Cuyahoga Circuit Court.

2. Same-Negligence Not pleaded. Where, in an action against an electric railway company, there was no allegation of negligence in failing to lower the life guard, the admission of evidence tending to show that the life guard with which the car was equipped was not lowered, and a charge of the court in relation thereto, by which the jury were permitted to base their verdict on such negligence, constitute error.

3. NEGLIGENCE TO RIDE BICYCLE ON RAILROAD TRACK.

A person riding a bicycle upon an electric railroad track in front of a moving car not twenty feet away, is guilty of such negligence as will defeat a recovery, and under such circumstances the negligence of both parties, if both are guilty, is concurrent.

4. RIGHT TO INSTRUCTIONS Before Argument.

Section 5190, Rev. Stat., confers on parties the right to have instructions requested in writing given to the jury before argument, and a request, if a correct statement of the law and pertinent to the issue, should be given and the refusal to give it is error, notwithstanding the request is an abstract proposition of law and requires construction as to its application.

HEARD ON Error.

Johnson & Hackney, for defendant.

Ford, Snyder, Henry & McGraw, for plaintiff in error, cited:

Failure of proof: Sec. 5296, Rev. Stat.; 6 Enc. Pl. & Pr., 688, and note 3.

Contributory negligence: Railroad Co. v. Kassen, 49 Ohio St., 230 [31 N. E. Rep., 282], as inapplicable. Railroad Co. v. Depew, 40 Ohio St., 121; Schweinforth v. Railway Co., 60 Ohio St., 215 [54 N. E. Rep.,89]; Cincinnati St., Ry. Co. v. Jenkins, 11 Circ. Dec., 130 [20 R., 256]. HALE, J.:

The plaintiff in error, the Cleveland, Painesville & Eastern Railroad Company, owns and operates a double-track railway between the cities of Cleveland and Painesville. A part of the line of this road is located on Collamore avenue, in the village of Collinwood.

On September 13, 1898, a car of said company, in charge of a conductor and motorman, was passing over said company's track on said street en route from Painesville to Cleveland. The decedent, William C. Bahr, on said day was riding a bicycle along said street in front of said car. After turning upon said street, said decedent rode for a short distance on the space called the "Devil Strip," and then turned into the space between the two rails upon which the car was approaching, directly in front of the car, which was not more than twenty-five feet distant from him. He was run over and killed.

It is averred in the petition that the wind was blowing very hard at the time, making it difficult for travellers on bicycles to hear the approach of cars; that the car was running at the rate of forty miles per hour; that the agents, servants and employees of the company in charge of said car, could and did see the decedent for more than nine hundred feet before striking him.

The petition avers that "on the date aforesaid, upon the street aforesaid, the wind blowing as aforesaid, the defendant's car running after the said William C. Bahr, deceased, as aforesaid, in charge of said defendant's agents, servants and employees, the said deceased upon his bicycle as aforesaid, upon the said street as aforesaid, in front of and in plain view of the defendant's agent operating said car as aforesaid, with his back thereto as aforesaid, the defendant, by its said agents, servants

Railroad Co. v. Nixon.

and employees operating said car, did then and there on said Collamore street, negligently, carelessly, unskilfully, wilfully, recklessly and purposely run said car against, upon, and over the body of the said deceased, William C. Bahr, by means of and whereof said William C. Bahr was then and there and thereby instantly killed."

On the trial of the case, the defendant in error abandoned the claim that the car was running at a high rate of speed and gave no evidence in support thereof, but based his right to recovery on the other allegations contained in the petition, and on the theory that the car was in fact running slowly and could, by the exercise of ordinary care, have been stopped in time to save the defendant after his peril was discovered, a theory that had no support in the averments of the petition.

In giving to the jury the rule of law by which the negligence of the company was to be determined, the court, among other things, said:

"A man may, by his own negligence and thoughtlessness, place himself in a dangerous position, a position that if he was not placed in he would not be hurt, but if the other party knows that he is in that dangerous position, is aware of it, in time to avert the injury, then the fact that the man was negligent in getting in that place is no defense."

If the liability of the plaintiff depended on the fact that there was a failure of the motorman to stop the car after discovering the peril of the decedent, there should be some averment of such fact in the petition. No such issue was made in the pleadings, and the charge upon that subject was at least misleading, and therefore erroneous.

Second. On the trial the defendant in error, over the objection of the plaintiff, was permitted to show that the life guard with which the car was equipped was not lowered.

In the charge, the court said to the jury: "Something has been said here about the life guard. I want to say a word about that. It appears from the evidence that this car had a life guard, and also from the evidence that somewhere several rods back, several hundred feet, the motorman discovered two persons upon bicycles in the "Devil Strip," and at some distance back sounded his gong as a warning. If, in the exercise of ordinary care, he did not deem that there was any exercise or use for this life guard, he would be under no obligation to drop it, if ordinary care would not require him to drop it; but if ordinary care would suggest it, if that would be any protection to this man, then the motorman was negligent in not dropping the life guard."

By the admission of this evidence, under the charge of the court, the jury were permitted to base their verdict on negligence of the company not charged in the petition. This was error. The evidence should

have been excluded and no recovery permitted upon that ground.

Third. Counsel for plaintiff in error requested the court in writing to give the jury, before argument, the following proposition:

"If the decedent, William C. Bahr, was guilty of any negligence whatever, directly contributing to his own injury and death, the plaintiff cannot recover."

Section 5190, Rev. Stat., confers upon parties the right to have instructions requested in writing given to the jury before argument, and such request, if a correct statement of the law and pertinent to the issue, should be given, and the refusal to give is error.

6 O. C. D. Vol. 12

Cuyahoga Circuit Court.

While this request as an abstract proposition of law may be correct, it is not happily worded; it requires some refinement and construction to its practical application.

Plaintiff's negligence might be so very insignificant as not to have the effect to defeat the action. It must be such as to proximately contribute to the injury. However, by this request, we suppose it is meant that any negligence whatever, sufficient to contribute directly to the injury, would defeat the action; and, if such was the proper meaning of the request, its refusal was error.

Fourth. Again, it is claimed that the verdict of the jury was not sustained by sufficient evidence, and that the motion for a new trial should have been allowed for that reason.

If we are correct in the construction given to the pleadings, this claim should be sustained.

We are also of the opinion that upon the theory upon which the case was tried, the verdict was not sustained by sufficient evidence.

There was no definite testimony of the speed at which the car was moving. There was some evidence, however, that it was moving slowly. It is claimed that the car stopped within five or six feet after striking the decedent, and therefore must have been moving slowly. There was no evidence whatever of the distance within which the car could have been stopped when running at the rate of speed at which the car was moving at the time. It is not shown that there was no effort to stop the car before the collision. For aught that appears, the motorman may have commenced his efforts to stop the car immediately after the decedent came upon the track; and while he was riding upon the "Devil Strip," there was but slight danger of a collision.

We hold that a person riding upon a bicycle passing upon a railroad track in front of a moving car not twenty feet away, is guilty of such negligence as will defeat a recovery. Under such circumstances, the negligence of both parties, if both are guilty of negligence, is concur

rent.

The judgment of the court of common pleas is, therefore, reversed, and the case remanded for a new trial.

CORPORATIONS-RECEIVERS.

[Geauga Circuit Court, March Term, 1901.]

Burrows, Laubie and Cook, JJ.

RUSSELL, ET AL., V. FARMERS MUTUAL UNION FIRE & LIGHTNING INSURANCE ASSOCIATION.

EXCEPTIONS TO RECEIVER'S REPORT-SEC. 5670, REV. STAT.-HEARING. When the report of a receiver in proceedings to dissolve a corporation is filed in court, as provided in Sec. 5670, Rev. Stat., and proper exceptions are filed to such report, it is error for the court to refuse to hear such exceptions, unless the parties excepting give bond to the effect that in case said exceptions are not finally sustained, they will pay the costs of such hearing, as well as legal interest upon the indebtedness of the corporation during the time the confirmation of said report of the receiver is thereby delayed.

Russell v. Insurance Association.

BURROWS, J:

The defendant in error is a corporation organized as a mutual insurance association under Secs. 3686 and 3687, Rev. Stat., and the plaintiffs in error are members of the corporation.

Upon petition of a majority of the directors for a dissolution of the corporation such proceedings were had that a judgment of dissolution was entered by the court, and a receiver appointed as provided by Sec. 5656, Rev. Stat.

The receiver, having accepted the appointment and given bond as required by law, entered upon the discharge of his duties, and thereafter, in accordance with the requirements of the statute, filed in court his final report containing a full and complete account of all his proceedings. This report contained a full and detailed statement of the affairs of the corporation, including a full list of its creditors and the amount. due to each, and a schedule of all assets. It appeared from the report that the indebtedness exceeded the assets by fifteen thousand dollars or

more.

The report also contained a schedule showing, by monthly periods, when the indebtedness was incurred and the rate of assessment necessary to be levied for each month upon members of the corporation holding policies during the time that such indebtedness was incurred, in order to pay said indebtedness, costs and expenses.

The larger part of the indebtedness allowed and reported by the receiver consisted of claims presented by the directors on account of the personal liabilities they had assumed for the corporation by giving their promissory notes to certain banks for loans made from time to time to pay losses and expenses in the conduct of the business.

Upon the filing of this report the plaintiffs in error filed exceptions to the same, alleging the invalidity of the claims of the directors so allowed and demanded a hearing upon such exceptions, and also asked to have the report referred to a referee.

The court refused to refer the report, and also refused to hear the exceptions except upon condition that the plaintiffs in error would give bond, in due form, in the sum of five thousand dollars that they would pay, in case said exceptions were not finally sustained, all costs of such hearing and the interest on the indebtedness of the corporation during the time the final decree was delayed. Plaintiffs in error declining to give said bond the court ordered said exceptions stricken from the files of the case; and refused to consider the same, because of the refusal of plaintiffs in error to give said bond; and thereupon confirmed said report of the receiver, and decreed the same to be final and conclusive.

To all these rulings and the decree of the court, plaintiffs in error excepted.

The correctness of these rulings is the only question raised on this record. We have not examined the merits of the contention made by the exceptions to the report of the receiver further then to determine, in our opinion, that they were not frivolous or immaterial. It is contended in argument that the court below had the right to strike said exceptions from the files, for the reason that it was not shown or alleged that the exceptors were solvent; and that where, as in this case, the debts of the corporation are to be collected from the solvent members alone the insolvent policy holders had no interest in the controversy.

We need not stop to inquire whether this position would be tenable where the insolvency of the exceptors affirmatively appears, or where i

Geauga Circuit Court.

appears that the decree will exempt them from assessments levied to pay the debts. But we are well satisfied that there is no presumption of law or fact that these policy holders are insolvent. They had property insured, and gave their promises to pay assessments, and are presumed to be capable of performing their promises. Besides, this question was not raised in the court below, and did not enter into the rulings of the court which are now under discussion.

The action of the court is assailed and defended by counsel upon either side by an appeal to the statute regulating the conduct of proceedings in such case. No authorities have been cited other than the statute, and its construction must determine the questions we are called upon to decide.

I will read the sections of the Revised Statutes, which are supposed to bear directly upon this question.

Section 5670: "When required by the court the receiver shall render a full and accurate account of all his proceedings to the court, on oath, which may be referred to a referee or master commissioner to examine and report thereon; but before he renders any such account he shall insert a notice of his intention to present the same, once a week, for three consecutive weeks, in some newspaper printed and of general circulation in the county wherein the principal place of business of the corporation is situate, specifying the time and place at which such account will be rendered.'

Section 5671: "The referee to whom such account is referred shall hear and examine the proofs, vouchers, and documents offered for or against the same, and shall report thereon fully to the court; and when the report is made, the court shall hear the allegations of all concerned therein, and shall allow or disallow the account, and may decree the same to be final and conclusive upon all creditors of the corporation, upon all persons who have claims against it, upon any open or subsisting engagement, and upon all the stockholders of the corporation."

It is insisted by counsel for plaintiffs in error that they are entitled to file exceptions to the report of the receiver, and have the same heard by the court, and that such right is secured to them by the plain letter of the statute; while counsel for defendant in error contend that whatever provision is made sections for exceptions to the report of the receiver and the hea. of the same only an exercise of discretion is required on the part of the court; that as to the questions raised by these exceptions the exceptors were foreclosed by the report of the receiver; and that, the decree of the court would still leave the question of the liability of the exceptions open for contest when an attempt should be made to collect the assessments.

0

Upon a careful reading of these sections, and the entire chapter relating to the dissolution of corporations, we are inclined to the view contended for by plaintiffs in error as to their right to have a hearing. Whether they had a right to have the report referred to a referee may be doubtful. They contend that the power given to the court to refer, by the use of the word "may" gave him no discretion, because the exercise of such power was necessary to secure the just rights of those interested. But when we consider the subject matter of the statute it is not apparent that the rights of the parties were jeopardized by a refusal to refer the report of the receiver. Where such report is of a character requiring no serious examination and is not objected to, it would be a vain thing to refer it; and where objections are made then the propriety or necessity