Opinion of the Court.

Section 1d of Article II is as follows: "Laws providing for tax levies, appropriations for the current expenses of the state government and state institutions, and emergency laws necessary for the immediate preservation of the public peace, health or safety, shall go into immediate effect. Such emergency laws upon a yea and nay vote must receive the vote of two-thirds of all the members elected to each branch of the general assembly, and the reasons for such necessity shall be set forth in one section of the law, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon: The laws mentioned in this section shall not be subject to the referendum."

The relator contends that the act under which he is claiming title to the office is one providing for tax levies, and comes within the exceptions mentioned in Section 1d, supra.

Sections 5649-2 and 5649-36 comprise the act which the relator designates as "a law providing for tax levies." This act, by Section 5649-2, imposes a limitation upon the aggregate amount of all taxes that may be levied, and the other section in said act creates the budget commission.

The general assembly did not, in this act, impose a tax, stating distinctly the object of the same, nor did it fix the amount or the percentage of value to be levied, nor did it designate persons or property against whom a levy was to be made. It merely imposed certain limitations and created an agency. The act cannot be said to be one "providing for tax levies," within the meaning of those words as used in Section 1d of Article II

Syllabus.

of the Constitution. It is, therefore, clearly subject to the referendum and cannot become effective until ninety days after it was filed in the office of the secretary of state.

The validity of this act is challenged. It is unnecessary to consider this in determining the rights of the relator in this case as in no event could he claim title to the office in question until ninety days after May 9, 1913.

Writ refused.

SHAUCK, C. J., JOHNSON, DONAHUE, WANAMAKER, NEWMAN and WILKIN, JJ., concur.

THE BALTIMORE & OHIO RAILROAD COMPANY v. FOUTS.

Master and servant-Personal injury-Engineer of train not guilty of negligence-In misinterpreting signal by conductor, when.

A conductor of a train of cars undertook to control the movement of his train by a signal to the engineer from a place on the train where he could not see the engineer and the engineer could not see more of him than his head and his hand rising and falling beside his head. The signal was a backward motion of the arm in a complete vertical circle about the shoulder as a center. This could have been given as easily from a place where the body and the whole circuit of the arm of the conductor could have been seen by the engineer, and the rule of the service required that the conductor put himself in plain view of the engineer when giving the signal. The movement of the hand up and down toward the engineer in a short arc means "go ahead." The engineer interpreted the signal as given to mean "go ahead" instead of "back up." Held: This was not negligence on the part of the engineer.

(No. 13429-Decided March 18, 1913.)

ERROR to the Circuit Court of Mahoning county.

Statement of the Case.

Fouts was conductor and one Barnes was engineer of the company's eastbound freight train. At 1 o'clock on the 3rd day of October, 1908, the train came to a switch, where it was cut in two for the purpose of drawing two cars out of the siding. There were ten or twelve cars in the forward section attached to the engine, and it was drawn forward till the end passed the switch points. The brakeman threw the switch to let the forward section back into the siding. Fouts got upon the deck of the last car at the rear end. He gave the back-up signal and put himself in position for the backward motion. The engineer could see only the upper part of the sign and took it for a go-ahead signal and moved the train forward, which threw the conductor backward off the car to the ground, and both bones of his right leg were broken so that it had to be amputated below the knee. He sued the company for damages, alleging that the engineer negligently interpreted his back-up for a go-ahead signal. The affirmative defense was that Fouts violated a rule of the company by giving the sign where he could not see the engineer and the engineer could not see him, and that the small part of the signal which was visible above the deck line of the first car indicated an opposite signal.

The jury awarded him $7,500 damages. Motion for a new trial was overruled and judgment was entered on the verdict, and the circuit court affirmed the judgment. Error is assigned here, amongst others, that the verdict is not sustained by any evidence, and that the verdict and judgment should have been against Fouts upon the undisputed facts.

Opinion of the Court.

Messrs. Arrel, Wilson, Harrington & De Ford, for plaintiff in error.

Mr. D. F. Anderson, for defendant in error.

WILKIN, J. The controversy is between two employes of a railroad company. The question is, Which one was negligent, the one who gave or the one who received a signal?

1. What was the signal? The signal is given by a motion of the arm up and down in a plane perpendicular to and in a line with the track; if it be a back-up signal, the motion will be directed away from the engineer and describe a circle; if it be a go-ahead signal, the motion will be toward the engineer, up and down, and the arm will describe only a quadrant or less of a circle, not a complete circle. The motion may be by the arm from the shoulder as the center or by the hand from the wrist as the center. The former is called the arm movement, the latter the wrist movement. It is manifest that the significance of the signal is determined by the direction of the motion, if not enough of it is seen to make out a circle.

It is conceded that the track was straight, the day was clear and that the conductor, Fouts, standing on the top of the rear end of the last car, was between five and six hundred feet distant from the engineer, who was standing in his cab with his head out of the side window looking back (west) for a signal. It is not disputed that the deck line of the car next to the engine was about four feet higher than the head of the engineer,

Opinion of the Court.

and that only the head of the conductor appeared above that line, to the vision of the engineer. In this situation Barnes saw the head of a man in the sky; he could not tell who he was, for he says he could not discern the features; and that fact is not denied but is confirmed by Fouts, who says he could not see Barnes at the cab, although Barnes was looking against the light and Fouts was looking from the light.

Fouts testified that he gave the circular sign by the arm movement to back up. Barnes testified that he saw only the wrist movement as a goahead signal. By the very nature of the case and the situation of the two men, their statements are not contradictory, for all that Barnes could see of the circle above the roof line of the car next to him, if Fouts gave the arm movement, would be but a small arc of the circle; Fouts' hand would be seen against the bright afternoon sky rising and falling in the plane of Barnes' vision. Nobody has said and nobody can say that the direction of the circular motion would be apparent to him in an arc so short; it could not be more than one-quarter of the circle.

His

Consequently his testimony is the only evidence as to the signal which he received, no matter what the form of the signal which was given. statement of what he saw, not only has not been contradicted but is not impaired by the testimony or the circumstantial evidence in the case. Granted that the motion of the hand in the arc was a movement backward and not simply up and down, we are not concerned with that fact at the end of the train, but with another fact in the cab of the