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danger. The plaintiff quit work at the time has been brought up by defendant, it is evistated, but in a few minutes thereafter dis-dent that the walk hereinbefore mentioned covered that her pocketbook had been left was built to accommodate travel, and having in the room in which she had been engaged, been laid across a public thoroughfare its exwhereupon she returned and obtained the istence was thus clearly indicated on the purse. She then passed over the walk to ground, calling attention thereto and requirthe spur track where she found the furni-ing of the defendant a greater degree of care ture car entirely obstructing the passage and watchfulness here than is usually deway, and not knowing that her associates manded when moving a train along an orhad been endangered by the car, which then dinary highway. Whether or not the plank was stationary, she attempted to pass around walk may be regarded as a public crossing the westerly end of it and within a few feet is immaterial, for as the accident happened therefrom. When she was about in the mid-westerly thereof, but on a city street, where dle of the track the car was again moved the defendant is required to exercise a very slowly backwards, striking, prostrating, and high degree of care in operating its engines rolling or pushing her along the track until and cars, it will not be permitted to omit the forward wheels on the opposite side with impunity any reasonable duty that may passed over one of her lower limbs, crush-tend to the safety of the public, which has ing it and necessitating amputation below an equal right with the defendant to the the knee.

free use of the highway. Chicago, BurlingThe plaintiff, as a witness in her own be-ton & Quincy R. R. Co. v. Stumps, 69 Ill. 409. half, testified that when she thus came down “It is now a well-recognized doctrine that the passageway, she stopped and looked and railroad companies,” says Mr. Justice McEnlistened before attempting to pass over the ry in Curley V. Illinois Central Railroad track; that she then saw the engine headed Company, 40 La. Ann. 810, 816, 6 South. 105, southeast and not attached to the furniture "are required to exercise extraordinary precar; that no bell was rung or whistle sound cautions for the protection of the public in ed, nor was any servant of the defendant the management of their trains running present to warn her that the car was about through the streets of a populous city.” to be moved in either direction; and that Assuming the plaintiff's theory to be true, thinking it was safe to cross she attempted as outlined by her testimony, that after darkto do so, when the car was backed, injur- ness had set in the bell was not rung or the ing her in the manner indicated. Several whistle sounded when the car was backed witnesses who appeared for the plaintiff at over the crossing and along the street in a the trial indirectly corroborated her testi- city like Portland, without displaying a light mony by stating that they did not hear any or posting a switchman at or on the approachbell or whistle prior to the injury. The yard ing end of the car in order that travelers switchman who saw the two young women would be warned of any peril, and so that when they were so nearly caught by the this guard could have signaled the engineer car testified that he chided them for their and applied the brakes in case of danger, carelessness, and further stated that the bell thus avoiding injury to persons on the track, on the engine was constantly rung until aft-were facts from which the jury could deer the plaintiff was hurt, which latter dec- termine the degree of care exercised by the laration is corroborated by the other em- defendant at the time and place mentioned. ployés of the defendant who were then en- The testimony given on behalf of the plaingaged at that place.

tiff, though disputed by the defendant, is to Mrs. Larmon testified that after the two the effect that at the time she was injured young women crossed the track this switch-the switchman was not giving any attention man turned his back to the car and joked to the moving of the car, but had turned his with them, and for that reason he did not back thereto, and was jesting with the two observe the plaintiff until his attention was young women who were so nearly run over. attracted by the outcry of herself and others. Mrs. Larmon, referring to such neglect of

It appears that an electric lamp was sus-duty, testified that she advised these young pended over the railroad track some distance women, to whom the switchman was then northwest of the furniture car, but its rays talking, to tell him to mind his own business. evidently did not illumine the track at or The failure of the defendant to give the necnear the passageway, for nearly all the essary warning signal, as asserted by plaindefendant's employés who were engaged at tiff and her witnesses, or to station a watchthat place when the injury occurred testified man at the crossing, and the carelessness of that it was dark. J. Braun, the fireman the switchman as above outlined, when the then in the engine, in answer to the question, want of sufficient light made the movement "Did you see the people that came out of of the car obscure, and its slow motion probthe can company?”' replied, “No; it was dark, ably rendered its approach almost noiseless, I could not see them."

were circumstances tending to show a lack It is not alleged in the complaint that a of ordinary care, from which negligence public crossing is maintained at the juncture might have been inferred, which inattention of Fourteenth and North Front streets, but, authorized a submission of the cause to the


shows that no error was committed in re- , means to warn travelers of danger, such fusing to direct a verdict for the defendant. means as will be equally efficient as the bell

The court, having declined to give an in- or whistle warning in the case of an advanstruction requested by defendant's counsel, cing unreversed train." In Union Pacific an exception was taken to the refusal to Railroad Company v. Connolly, 77 Neb. 254, charge the jury as follows: “If you believe 269, 109 N. W. 368, 374, the defendant in erfrom the evidence that at the time plaintiff ror having recovered $27,500 as damages for started to cross the railroad track of defend the loss of his feet, which were severed by ant the car with locomotive attached was at the backing at night of an engine and four rest, and the defendant previous to starting or six cars over him at a crossing, the judgsaid car caused the bell on the engine to be ment was affirmed on appeal, the court sayrung as a notice that said car was about to ing: “That the rear car of that portion of move, but that notwithstanding such ringing the train displayed no lights, and that no of the bell the plaintiff started to cross said person was stationed thereon, or at the track in front of said car and so close to said crossing, to give warning of its approach to car that she was struck and knocked down the crossing, are facts conclusively establishas described in the testimony, I charge you ed by the evidence and practically conceded. that such act of plaintiff in attempting to The accident occurred in a populous comcross said track in such close proximity to munity and within the limits of a considerasaid car was an act of carelessness on her ble city. It occurred in the nighttime, and part which would prevent her recovering in at a crossing in common use at all hours, and this action, and your verdict must be for the where, as we have seen, the defendant comdefendant.” The theory of plaintiff's coun- pany was charged with the duty of exercissel, as evidenced by the testimony sought to ing reasonable care to avoid injury to those be elicited at the trial, is that the engine was crossing its tracks. It is true, it seems to run forward southeast on North Front street be conceded that the bell was rung and the over the switch mentioned, and thence backed whistle sounded to give warning that the on the spur track to where the furniture car train was moving. But the mere fact that stood; that the first attempt to connect the the statute requiring such warnings was engine and car, which was made when the complied with does not of itself show that two young women were endangered, proved the defendant had discharged its full duty to unsuccessful because the automatic couplers those using the crossing. It was bound to were not properly opposed to each other in use reasonable care not to endanger those consequence of the curvature of the line of who might be lawfully upon its tracks at railway at that place; and that when the the crossing, and whether, in view of the plaintiff reached the spur track the engine time, place, and circumstances, precautions and car were stationary and unconnected, in addition to those prescribed by the statute but in making the second attempt to couple were required, was a question for the jury. them she was injured. It is conceded that * * The crossing was in common use the locomotive and car were at rest, as indi- day and night. It was across tracks in concated in the request for the instruction, but stant use, and in a populous and busy comnearly every other important fact stated munity. That due care required more than therein is disputed. Taking for granted that ringing the bell and sounding the whistle to none of the facts so controverted are assum- give warning of a freight train backing toed in the request, and that the phrase "if you ward and over such crossing in the nighttime believe” is understood as limiting each clause, is certainly not an unreasonable inference in it will be seen that the ringing of the engine view of all the facts and circumstances.” bell is the important incident, which is un- In the case at bar if, in the darkness, the dertaken to be emphasized by the language light of the locomotive had been directed toemployed.

wards the plaintiff and no intervening obA noted author in discussing the obliga-ject had obscured its gleams, the ringing of tions devolving upon railroad companies the bell, whether or not she heard it, might says: "The danger to the public at crossings possibly have afforded such warning of the or other places where the public have a right contemplated movement of the engine as the to be in common with the railway company, necessity demanded, for the illumination of backing its cars without having a man should have been sufficient to attract her atstanding on the foremost car to look out, to tention, if she had given any heed thereto. give warnings to the engineer and to the en- When, however, the locomotive was headed dangered traveler, and to apply the brake, is from her, and, as she claims, not coupled so obvious as not to require discussion.” to the furniture car which intervened, and Thomp. Neg. § 1571. In Bowles v. Chesa- there was no light or switchman thereon to peake & Ohio Ry. Co., 61 W. Va. 272, 57 s. warn her in the darkness that the car was to E. 131, a headnote is as follows: "It is neg- be backed, it was essential that she should ligence per se to back a train on a dark have heard the bell, if it was rung, in order night over a public railroad crossing with to charge her with contributory negligence out warning, by blowing a whistle or ring- in risking her life by attempting to cross the ing a bell or guard or light on the advancing track. The instruction requested does not




ligence on her hearing the bell rung, but up-13. CONSTITUTIONAL LAW (8 15*)-CONSTRUCon the mere ringing thereof. The language TION OF CONSTITUTION – Two CONSTRUCsuggested to the court was not, in our opin

Where two constructions of a Constituion, sufficient, under all the circumstances tion are possible, one of which raises a conflict involved, and though the defendant was en- or takes away the meaning of a section, sentitled to have its theory of the case submit- tence, phrase, or word, and the other does not, ted to the jury, the requested instruction interpretation which harmonizes the Constitu

the latter construction must be adopted, or the was too restricted.

tion as a whole must prevail. No issue is made by the pleadings as to

[Ed. Note.--For other cases, see Constituthe want of either natural or artificial light, tional Law, Cent. Dig. $ 9; Dec. Dig. $ 15.*] but as the testimony tends to show that at 4. CONSTITUTIONAL LAW ($ 26*)-NATURE OF the time of the injury the place where it oc- STATE CONSTITUTION. curred was dark, the court properly kept in A state Constitution, unlike a federal Conmind that fact, as a condition from which stitution, is one of limitation and not a grant the jury might deduce the plaintiff's con- ture not 'prohibited by the state Constitution

of powers, and any act adopted by the Legislatributory negligence, only in case they found is valid, and the inhibition must expressly or she heard the ringing of the bell before she impliedly be made to appear beyond a reasonattempted to cross the railroad track. If the able doubt. darkness had been called to the attention of

[Ed. Note. For other cases, see Constitutionthe jury in any part of the charge, so that a al Law, Cent. Dig. $ 30; Dee. Dig. $ 26.*1 finding thereon had been requested, the state-5. COURTS (8 42*) - SUPREME COURTS - INment thereof, though hypothetically made,

CREASE OF JUDGES-CONSTITUTIONAL PROwould probably have been erroneous, because it was not predicated on any fact maintained shall be administered openly and without pur

Bill of Rights, $ 10, declares that justice by either of the parties and controverted by chase, completely and without delay, and that the other. Woodward v. Oregon R. & N. Co., every man shall have remedy by due course of Woodward v. Oregon R. & N. Co.

, | law, etc., to the end, as the preamble declares, 18 Or. 289, 22 Pac. 1076; Buchtel v. Evans, that justice be established, order maintained, 21 Or. 309, 28 Pac. 67; Coos Bay R. R. Co. and liberty perpetuated. Const. art. 7, § 1, prov. Siglin, 26 Or. 387, 38 Pac. 192.

vides that the judicial power of the state shall The darkness has been adverted to by be vested in the Supreme Court, circuit courts, way of argument and to explain that as no Supreme Court shall consist of four judges, to

a light on the engine or employé's lantern was be chosen in districts by the electors thereof, visible to the plaintiff, when she attempted and that the number of districts may be into cross the track, it was necessary that she population of the state shall amount to 100,

creased, but shall not exceed five until the white should have heard the ringing of the bell. As 000, and shall never exceed seven. Section 10 the requested instruction was faulty in not provides that, when the white

white population specifying that fact, no error was committed may provide for the election of supreme and

amounts to 200,000, the legislative assembly in refusing to give it.

circuit judges in distinct classes, one of which It follows from these considerations that classes shall consist of three judges of the Suthe judgment should be affirmed, and it is so preme Court, who shall not perform circuit

duty, and the other class shall consist of the ordered.

necessary number of circuit judges, etc. Held, that in view of the rule that a state Constitution is a limitation and not a grant of power, and that prohibitions must be strictly stated,

and in view of the fact that section 10, Bill of STATE v. COCHRAN.

Rights, would ultimately require more than five (Supreme Court of Oregon. Dec. 21, 1909.)

circuit and three supreme judges to dispense

justice, if such a number were required by a 1. COURTS ($ 205*)-SUPREME COURT—JURIS- population of 200,000, article 7, § 10, must be


reach the population requiring a separation inThe Supreme Court will take jurisdiction to distinct classes, the number of supreme judgof a collateral attack on the constitutionality es should begin with three and no less, leaving of the offices of certain of its members.

the additional number to be determined under [Ed. Note. For other cases, see Courts, Cent. the future conditions as they might arise. Dig. § 495; Dec. Dig. § 205.*]

[Ed. Note.-For other cases, see Courts, Cent.


OF JUDGES-CONSTITUTIONAL PROVISIONS. In construing the Constitution, its object A determination that the state had reached and purpose must be considered, and it must that stage of advancement where more members not be interpreted on narrow or technical prin- of the Supreme Court had become essential to ciples, but on broad general lines, that it may the carrying out of the purposes of the Conaccomplish the object intended, and the pre- stitution as expressed in its preamble, and in sumption and legal intendment is that each and section 10, Bill of Rights, resting with the legevery word, clause, and sentence in a written islative assembly only, Laws 1909, p. 99, C. Constitution has been inserted for some useful 50, declaring such an emergency, and increaspurpose, so that it must be construed as a ing the number of judges from three to five, was whole.

constitutional. [Ed. Note. For other cases, see Constitu- [Ed. Note.–For other cases, see Courts, Cent. tional Law, Cent. Dig. $ 10; Dec. Dig. § 13.*] | Dig. & 164; Dec. Dig. $ 42.*]


On motion to affirm judgment, and for ruary 12, 1909, by the Governor appointed rehearing. Motion denied.

justices of this court, took their oaths of For former opinion, see 104 Pac. 419. office, and, in the manner provided by the

In support of motion, in the first instance, act, entered upon their duties, and have at appeared A. M. Crawford, Atty. Gen., and J. all times since been acting in that capacity, H. Page, Dep. Dist. Atty. In opposition recognized as such by their associates, as there was a brief over the names of Thos. well as by the executive, and all other deO'Day, for appellant, and Martin L. Pipes, partments and officials of the state, includamicus curiae. In opposition to the motion ing the Attorney General and district attorthere was a brief, amici curiæ, over the neys, as well as by all other counsel having names of the following counsel: A. E. Clark, business before this court. Chas. H. Carey, S. B. Linthicum, M. G. Mu

The former opinion in this cause, being ley, Dan J. Malarkey, John F. Logan, W. w. the one giving rise to this controversy, was Cotton, Platt & Platt, John P. Kavanaugh, prepared by Mr. Justice King and concurred James B. Kerr, S. B. Huston, Bauer & in by Mr. Justice Slater and by the writer Greene, Arthur C. Spencer, Veazie & Veazie, of this opinion, but dissented from in an John H. Hall, Franklin T. Griffith, Alex opinion by Mr. Justice Eakin, in which disBernstein, D. Solis Cohen, C. M. Idleman, sent Mr. Chief Justice Moore concurred. See Cole & Cole, W. T. Muir, Ralph W. Wilbur, 10+ Pac. 419. By the motion, and argument Kollock & Zollinger, Graham, Cleeton & in its support, it is insisted that the lawfully Davis, Roger B. Sinnott, Harrison Allen, constituted court consists of Chief Justice Schuyler C. Spencer, Ralph E. Moody, Rus- Moore, Justice Eakin, and the writer, who sell E. Sewall, Milton W. Smith, Conley & hold their respective offices under laws in De Neffe, William Brewster, w. C. Benbow, force prior to the act brought in question, John Manning, W. E. Thomas, Jerry Bro- by reason of which it is contended that Chief naugh, Gus C. Moser, John C. McCue, John Justice Moore and Mr. Justice Eakin conH. Stevenson, W. W. Banks, Chas. J. Schna- stitute a majority of the legally constituted bel, W. P. La Roche, Allen R. Joy, J. H. Mid- court, and that their opinion should be treatdleton, McAllister & Upton, John A. Collier, ed as the majority opinion, and the majority H. E. Collier, A. C. Emmons, J. Frank Shel- opinion as filed be deemed a dissenting opinton, James McCain, Frank W. Fenton, W. T. ion only. Vinton, B. A. Kliks, Joseph E. Hedges, E.

A peculiar situation confronts us at the B. Tongue, C. A. Hardy, John A. Carson, very threshold of this proceeding. The moW. H. Holmes, W. M. Kaiser, N. L. Butler, tion is not addressed to those members of Oscar Hayter, J. E. Sibley, Gale S. Hill, this body, who, it is claimed by the plainWalter L. Tooze, Jr., W. R. Bilyeu, J. K. tiff, are the constitutional judges, but is adWeatherford, Percy R. Kelly, J. J. Whitney, dressed to the court, consisting de facto of W. S. McFadden, J. F. Yates, E. R. Bry- five persons; each claiming to be a justice. son, E. E. Wilson, Ed Horgan, George Den-If the three first named are to pass on the man, J. A. Buchanan, W. Lair Thompson, question in the collateral and indirect manA. S. Bennett, C. E. Woodson, Stephen A. ner in which it is presented, they must say Lowell, J. P. Winter, Roscoe R. Johnson, to Justices King and Slater: “Gentlemen, Turner Oliver, William Miller, J. L. Rand, we are the legitimate justices of this court, J. N. Hart, M. L. Olmsted, Samuel White, and you are intruders. You will therefore James R. Nichols, Brooke & Tomlinson, R. retire, while we proceed to

retire, while we proceed to discuss the quesG. Wheeler, G. W. Hayes, C. H. Leonard, tion as to whether three or five justices C. L. McNary, and John H. McNary. In constitute our legitimate membership.” In reply, supporting the motion, there was a other words, we would thus be required to brief over the names of A. M. Crawford, decide the merits of the controversy before Atty. Gen., Geo. J. Cameron, Pros. Atty., the hearing. Or if all five of the justices J. H. Page, Dep. Pros. Atty., and A. King sit at the hearing, and one of them should Wilson, for respondent.

agree with Justices King and Slater that the

decision in State V. Cochran was properMCBRIDE, J. The Attorney General and ly rendered by a constitutionally organized one of the deputy district attorneys for Mult- court, the question attempted to be raised nomah county, on behalf of the plaintiff, on this motion would still be unsettled, for, by a motion calling for the issuance of a unless all three of the justices, excepting mandate affirming the judgment of the tri- King and Slater, concurred in condemning al court in the above cause, seek to ques- the constitutionality of the act, a majority tion the constitutionality of chapter 50, p. 99, of the court de facto would be in favor of Laws 1909. This act increases the number its validity, and the matter would resolve of justices, comprising this court, from three itself into a struggle as to who would be to five, and provides for the immediate ap- recognized by the officers of the court and pointment by the Governor of two justices, the state officials. However, the gentlemen, in addition to those already in office, to whose tenure of office is indirectly attacked hold until their successors are elected and by this motion, have seen fit to submit its qualified. Under its provisions Mr. Justice decision to that part of the membership of son of which the contingencies here suggest Judicial power presupposes an established ed will not actually arise; but the fact that government capable of enacting laws and they might properly so arise furnishes some enforcing their execution, and of appointing justification for the theory, which we think, judges to expound and administer them. in view of a precedent (to which we will The acceptance of the judicial office is a later refer) of this court, it is unnecessary to recognition of the authority of the governadopt, that the question here presented be- ment from which it is derived; and, if the longs to the domain of legislation rather authority of that government is annulled than judicial determination, or at least that, and overthrown, the power of its courts and in the manner here presented, it is not prop- other officers is annulled with it; and if a erly before the court.

state court should enter upon the inquiry If the question were before the court for proposed in this case, and should come to the first time, we might hesitate to pass up- the conclusion that the government under on it, especially in the form here introduced. which it acted, had been put aside and disThe points presented have seldom arisen in placed by an opposing government, it would this country; but there is respectable au- cease to be a court, and be incapable of thority to the effect that they are political, propouncing a judicial decision upon the and therefore not subject to review by the question it undertook to try. If it decides courts, and, notwithstanding the views to at all as a court, it necessarily affirms the follow, we deem it not inappropriate at this existence and authority of the government time, before proceeding with a discussion of under which it is exercising judicial power.” the merits, to call attention to the opinions In the case of Brittle v. People, 2 Neb. of some other courts relative thereto.

198, the right of a colored man to sit upon In the case of Luther v. Borden, 7 How. a jury was questioned, the outcome of which 1, 12 L. Ed. 581, a similar question was depended upon whether or not the Constituraised. In that case the people of the state tion of Nebraska was in force, in considerof Rhode Island had become dissatisfied with ing which Mr. Justice Crounse, at page 214 their government. Rhode Island, when it of 2 Neb., speaking for the court, after disentered the Union, did not adopt a Consti- cussing the principles thereby involved, said: tution, but continued its government under a "This, then, is the legitimate conclusion, faircharter received from Charles II. Its Legis- ly stated as I believe, that must or may lature, under the charter government, de- follow from any attempt on our part to treat layed, or refused to authorize by law, the as judicial those questions which are solely calling of a constitutional convention to political. We are not only able to destroy adopt a new Constitution. A number of its an entire state government, but, at the same citizens, claiming to be a majority, as- time, present the singular spectacle of a sembled, and, holding a constitutional con- court sitting as a court to declare that we vention, and subsequently, an election un-are not a court.” der the Constitution there adopted, elected In Re Ah Lee (D. C.) 5 Fed. 899, 908, the executive, legislative, and judicial officers, court had under consideration some of the and pretended to go into operation as a full-provisions of the Constitution here involved. fledged government. The existing govern- It was a habeas corpus proceeding, and there ment resisted this as an insurrection and argued that the circuit as well as supreme declared martial law, arresting the movers judges were not de facto officers. The conthereof and imprisoning them. In a casetention was stated (and the same point is involving the authority of the charter gov- urged here) by the court as follows: "That ernment to make these arrests, it was con- a person cannot be considered an officer de tended that the new government was at the facto unless the office he is said to be in time the legitimate government, and that legally exists, and, there being no such ofthe charter government had been superseded. fice as circuit judge or judge of the circuit Afterwards the charter government called court established by the Constitution, the a constitutional convention, adopted a Con-person who acted as judge on the trial of stitution, and instituted courts thereunder. the petitioner in the court below was not Before one of these courts, so instituted by even a de facto judge.” It will be rememthe charter government, the contention was bered that the original Constitution did not made that the very government from which create the office of circuit judge as such, it held its commission was not the legiti- but the Supreme and circuit courts were mate government at the time of the acts created, which were to be filled by the referred to. If such a contention could be justices as there designated. The court anmade in that court, necessarily the effect of swered the question, stated in the above the decision would have been to invalidate language, as follows: "As to the third point, the authority of the government, and, ac- it is sufficient to say that the Constitution cordingly, the court trying the cause. Con- in effect creates a circuit court in each councerning that question the Supreme Court ty to be held by a justice of the Supreme of the United States, at page 40 of the opin- Court or a circuit judge, as the case may be, ion in 7 How. (12 L. Ed. 581), say: "Indeed, and such court is the office of the judge who we do not see how the question could be holds it. A circuit judge's office is the cir

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