their statements perhaps upon the tracks of the Michigan Central — gave warning to him about the same time, but the only warning Mr. Gettings heard from them was by way of a whistle. It 'appears from the testimony of one of these, Mr. Kessler, that he also called out something about' the approaching train. The plaintiff admits that he received wanning of the approaching train at about that point, but he says that with the warning came the injunction or cry to hurry up, and that he was influenced somewhat by that as well as by his situation.

Now the first question presented is, whether the plaintiff was negligent in getting himself into that position. It would seem that by proceeding to that point he had placed himself in a position that was somewhat perilous, that it' was a situation that was likely to cause him trouble and fright when apprised of the proximity of a train, and perhaps prevent him from exercising calm judgment and deliberation as to what he should do. The testimony shows that there were buildings upon both sides of these tracks both to the east amid to the west, as well as to the north and the south of Central avenue; that in the direction from which this train was approaching the view was obstructed by buildings and by a coal-chute which came up very close to this spur-track (and perhaps by some cars standing upon the storage track, but about that we are not very certain) so that a person could not see down these tracks amid observe the approach of trains to the northeast until he came very close to the track. We gather this from tire evidence in the record. We also find from the record that the jury viewed the premises, and we deemed ourselves at liberty to do the same, ■and we discovered that condition by viewing the premises as well as from the testimony of the witnesses. In that respect the crossing is somewhat difficult and dangerous. The testimony of witnesses shows that Mr. Johnston was proceeding slowly and his vehicle was not making a great deal of noise, amd he says that he was looking -and listening for trains. It is not very plain how much looking and listening he may have done before he received this warning. The testimony is somewhat cloudy upon that point'. He testifies that he was looking and listening and could see ¡nothing and heard nothing. That he did look and listen after he received the warning, his testimony is qnite clear. He says that he knew that the railroad company had a watchman at that crossing daytimes. He was not aware of the fact that the watchman (as the evidence shows) went on’ at six o’clock in the morning and went oif at six o’clock in the evening. He supposed that he was there at this time in the evening and seems to have placed some reliance upon that — the fact that the watchman did not appear upon the tracks to warn him or signal him that' there was a train approaching — and he proceeded perhaps with more confidence and perhaps was not so prudent in looking and listening as he would have been had he not supposed there would he a watchman to give him such warning; 'and we can not say that under the circumstances Mr. Johnston was negligent in thus proceeding, in view of what we deem to have been the duty of the railroad company 'at that place and at that time and what a traveler upon the highway might rely upon their doing as an act of prudence and care towards the traveling public. Now he approached to that point and then received warning of the oncoming train. The substance of his testimony is that he then took instant thought as to his position and as to where the train might be, and concluded that if it was upon the Michigan Central trades he could get across those tracks and that that was the best way to proceed— to hurry his horse across — as his horse was already very near the track; and that if the train was upon the Lake Shore track,' he would reach this spot of sixty feet between the tracks of the Michigan Central and the tracks of the Lake Shore and pause there — he does not say until the train should pass, but that is apparently what he means, that he would reach that point and stop there as a place of safety; and acting upon this impulse of tire moment, this understanding of the probable situation, this instant thought and calculation, he hurried his horse forward, and he says that immediately upon getting across the Michigan Central tracks he stopped his horse. The fact is that that train came along upon the Lake Shore track, a locomotive and a baggage ear and perhaps an express car passed by him without touching his horse or coming in contact with him — the train consisting of some five or six passenger cars besides — and one of the other cars seems to have come in contact' with Ms horse, -and horse, vehicle and rid'er were all drawn to the south across the street and thrown upon the ground with violence, and the vehicle was demolished and the horse was injured so that it had had to be shot afterwards, and Mr. Johnston received personal injury. He says that in crossing over the Michigan Central track he stopped in that space of sixty feet between the tracks of the two- railroads, and thinks he stopped about the center of it. It is clear that he is mistaken) about that; his horse proceeded further toward the west than he supposed or intended. That he did stop Ms horse and that he did not attempt to cross the Lake Shore track ahead of the train is found by the jury, and we think that finding-is sustained by the evidence. Mr. Johnston testifies that he stopped; Mr. Kessler testifies that he stopped, .amid Mr. Gettings testifies that he stopped, and nobody testifies that he diid not stop. The fireman upon the locomotive testifies that just as the locomotive was crossing over Central -avenue he saw this rig approaching; it was then witMn twenty or -thirty feet of the track and appeared to he moving towards the track, bnt it is quite evident that the point at which Mr. Johnston stopped Ms horse was nearer to -the track than -twenty or thirty feet. Now, as I have said, the locomotive at that point -gave a loud and somewhat prolonged whistle for the station stop at Wagon Works. Tliis is a circumstance in the case. We are not’ prepared to say that it was negligence on the part of the railroad -company to do it, but. it was ■one of the concomitant facts and circumstances and it perhaps, amid probably had, some influence on the horse. Mr. Johnston testifies that -after he stopped the horse he thinks it moved forward. On page 59 of the record he testifies that the horse moved after he stopped Mm between the tracks, but this movement does not .seem -to have been designed by Mr. Johnston, it' was not consciously intended or voluntarily caused, but it was something which occurred in spite of Mm in the excitement of the moment, and was consequent upon the peril o-f the situation, and we therefore think it can not be said that he negligently caused) it, or that he was negligent because of a miscalculation as to the point at which he should stop, if the accident was due to such miscalculation, or that he was careless or negligent because of his failure to control the movements of his horse when it got into that small space between the tracks; which lack of control probably caused the calamity. It is apparent that if Mr. Johnston had stopped where he was when warned of the approach of the train, the accident would not have happened. It is apparent that if he had turned back it would not have happened. But, as I say, he acted upon the impulse of the moment, and made a miscalculation and wrong decision in going forward instead of turning back. It seems to us that he can not be held to have been careless in that he did not instantly see the approaching train, and observe that it was upon the Lake Shore track, and thereupon haul up his horse and prevent it from going near to that track. He says he looked, and looked intently and looked carefully, and that he did not see it. I have already given the direction of these tracks 'and these streets where they cross one another. If Mr. Johnston simply looked to the right and to the left — as he probably did — upon the theory or supposition that these were right-angled crossings, he would not have seen this train. In order to see the approaching train it would have been necessary for him, to turn his head somewhat and look back and toward the northeast. The testimony of Mr. Johnston shows that he was not very familiar with this crossing; he had crossed there only occasionally. He lived upon the west side of these railroads and somewhat to the south of where this accident occurred. He was in the habit' of going occasionally to West Toledo, which required him to pass to the north of this point, and in crossing over the railroad tracks he usually crossed, as he says, at Monroe street. We find upon consulting the map that at Monroe street the wagon road crosses the railroad at right angles, so that one to observe the approach of a train would naturally turn to look to the right' and to the left, and would have the whole view of the tracks; whereas 'at this point where the accident took place, one would be required, approaching as he was, to see the train approach as this train was approaching, to look somewhat to his rear, a fact of which Mr. Johnston seems to have been unaware.

That it was dusk amid that the approach of the train was not readily observable is apparent from the testimony of Mr. Kessler and Mr. Gettings. At the time they gave this warning, they did not see the train approaching, but they heard it. For some reason the approach of the train was not apparent to them and they were not made aware of it except by its noise, and they believe they were not warned of its approach by the sound of any whistle, or otherwise than by the roaring of the train; so that it can not be said that the ease is like that of one approaching a track in broad daylight without 'hindrance to his seeing a train approaching and who will not be heard to say that he did not see it, when, by the opening of his eyes and looking in the ordinary way, it would be evident to him. It seems to us, however, after looking over the situation, that if Mr. Johnston had turned and seen the approaching headlight, unless he had made a swift and accurate calculation as to the angle of these roads, he could not have determined which one of the tracks the train was approaching on and he might have made a miscalculation there just as he did make a miscalculation in driving forward. It must be borne in mind that Mr. Johnston was required — not knowing from which direction the train was coming — .to look both to the southwest and to the northeast and to observe six tracks, that is to say, three in each direction. He was upon the tracks of the Michigan Central when he received this warning, and in that situation, of apparent peril, calling for instant action, he hurried forward, and the principle laid down in Pennsylvania Railroad Company v. Snyder, 55 Ohio St., 342, is, we think, applicable to a situation like this. There it is said that—

“When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; nor can it be said that, as matter of law, he is guilty of contributory negligence because he fails to make the most judicious choice between hazards presented, or would have escaped injury if he had chosen differently. The question im such ease is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury.”

And, in illustration of that principle, in the opinion, a great many cases are cited. We are all familiar with the common case of a passenger, when a collision is iminent jumping from a train and injuring himself, which will not he regarded as a negligent act nndler such circumstances, although he might have remained upon the train and escaped injury.

The conclusion of a majority of the court is, therefore, upon this record, that the verdict' as to the negligence of the railroad company and as to the alleged contributory negligence of the plaintiff below is not against the manifest weight of the evidence, and that unless the answers to the special interrogatories are so contradictory to or irreconcilable with the general verdict that it can not stand, this judgment should be affirmed.

I will spend but a moment upon that. Special interrogatories were submitted by both the railroad company and the plaintiff below. The first interrogatory submitted by the railroad company is:

“As and when the plaintiff, Johnston, came upon or near to the east and west track of the Michigan Central railroad, was he warned and notified of the approaching passenger train in time so that if he had heeded it he could have stopped his horse and avoided coming in contact with it ?”

And the jury answered that “No.”

Now that answer is hard to reconcile with the facts in the case, though, if it had been answered “Yes,” it would not have been conclusive of the rights of the parties here. It seems to us that the answer is clearly wrong under the evidence, unless the jury meant that the plaintiff could not heed the warning and at the same time “hurry up” — considering that as a part of the warning — that is to say, that the warning was that the train was approaching and that it would be necessary for him to hurry up; that he could not do that 'and also stop in time to avoid the collision. The jury seem to have concluded that he tried to accomplish all three of these things and failed in the last. That they did not mean to say that he could not have stopped in time had he omitted to hurry np is evident from the answers to the third and fourth interrogatories, the third being:

King & Tracy and Frank IS. Geer, for plaintiff in error.

E. D. Potter, for defendant in error.

“As amid when the plaintiff eamre up to the main or west track of the Michigan Central Railroad could he then by looking to the north have seen the approaching train in time to have stopped and avoided coming in contact with it?”

And the answer is “Yes.”

The fourth interrogatory is this:

“As and when the plaintiff -came up to the main or west track of the Michigan Central track and after he had been notified and warned of the approaching train, could he then have stopped his horse and avoided coming in contact with the approaching train?”

And the answer is “Yes.”

It is evident that he could have done so, but that does not answer the question submitted to and passed upon by tire jury: Whether, in the exercise of reasonable care, he was bound to take such action; or, whether, in omitting to do so, he exercised reasonable care under all the circumstances, considering Ms situation, the peril etc.? As I have already said, the other answers to the special interrogatories eliminate from the case all charges of negligence except that of the high rate of speed and perhaps that of blowing the whistle immediately at the crossing. The answers- to the interrogatories submitted by the plaintiff are ah clear and consistent' with -the general verdict and require no special comment.

The judgment of -the court of common pleas will be affirmed.