Railway v. Sivey.

of Albert Sivey approached and ran over the railroad crossing, is negligence, etc."

The placing of the gong at that crossing was a voluntary matter upon the part of the railroad company. It was not required by any statute, or the railway commissioner, of Ohio to put it there, or to keep it in repair. Hence the above positive instruction that a failure to keep same repaired amounted to negligence, was wrong. It was proper only to consider the condition of the gong with reference to the company's duty to exercise ordinary care under all the circumstances.

Special instruction 8 given at request of plaintiff below, viz. : "It is admitted in the case that Eleventh avenue up to defendant's right of way was, at the time of the killing of Albert Sivey, a duly dedicated, appropriated, improved and traveled street of the city of Columbus and I charge you that the fact, if you find it to be a fact, that the vicinity of said avenue is sparsely inhabited did not warrant or authorize the defendant to run its trains across said crossing as it might over a country road crossing, but that the speed of its trains must be that of reasonable safety having regard to the nature, situation and use of said crossing."

This implies, if it does not declare, that the highway at the crossing was a city street and not a country road, and not governed by the same rules of law as the latter; whereas the evidence indisputably shows that the crossing in question was and is outside of the city limits; and is, in law, a country road, although called an avenue.

There was also error, we think, in refusing to give charge No. 16 before argument as requested by defendant below, viz.:

"If you should find from the evidence that the obstructions at and about the crossing and the noises of the moving conveyance in which the decedent was riding were such that the decedent could not without stopping, hear the approach of a train from the north; and that the decedent knew, or in the exercise of ordinary care on his part ought to have known, that such were the conditions; and you further find that if he had stopped and listened first before driving onto the railway track, he would have heard the train which struck him and avoided the collision; and if you also find that the decedent did not so stop and listen, but drove onto the track without taking this precaution, and was killed, then the decedent was guilty of contributory negligence, and the plaintiff cannot recover in this action, but your verdict should be for the defendant."

The difficulty of hearing a train, by reason of intervening objects calculated to break the sound, and the noise of decedent's wagon on

Franklin County.

the paved street made it proper we think, to submit to the jury the Sivey in the exercise of ordinary care should Wheeling & L. E. Ry. v. Suhrwiar, 12 Circ.

question whether or not have stopped to listen. Dec. 809 (22 R. 560).

Even upon the theory of plaintiff below that it is the duty of the railway company to keep the gong in order nevertheless the traveler may in view of other noises be bound, in the exercise or ordinary care, to stop and listen for the ringing of the gong.

Again in the general charge of the court at the bottom of page 334 we find this language:

"Would a person of ordinary care be led or induced to injury by reason of the location of this bell, and by reason of the fact that it did not ring, and relying upon the fact that it would ring in case a train was coming?"

This assumed, as proven or admitted, the fact that the bell did not ring; whereas that was a question in dispute.

On page 355 in the general charge we observe this language: "If you should find that said company had failed to adopt sufficient safe guards or warnings to prevent an accident to the person using ordinary care, etc."

This would impose upon the company a duty much in excess of ordinary care, viz.: an absolute assurance against accident.

We think also the instruction warning the jury that its special findings must be consistent with its general verdict or the latter would be set aside, was vicious if not erroneous. "The true finding of the issues submitted to them should not be disturbed or qualified by such a consideration;" just as it is wrong to instruct a jury that a verdict for a certain amount is necessary to carry costs. Clev, C. & C. Ry. v. Bartram, 11 Ohio St. 457.

The foregoing errors we think were prejudicial and by reason thereof the judgment of the common pleas court should be reversed, and a new trial granted.

The remaining assignments of error we think are not well taken.
Wilson and Sullivan, JJ., concur.

Swift v. Baking Co.

CORPORATIONS-CONSTITUTIONAL LAW-STOCKHOLDER'S

LIABILITY.

[Mahoning (7th) Circuit Court, March Term, 1905.]

Cook, Burrows and Laubie, JJ.

SWIFT & Co. v. YOUNGSTOWN BAKING CO. ET al.

ACT OF THE GENERAL ASSEMBLY OF APRIL 29, 1902, AMENDING AND REPEALING ORIGINAL SEC. 3258 IS UNCONSTITUTIONAL.

The act of the general assembly of April 29, 1902, amending and repealing Lan. R. L. 5202 (R. S. 3258), fixing the liability of stockholders of a corporation, so far as it amends and repeals original Sec. 3258, is in violation of Sec. 3, Art. 13 of the constitution of the state.

APPEAL from Mahoning common pleas court.

W. W. Zimmerman, for plaintiff :

The amendment of November, 1903, to the constitution, does not terminate actions for stockholder's liability which accrued previous to its adoption or proclamation. Brown v. Hitchcock, 36 Ohio St. 667; Kulp v. Fleming, 65 Ohio St. 321 [62 N. E. Rep. 334; 87 Am. St. Rep. 611]; Wick Nat. Bank v. Bank, 62 Ohio St. 446 [57 N. E. Rep. 320; 78 Am. St. Rep. 734]; Edwards v. Kearzey, 96 U. S. 595 [24 L. Ed. 793]; Mississippi & M. Ry. v. McClure, 77 U. S. (10 Wall.) 515 [19 L. Ed. 997].

The effort of the legislature by the acts of April, 1902 (95 O. L. 312), and April, 1904 (97 O. L. 390), in that part of the acts referring to an equal and ratable liability, was, in most of cases, to establish a less liability than the constitutional liability and these acts are therefor unconstitutional. Wright v. McCormack, 17 Ohio St. 86; Umsted v. Buskirk, 17 Ohio St. 113; Brown v. Hitchcock, 36 Ohio St. 677; Section 28, Art. 2 Ohio Const.

If the act of April, 1902 (95 O. L. 312), and that of April, 1904 (97 O. L. 390), are unconstitutional, the original Lan. R. L. 5202 (R. S. 3258), which these acts sought to amend, is still in force. State v. Thrall, 59 Ohio St. 368 [52 N. E. Rep. 785]; State v. Buckley, 60 Ohio St. 273 [54 N. E. Rep. 272].

Liability of defendant, Ramsey. Section 57i Bankruptcy act of 1898; Collier, Bankruptcy 379; Harpold v. Stobart, 46 Ohio St. 397 [21 N. E. Rep. 637; 15 Am. St. Rep. 618]; Herrick v. Wardwell, 58 Ohio St. 294 [50 N. E. Rep. 903].

Reserved power. McGowan v. McDonald, 111 Cal. 57 [43 Pac. Rep. 418; 52 Am. St. Rep. 149]; Sleeper v. Goodwin, 67 Wis. 577 [31

Mahoning County.

N. W. Rep. 335]; Gibson, In re, 21 N. Y. 9; Sherman v. Smith, 66 U. S. (1 Black) 587 [17 L. Ed. 163]; Weidenger v. Spruance, 101 Ill. 278; Ireland v. Turnpike Co. 19 Ohio St. 369.

W. A. Maline & G. J. Carew, Norris, Jackson & Rose, D. F. Griffith, T. McNamara, Jr., S. M. Thompson, T. W. Sanderson and Anderson & Henderson, for defendants.

C. A. Manchester, for defendant, Ramsey:

Constitutionality of acts in question. Kelley v. State, 6 Ohio St. 269; State v. Sinks, 42 Ohio St. 345; Gager v. Prout, 48 Ohio St. 89 [26 N. E. Rep. 1013]; State v. Jones, 66 Ohio St. 453 [64 N. E. Rep. 424; 90 Am. St. Rep. 592]; Bronson v. Schneider, 49 Ohio St. 438 [33 N. E. Rep. 233]; Younglove v. Lime Co. 49 Ohio St. 663 [33 N. E. Rep. 234]; Sinking Fund Cases, 99 U. S. 700 [25 L. Ed. 496]; 26 Am. & Eng. Enc. Law (2 ed.) 641; 3 Thompson, Corporations Sec. 3221; Chouteau Spring Co. v. Harris, 20 Mo. 382; Middletown Bank v. Magill, 5 Conn. 28; Cole v. Ryan, 52 Barb. 168; Cowles v. Cromwell, 25 Barb. 413; Miller v. Insurance Co. 50 Mo. 55; McClaren v. Franciscus, 43 Mo. 452; Johnson v. Underhill, 52 N. Y. 203; Grissell v. Bristowe, L. R. 3 C. P. 112; Huddersfield Canal Co. v. Buckley, 7 Term 36; Croxton's Case, 1 De G. M. & G. 600; Sutton's Case, 3 De G. J. & S. 262; Mayhew's Case, 5 De G. M. & G. 837; Allen v. Railway, 11 Ala. 437; Johnson v. Laflin, 5 Dill 65 [13 Fed. Cas. 758]; affirmed, Johnston v. Laflin, 103 U. S. 800 [26 L. Ed. 532]; Jackson v. Manufacturing & M. Co. 69 Tenn. (1 Lea.) 210; Merrimac Min. Co. v. Levy, 54 Pa. St. 227 [93 Am. Dec. 697]; Billings v. Robinson, 94 N. Y. 415; Savage v. Putnam, 32 Barb. (N. Y.) 420; Tucker v. Gilman, 121 N. Y. 189 [24 N. E. Rep. 302]; Billings v. Robinson, 28 Hun (N. Y.) 122; Stewart v. Printing & Pub. Co. 1 Wash. St. 521 [20 Pac. Rep. 605]; Mason v. Alexander, 44 Ohio St. 318 [7 N. E. Rep. 435]; Harpold v. Stobart, 46 Ohio St. 397 [21 N. E. Rep. 637; 15 Am. St. Rep. 618]; Cin. H. & D. Ry. v. Hedges, 63 Ohio St. 339 [58 N. E. Rep. 804]; Norwood (Vil.) v. Wooley, 4 Circ. Dec. 274 (9 R. 195); State v. Roosa, 11 Ohio St. 16; The Queen, 93 Fed. Rep. 834; Wilder v. Campbell, 4 Idaho 695 [43 Pac. Rep. 677]; Young v. Jones, 180 Ill. 216 [54 N. E. Rep. 235], reversing 78 Ill. App. 78; Kent v. Bentley, 6 Circ. Dec. 457 (10 R. 132); Voting Laws, In re, 12 R. I. 586; Fordyce v. DuBose, 87 Tex. 78 [26 S. W. Rep. 1050]; State v. Bradshaw, 35 Fla. 313 [17 So. Rep. 642]; Walton v. Fudge, 63 Mo. App. 52; Walton v. Fudge, 1 Mo. App. 620; Kirkwood v. Hoxie, 95 Mich. 62 [54 N. W. Rep. 720; 35 Am. St. Rep. 549]; Reid v. New York, 139 N. Y. 534 [34 N. E. Rep. 1102], affirming Reid v. New York, 68 Hun 110 [22 N. Y. Supp. 623].

Swift v. Baking Co.

The constitutional amendment, in taking away liability as to existing debts, does not impair the obligation of contract for the reason that in the constitution of 1851, being the instrument in which double liability was created, the right was saved to alter or repeal the laws relating to corporations, as well as to amend the constitution in any respect, at any time. 26 Am. & Eng. Enc. Law (2 ed.) 1019; Sherman v. Smith, 66 U. S. (1 Black) 587 [17 L. Ed. 163].

Extent of Ramsey's liability. Perry v. Beardslee, 10 Mo. 568; Thayer v. Tool Co. 70 Mass. (4 Gray) 75; Potter v. Machine Co. 127 Mass. 592 [34 Am. Rep. 428]; McDowall v. Sheehan, 129 N. Y. 200 [29 N. E. Rep. 299]; Harpold v. Stobart, 46 Ohio St. 397 [21 N. E. Rep. 637; 15 Am. St. Rep. 618]; 3 Thompson, Corporations Sec. 3226; Herrick v. Wardwell, 58 Ohio St. 294 [50 N. E. Rep. 9031

COOK, J.

This is an action to enforce the statutory liability of a stockholder of the Youngstown Baking Company, a corporation duly organized under the laws of the state of Ohio.

All the liabilities claimed upon arose between January 1, 1903, and May 2, 1903, and the principal question and really the only one that is important is: Is David M. Ramsey, as such stockholder, liable upon such claims in his individual capacity?

It is claimed that under the act of the general assembly passed April 29, 1902 (95 O. L. 312), he is not.

It will be observed that all the liabilities of this company arose subsequent to the passage of this act and that, by the terms of said act, the stockholder is not liable until the corporation becomes unable to pay the claims against it. The provision of the statute is as follows:

Laning R. L. 5202 (R. S. 3258). "The stockholders of a corporation who are the holders of its shares at a time when its debts and liabilities are enforcible against them, shall be deemed and held liable, equally and ratably, and not one for another, in addition to their stock, in an amount equal to the stock by them so held, to the creditors of the corporation, to secure the payment of such debts and liabilities; and no stockholder who shall transfer his stock in good faith, and such transfer is made on the books of the company, or on the back of the certificate of stock properly witnessed or tendered for transfer on the books of the company prior to the time when such debts and liabilities are so enforcible, shall be held to pay any portion thereof."

David M. Ramsey became a stockholder in said corporation, holding a certificate for the same in the sum of $1,500. During the time he was such stockholder debts were contracted by the corporation in a