two hundred and seventy-five feet from the railroad, looked along the same eastward, when he could see a distance of about onefourth of a mile, and saw no approaching train. He did not look again, but drove upon the track, where the collision occurred. Had he looked when within one hundred feet of the railroad, he would have had an unobstructed view of nearly one-half mile. He was familiar with the crossing, and it must be presumed he knew this fact. When it is said that a person approaching a railroad crossing must look and listen attentively for approaching trains, it is not to be understood that he may look from a given point, and then close his eyes; but it is to be understood that he must exercise such care as a reasonably prudent person, in the presence of such a danger, would exercise to avoid injury. The courts cannot close their eyes to matters of general notoriety and to matters of every-day observation. We must know that a train of cars passing over iron or steel rails at a speed of thirty miles an hour does not do so without noise. We must know, too, that where a person possessing good eyesight, located within one hundred feet of the track, has an unobstructed view of such track for a distance of nearly one-half mile, he cannot fail to see an approaching train before it reaches him, if he looks attentively; and that, if he is possessed of ordinary hearing, he could not fail to hear it when listening attentively, if running at the speed of thirty miles an hour." In the case of Railway Co. v. Howard, 124 Ind. 280, 288, 24 N. E. 892, the following quotation from Allen v. Railroad Co. (Me.) 19 Atl. 105, is cited with approval, viz.: "The evidence shows that at twenty-five or thirty feet from the crossing the approaching train from Bath might have been seen by the plaintiff several hundred feet distant from the crossing. The plaintiff did not look in that direction until his horses' forefeet were between the rails. Was the neglect on his part to look in that direction a want of ordinary care and prudence? Is a traveler justified in driving upon a railroad crossing, in the absence of safety signals giving him the right to cross, without looking for an approaching train? It has been many times decided in this court that the traveler, before crossing a railroad, must both look and listen. If the crossing at which the plaintiff was injured is so constructed that an approaching train cannot be seen until a traveler comes very near to the railroad track, common prudence requires him to approach at such speed that, when an approaching train may be seen, he may be able to stop and allow such train to pass." "A railroad track is a perpetual menace of danger, and the traveler is not excused if his eyes and ears are not kept open up to such distance of it that he may stop if he can see or hear its approach. If he had looked at any time within the 40 feet be

fore he drove his horse upon the track, we think he must inevitably have seen the track, and could have saved a collision." Freeman v. Railway Co., 74 Mich. 86, 41 N. W. 872.

The above cases announce the duty imposed upon the traveler to avoid coming in collision with the train, and the same duty is imposed upon him to avoid placing himself in such close proximity to the track that either his person or his property may be endangered by a passing train from any cause. In this case the jury found that for a distance of 90 feet the view was unobstructed, and a train approaching could be seen for a third of a mile. If the appellee had looked when that distance from the track, he could not have avoided seeing the approaching train. It was in plain sight, and, if not seen, it was because he did not look. When for a distance of 90 feet from the track the view along the track for one-third of a mile is unobstructed, the law will declare negligence in a traveler to approach the track in front of an approaching train. Under such circumstances, it is for the court as a matter of law, and not for a jury as a question of fact, to declare whether it is negligence for the traveler to proceed; and the courts universally declare it is negligence. The majority of the court consider that the jury were the exclusive judges as to whether or not the appellee could have stopped and avoided the injury had he seen the train approaching, and that their decision on that question cannot, in this case at least, be reviewed. In this view of the jury's right I cannot concur. That he could have stopped if he was ap proaching the crossing as an ordinarily prudent person should is evident, although a jury might conclude to the contrary, and that by stopping he would have been out of harm's way, in that he could not have been struck by the train. The only question, therefore, is, could a jury, from any evidence which might properly be introduced, decide whether or not appellee's horse would or would not become frightened at the passing train and escaping steam, and become unmanageable, and run away, and injure appellee? Such findings are mere matters of opinion, and not facts. They are not even an opinion based upon given facts, but are based upon supposition only. For a jury to say that, if appellee had seen the train approaching when he was yet 80 feet from the track, he could not have avoided being injured, is nothing but presumption, and if permissible in this case is in all cases, and they might as consistently have said the same thing if he could have seen the train when he was 500 feet away from the track. It must be remembered that the appellee was not struck by the train, but that, after he had crossed the railroad track, and was proceeding along the highway, which was almost parallel with the track, the train coming from behind frightened his horse, and it ran away, and appellee, in get

It is

ting out of the wagon, was injured. clear to the mind of the writer that it was not the failure to give the statutory signals that caused appellee's injury, or that it in any way contributed thereto, because, had the signals been given at the place designated by law, appellee would have been less than 90 feet from the track, if he approached the track at such a rate of speed as a prudent person should. The jury found the train was running at the rate of 50 miles per hour. At this rate the train traversed 73 feet every second, while a traveler going at the rate of 6 miles an hour would travel about 9 feet in each second; hence, while the appellee was going from the point where his view was first unobstructed-90 feet from the track to the track, the train would have gone only 730 feet. But he crossed the track, and was going along the highway when the train came up; so he must have gone at least 20 or 30 feet further before the train reached the crossing. While he was going this 20 or 30 feet the train ran 200 or 300 feet. During all this time the train was in plain view, according to the findings of the jury. If, as the jury find, the appellee could have seen a train approaching 1,760 feet, the question arises, why did he not see it when only 900 or 1,000 feet away? To this there can be but one answer: because he did not look.

Counsel for appellant also insist that the court erred in giving to the jury certain instructions, the insistence being that they are not applicable to the case as alleged in the complaint. By instruction No. 2 of the instructions given at the request of the appellee the jury were told that, if the appellant's servants in charge of the train failed to give the proper signals as required by the statute, the appellant would be guilty of negligence, and, if the appellee was injured by reason of such failure, and without any negligence on his part contributing thereto, he was entitled to recover. But by the third instruction the court told the jury that, if the appellant's servants negligently opened the side valves and permitted the steam to escape, frightening appellee's horse, and causing it to run away, he was entitled to recover. The majority do not pretend to hold that both of these instructions were good, but avoid the error of the court in giving the third instruction by saying it did no harm. The entire court seems to be of opinion that, if the second instruction is good, the third is bad, and vice versa. I think the second instruction is bad, because the gist of the action as alleged in the complaint is not that appellant's servants failed to give the statutory signals, but for negligently opening the side valves, permitting the steam to escape. Again, the majority hold that the complaint states a cause of action when all the negligent acts charged and duties omitted are considered together, namely, the failure to give the statutory signals, and that appellant's servants "negligently, carelessly, and maliciously

opened the side valves of the engine, thereby causing a great vapor of steam and smoke to escape," etc. If it were necessary to make these latter allegations in order to state a cause of action, it was necessary to prove them. The second instruction wholly ignores the necessity for making proof of such facts, but simply tells the jury that, if appellant failed to give the statutory signals, and appellee was injured thereby without any fault on his part, he was entitled to recover. If the majority's view is correct as to the theory of the complaint, this instruction is clearly bad. If I gather correctly the opinion of the majority as heard read, the second Instruction is held applicable under the issues, and that the third was not applicable; but the error in giving it was harmless, because the jury, in answer to interrogatory No. 1, say the appellee was injured on account of appellant's neglect to give the statutory signals. It is error to give an instruction wholly without the issues, and it will be presumed to have been harmful unless it affirmatively appears from the verdict of the jury that it did not influence them in arriving at a verdict. The jury, in answer to the first interrogatory, do not find that the appellee was injured by reason of the neglect of appellant's servants to give the statutory signals, but "by neglecting to sound proper signals." What the jury may have considered "proper signals" is not stated. What they considered "proper signals" and the signals required by the statute. may be, and in this instance probably were, entirely different. The jury may have thought it was the duty of appellant's servants to have blown the whistle for the entire 80 rods before reaching the crossing, and that, when they failed to do so, they "neglected to sound proper signals." I cannot concur in saying that a finding that they did not give "proper signals" is equivalent to a finding that they did not give the statutory signals. I think there is error in the record, and the judgment should be reversed.

METZ v. HAGERTY, County Auditor, et al. (Supreme Court of Ohio. June 20, 1894.) CONSTITUTIONAL LAW-CIGARETTE TAX-ASSESS

MENT.

1. The act entitled "An act to tax the business of trafficking in cigarettes or cigarette wrappers," passed April 24, and which took effect August 1, 1893 (90 Ohio Laws, 235), is not in conflict with the constitution of Ohio, nor with the constitution of the United States.

2. Said act does not authorize the assessment or collection of such tax for the year 1893. (Syllabus by the Court.)

Error to circuit court, Hamilton county.

Bill by Edward Metz against John Hagerty, auditor of the county of Hamilton, and others, to restrain the collection of a tax. Judgment for defendants, and plaintiff brings error. Reversed.

The plaintiff in error (also plaintiff below)

filed the following petition in the court of common pleas of Hamilton county on the 23d day of September, 1893:

"The plaintiff, Edward Metz, represents and avers that he is a resident of the city of Cincinnati, Ohio, and there engaged, at the northwest corner of Fourth and Main streets, in the wholesale and retail business of trafficking in cigarettes and cigarette wrappers, and has been so engaged for some years; and that he conducts said business in connection with the business of trafficking in cigars and tobacco. The plaintiff further avers that the cigarettes and cigarette wrappers used in the traffic in which he is and has been engaged as aforesaid are made only of pure and wholesome tobacco and harmless paper; that there are no deleterious or noxious ingredients of any kind used in the manufacture of such cigarettes or cigarette wrappers; and that he intends to traffic only in cigarettes and cigarette wrappers of the kind described, there being no other kind, to his knowledge. The said plaintiff further avers, that he has at all times heretofore made returns of all his personal property, including cigarettes and cigarette wrappers employed in his business of trafficking therein as aforesaid, and has, at the times fixed by law therefor, paid into the county treasury all taxes due and owing on account of such cigarettes and cigarette wrappers, but that he has never heretofore been called upon or required to pay any taxes or assessments upon his business of trafficking in such articles. Nevertheless, John Hagerty, who is auditor of said county of Hamilton, defendant herein, has given official notice to all persons intending to engage in the business of trafficking in cigarettes or cigarette wrappers, either at wholesale or retail, to apply at his office at once, and make statements, as mentioned in said notice, 'as required by law,' upon blanks to be furnished for that purpose, and to be verified by such persons, and that said defendant auditor, as well as Leo Schott, who is treasurer of said county, also defendant herein, claims that under the recent act of the general assembly entitled 'An act to tax the business of trafficking in cigarettes and cigarette wrappers,' passed April 24, 1893, to take effect and be in force on and after the 1st day of August, 1893, all persons engaged, or intending to engage, in the wholesale and retail business of trafficking in cigarettes or cigarette wrappers, are chargeable with an assessment of ninety-two dollars and fifty-eight cents on account of such wholesale business, and twenty-nine dollars and thirty-two cents on account of such retail business, payable August 1, 1893, as the proportionate part of the annual assessment claimed to be due under said act for the portion of the year between August 1 and December 20, 1893; that plaintiff commenced the said business of trafficking in cigarettes and cigarette wrappers prior to the fourth Monday of May, 1893, and has ever since continued, and intends hereafter,

unless said tax or assessment is enforced, to continue, his said business, but that the said defendants, in addition to enforcing all the ordinary remedies for collecting such taxes or assessments, threaten and intend to and will, unless restrained by the order of this court, resort to the institution of proceedings ac cording to the provisions of section 6 of the act of the general assembly aforesaid, to prosecute this plaintiff, who declines to pay said assessment, all of which, if permitted, will cause this plaintiff great and irreparable injury.

"The plaintiff further says, that the busi ness of trafficking in cigarettes and cigarette wrappers, especially the retail business, is actually and of necessity small, being always carried on in connection with, and as an incident of, the business of trafficking in cigars and tobacco or other articles, and that the enforcement of the taxes or assessments provided for by said act will, if permitted, operate to destroy and prohibit the traffic itself. Plaintiff further states that said business is such, and is so conducted, and the cigarettes and cigarette wrappers used are composed of such materials, as not to be harmful to the public; that there are a large number of persons, to wit, more than fifty, engaged in said county in said business, who have different and varying amounts of trade in cigarettes and cigarette wrappers; that their outlays, receipts, and profits, in money, arising therefrom, differ and vary materially, according to the amounts of business they severally conduct; that, if the act aforesaid is operative to tax the business of trafficking in cigarettes and cigarette wrappers, then that the same is unconstitutional and void, not only for that such law results in double taxation upon plaintiff, respecting said articles, but that said law fails and omits to provide for the taxing of other business or property which is equally subject to the taxing power, to wit, the business of trafficking in candies, sweetmeats, cigars, and tobacco, as well as the acknowledged staples; that the business and property thus excluded from taxation is of great value, amounting in said county of Hamilton alone to vast sums of money; and that by reason of the differences in quantity of business done by the various dealers as aforesaid, and by reason of the omission from taxation of the business of trafficking in the other articles above mentioned, by which the rate of taxation upon other property will be unlawfully and unduly increased, this plaintiff will, if said act is enforced, be taxed, not by a uniform rule, nor according to the true value of his property in money, and will also be denied the equal protection of the law, whereby said act, passed, as aforesaid, April 24, 1893, is repugnant to section 2, article 12, of the constitution of Ohio, and to section 1 of amendment 14 to the constitution of the United States. He also avers that the failure of said act to state distinctly the object of the tax imposed, and its failure to discrim

inate between commerce in cigarettes and cigarette wrappers within this state and that among the several states, including Ohio, and with foreign nations, renders said act also repugnant to section 5, art. 12, of the former, and to section 8, art. 1, of the latter, constitution, plaintiff being an importer and seller of cigarettes and cigarette wrappers in original packages.

"Wherefore, said plaintiff prays for the issuance of an order restraining the said John Hagerty, county auditor, from further issuing official notice requiring this plaintiff to apply at his office and make statements as to his intention to engage in the business of trafficking in cigarettes and cigarette wrappers, from making said assessments of $92.58 and $29.32, respectively, or any assessment, against this plaintiff, respecting such traffic, especially from doubling the amount specified in section 4 of said statute, passed, as aforesaid, April 24, 1893, to take effect August 1, 1893, and from doing anything else under or in pursuance of the provisions of said statute; restraining said Leo Schott, treasurer of said county, from taking any steps or doing any act towards collecting any assessment of any sum in pursuance of the statute last aforesaid, especially the sums of $92.58 and $29.32, sought to be exacted as aforesaid of this plaintiff; that, upon final hearing hereof, said restraining order be made perpetual; and that such other and further relief may be granted in the premises as equity may require."

To this petition the defendants filed a general demurrer, which was sustained by the court, and judgment rendered in favor of defendants below. This judgment was affirmed by the circuit court, and thereupon a petition in error was filed in this court to reverse the judgment of both courts below.

J. W. Warrington, M. A. Norris, John A. McMahon, John H. Doyle, George K. Nash, and Andrew Squire, for plaintiff in error. Spiegel, Bronwell & Foraker and James B. Kennedy, for defendants in error.

PER CURIAM. A majority of the court are of the opinion that the act known as the "Cigarette Law" is constitutional; but, as the act has been repealed, it is not now important to give the reasons of the majority for so holding.

A majority of the court are, however, of opinion that the assessments provided for in said act cannot be assessed or collected upon the traffic in cigarettes for the year 1893. The statute provides that the assessment shall be made annually, and the returns upon which the assessments are to be based are required to be made by the assessors, with their other returns, on or before the third Monday of May in each year; and payment is to be made, one-half on or before the 20th day of June, and the other half on or before the 20th day of December, in each year. The

assessment is, in contemplation of the statute, to be an annual assessment; that is, for a whole year, from January 1st to December 31st. The statute did not take effect until the 1st day of August, 1893, when only five months of the year remained. The statute is, in effect, the same as if it had been passed on August 1st, to be in force from and after its passage. As the time for making the returns by the assessors, and the assessments by the auditors, and the June payment to the treasurer, was long past before the law took effect, it cannot be inferred, without a clear provision to that effect, that the legislature intended that an act so penal in its nature should have the effect to impose an assessment for seven months of the year before the law was in force. A majority of the court therefore hold that the act in question did not authorize such assessment for the year 1893, and that the court of common pleas erred in sustaining the demurrer to the petition, and in rendering judgment in favor of the defendants below, and that the circuit court erred in affirming the judgment of the common pleas. Both judgments are therefore reversed, and cause remanded to the court of common pleas, with instructions to overrule the demurrer to the petition, and for further proceedings according to law. Judgment reversed.

DUNCAN v. WILLIS.

(Supreme Court of Ohio. June 19, 1894.) PARTIES TO ACTIONS-PRACTICE IN CIVIL CASESDAMAGES.

W., having knowledge that D. O. D. and R. W. D. were desirous of purchasing 30 to 40 head of hogs, each for separate use, represented to them that he had 100 head of the kind and quality they wanted. He would not sell in sepa rate lots, but would sell in one lot, and the purchasers could divide them to suit themselves. He further represented that his hogs were sound, healthy, and free from disease, and that he had purchased them a few days before at $5 per 100 pounds. In fact, the hogs had been exposed to hog cholera, and were then infected with it, and had been purchased by W. as diseased hogs, and for a sum much less than $5 per 100 pounds. all which was well known to W., but unknown to the purchasers. Relying on the foregoing representations, the entire lot was purchased for $5.122 per 100 pounds, the two purchasers each to have 50 head as his separate and individual property, and to feed the same separately on their respective farms. The hogs were so divided immediately upon completion of the purchase. On the same day a number of them owned by D. O. D. died from cholera, and the disease was communicated to his other hogs, some of which also died. Held, that D. O. D. might maintain an action for damages against W. for the deceit and fraud, without joining R. W. D., or making him a party defendant. (Syllabus by the Court.)

Error to circuit court, Fayette county. Action by D. O. Duncan against one Willis. Judgment for plaintiff, which was reversed by the circuit court, and plaintiff brings error. Reversed.

Plaintiff's action was commenced by the filing in the court of common pleas of Fayette county of a petition, of which the following is a copy: "The above-named plaintiff says that on or about the 28th day of November, 1888, this plaintiff and his brother, R. W. Duncan, being desirous of each purchasing from 30 to 40 head light-feeding hogs, the defendant represented to them that he had 100 head of the kind and quality they wanted, but would not sell them in separate lots or parcels, but would sell them the entire lot, and they could divide them separately to suit themselves. The defendant represented to them that said hogs were sound, healthy, and free from disease, and that he had purchased the same a few days before for the price of $5 per 100 pounds. That plaintiff and his said brother, relying wholly upon the said statements and representations of defendant, and with no other knowledge of said hogs, then agreed with defendant to purchase, and then did purchase, said 100 hogs of defendant at the price of $5.122 per 100 pounds, and then paid him therefor the amount they came to, to wit, $564.30; this plaintiff and his said brother each to have 50 head of said hogs as his separate and individual property, and to feed separately on their respective farms. That they took said hogs, each of them 50, and put them on their respective farms, the same day, which are about ten miles from defendant's. This plaintiff put his 50 hogs on his said place, and, believing from the statements of defendant that they were sound, healthy, and free from disease, put them in a lot adjoining a lot in which he had 30 other hogs. The plaintiff says that said hogs so purchased of defendant by plaintiff and his said brother were not then sound and healthy nor free from disease, nor had defendant paid therefor $5 per 100 pounds, but, on the contrary, said hogs were then, and had been for a long time before, sick and diseased, and infected with the disease known as 'hog cholera.' That said 100 head of hogs had all been exposed to and infected with said disease when said defendant purchased them, which was a few days before he sold them to plaintiff and his brother. And the defendant well knew at the time he so purchased them that they had been exposed to said disease, and were infected therewith and diseased, and he purchased them as and for diseased hogs, and at much less than $5 per 100 pounds. And he well knew that they were not sound or healthy or free from disease when he so represented them to plaintiff and his brother, but fraudulently and purposely withheld from them the facts concerning said hogs and said disease, and purposely sold the same to them as free from disease, when he well knew they were not. The plaintiff says that of the said hogs this plaintiff got, some of said 50 hogs died from said disease the same day they took them home, and all of them, to wit, said 50 head

taken by this plaintiff, were and became sick of said disease, and before the 10th day of December several had died. This plaintiff expended in time and medicine in and about trying to cure and prevent said disease $12, and on the 10th of December, to save what he could, he sold the balance of said 50 hogs as and for diseased hogs for the sum of $78.27, which was all they were worth for any purpose. That his said 30 other hogs became and were infected with said disease from said hogs, and some have died, and all were made much less valuable. One sow, worth $7.50, became sick, and he disposed of her, realizing only $3, which was all she was worth for any purpose; and the damage and injury to his other hogs was and is at least $25, besides infecting his said farm, and making it dangerous to put any hogs thereon. The plaintiff says by reason of the premises aforesaid he has been damaged in the sum of $500, for which he asks judgment against the said defendant." To this pleading a demurrer was interposed on the grounds: (1) That the petition does not state facts sufficient to constitute a cause of action; and (2) there is a defect of parties plaintiff. The demurrer being overruled, issue was taken, and a trial had, which resulted in a verdict and judgment for plaintiff. This judgment was reversed by the circuit court on the ground that the common pleas erred in overruling the demurrer to the petition.

Mills Gardner, for plaintiff in error. Worthington & Post, for defendant in error.

SPEAR, J. (after stating the facts). The ground of reversal was that there was a defect of parties plaintiff, and hence the common pleas erred in not sustaining the second ground of demurrer. In support of this holding it is argued that the case is controlled by section 5007, Rev. St., which requires that "parties who are united in interest must be joined as plaintiffs or defendants;" that a contract by one person with two or more jointly does not comprehend or involve a contract with either separately, and a defendant, who has made but one contract, or incurred a single liability, obviously has the right to require the whole case to be disposed of in one action; and, applying these considerations to the case at bar, inasmuch as R. W. Duncan was a party to the contract of purchase, he was united in interest with the plaintiff, and was a necessary party to the action, because Willis, having made a single contract, incurred only a single liability, and hence had the right to have R. W. Duncan brought in, so that the whole question of liability might be disposed of in one action. The general rule undoubtedly is that in a suit for the breach of a joint contract all the parties to the contract must be joined as parties in the action, and, if any refuse to become plaintiffs, they may be made defendants. This rule rests not only upon the