Presumptive evidence.

85 (affirmed, upon the reasonings of the circuit court without further report, Ott v. Railway, 62 O. S. 661).

The rules of evidence are those of Ohio, if the action is brought in its jurisdiction: Pennsylvania Co., v. McCann, 54 O. S. 10, (affirming Pennsylvania Co. v. McCann, 10 O. C. C. 139, 6 O. C. D. 610).

SECTION 9017. Every railroad company operating a railroad which in whole or part is within this state shall be liable for all damages sustained by any of its employes by reason of personal injury or death of such employe:

I.

When such injury or death is caused by a defect in any locomotive, engine, car, hand-car, rail, track, machinery or appliance required by such company to be used by its employes in and about the business of their employment, if such defect could have been discovered by reasonable and proper care, tests or inspection. Proof of such defect shall be presumptive evidence of knowledge thereof on the part of such company. An employe of such railroad company who is injured or killed as a result of such a defect, shall not be deemed to have assumed the risk occasioned thereby, although continuing in the employment of the company after knowledge of the defect; nor shall continuance in employment after such knowledge by an employe be deemed an act of contributory negligence.

2. While such employe is engaged in operating, running, riding upon or switching passenger, freight or other trains, engines or cars, and in the performance of his duties, and when such injury was caused by the carelessness or negligence of any other employe, officer or agent of such company, in the discharge of or for failure to discharge his duties as such. (99 v. 25 § 1.)

A section boss on a railroad and his crew took a handcar to go from Reed's mill to a switch about one-half mile east, where they would go from the main track upon a second track on their

way to work. A passenger train which should have passed that

point one and one-half hours before was behind time. It overtook and running into the handcar, killed one of the section men. The foreman did not know and had no reason to believe that the train had not passed and did not send to or go to the telegraph office, which was one mile distant, to ascertain about the passenger train. The deceased did not know of the whereabout of the belated train, although he had the same opportunity of knowing as the foreman. There was no carelessness in the running of the train. It was held that the railroad company could not be required to respond in damages to the representatives of the deceased, as he voluntarily and without protest mounted and rode upon the handcar: Railway v. Leech, 41 O. S. 388.

Paragraph 2 of this section may be applied in an action for damages, brought under G. C. 10770 for the wrongful death of an engineer alleged to have been due to a defective engine and a defective track: Railway v. Francis, 13 O. C. C. (N. S.) 167, 22 O. C. D. 189 (affirmed, without report, in Railway v. Francis, 83 O. S. 520).

The state railway employers' liability act is unconstitutional as to all roads which are located in part in this and in part in another state; but the provisions of the act are separable, and as to roads which are wholly within the state the act is valid: Flemm v. Railway, 10 O. N. P. (N. S.) 273.

A railway company which employs a minor as a section hand without the consent of his parents is not liable to such parent for the death of such minor caused from injuries received while boarding a passing freight train, such act being in no way required by his employment: Giles v. Railway, 21 O. D. (N. P.) 285.

tributory negligence no bar to recovery.

SECTION 9018. In all actions hereafter brought against Slight cona railroad company operating a railroad in whole or part within this state, for personal injury to an employe or where such injuries have resulted in his death, the fact that he was guilty of contributory negligence shall not bar a recovery when such negligence was slight and that of the employer greater, in comparison. But the damages must be diminished by the jury in proportion to the amount of negligence attributable to such employe. All questions of negligence and contributory negligence shall be for the jury. (99 v. 25 § 2.)

The state railway employers' liability act is unconstitutional as to all roads which are located in part in this and in part in another state; but the provisions of the act are separable, and as to roads which are wholly within the state the act is valid: Flemm v. Railway, 10 O. N. P. (N. S.) 273, 21 O. D. (N. P.) 152.

SECTION 9019. No officer, agent, or employe of a com- How railroad pany operating a railroad, except the superintendent, general scrap metal managing agent or a receiver of the company, may sell or dispose of worn or scrap metal, iron, brass, or other metal owned by it. All sales and barter of such scraps or other metals made by any other officer, agent, or employe shall be null and void. No such superintendent, managing agent, or receiver shall sell or dispose of such scrap or other metals in quantities less than one ton, nor without delivering to the purchaser a bill of sale thereof, a copy of which shall be retained and filed in the office of such superintendent, agent, or receiver. (R. S. § 3357.)

section.

SECTION 9020. If a superintendent, managing agent, or Violation of receiver of a company sells or disposes of railroad scrap preceding metal in quantities less than one ton, or without delivering a bill of sale thereof to the purchaser, the company which he represents shall not thereafter be entitled to the benefit of the next three succeeding sections. (R. S. § 3358.)

SECTION 9021. The person, company, or firm to whom is offered for sale, pledge, or trade, worn or used links, pins, journal-bearings, or other worn, used, detached appendages of railroad equipment, or scrap metal of iron, brass, or steel appertaining thereto, or to a railroad track, before purchasing or dealing in it shall ascertain whether the ownership thereof is lawfully derived, by bill of sale, or otherwise, from a company, or the superintendent, managing agent or receiver thereof. When the right or title to such article of metal is drawn in question, in any suit, the person, company or firm dealing therein, his or its assignee, party thereto, must make prima facie proof of title and ownership so derived. (R. S. § 3359.)

Evidence of

title of

scrap.

When mix

ture deemed a confusion.

SECTION 9022. If it appears prima facie, from the evidence on the trial, that any of the articles or metals in controversy were unlawfully obtained, and mixed or confused with other scrap metal, it shall be deemed a confusion of goods, unless the party claiming against the title of the company establishes, prima facie, a lawful title from or through a railroad company to the residue. (R. S. § 3360.)

Company may SECTION 9023. By its proper officer or agent, or the rereplevy scrap. ceiver thereof, a company may claim to be the general owner of, and replevy any of the metals or articles mentioned in section ninety hundred and twenty-one, and metals with which they may have been confused, found in the possession of a person, firm or company, when there is good reason to believe that such metals or articles were unlawfully taken from a railroad company or its receiver. Instead of the usual averment as to ownership, in the affidavit for a writ of replevin, it shall be sufficient for the officer or agent of such company or the receiver, to aver that he believes such metals or articles were unlawfully taken from such company or some other company. The person, firm or company claiming in such action, the right or title to such metals or articles, prima facie shall prove a right or title thereto, lawfully derived as hereinbefore provided. In the absence of such proof, the company or receiver claiming such metals or articles shall be held to be the general owner thereof; but any other company or receiver, upon showing that part of such metals or articles unlawfully were taken from it or him, shall be entitled to such part, upon payment of a proper share of the cost and expenses of replevying it. (R. S. § 3361.)

Liability of

company or receiver.

SECTION 9024. If a company, or its receiver, replevies property under the next preceding section without reasonable cause to believe that it was unlawfully taken from some company or its receiver, such company or receiver shall be liable to the party entitled thereto, in any sum not exceeding double the value of the property so replevied, in addition to such damages as such party sustains thereby. (R. S. § 3361.)

panies may

consolidate.

SECTION 9025. When the lines of road or railroad When comcompanies, in this state or any portion of such lines have been or are being so constructed as to admit the passage of burthen or passenger cars over any two or more of such roads continuously, without break or interruption, such companies may consolidate themselves into a single company. (R. S. § 3379.)

Consolidation of street railroads, see G. C. 9137.
See, also, G. C. 9026.

Applied, cited, construed and referred to: State, ex rel., v. Hamilton, 47 O. S. 52; Ashley v. Ryan, 49 O. S. 504 (affirmed in Ashley v. Ryan, 153 U. S. 536, 8 O. F. D. 215); State, ex rel., v. Railway, 1 O. C. C. (N. S.) 145, 14 O. C. D. 609; Railway v. Railway, 6 O. C. C. (N. S.) 537, 15 O. C. D. 705; Railroad v, Railway, 1 O. N. P. (N. S.) 577, 15 O. D. (N. P.) 795.

Two railroad companies owning lines of railroad connected only by other railroads which such companies hold by lease, are not authorized to become consolidated into one corporation, under this section: State v. Vanderbilt, 37 O. S. 590.

The lines of two railroad companies which are in their general features parallel and competing, can not be connected for the carriage of freight and passengers over both "continuously," within the meaning of this section; and hence such companies can not become consolidated into one corporation under this section: State v. Vanderbilt, 37 O. S. 590.

Two railways which are connected by the lines of a union railway which is owned in part by each of the parties to the consolidation, may consolidate: Burke v. Railway, 10 Dec. Rep. 525, 22 Bull. 11.

After consolidation is completed by filing a certificate with the secretary of state, the new corporation thereby created can succeed to the rights, powers, and franchises of the original corporation only by operation of the statute, which provides for such succession only upon the election of the first board of directors of the new corporation: Railroad v. Brown, 26 O. S. 223.

A new corporation in an action on a subscription to the capital stock of the original corporations, must show its succession to the rights of its predecessors upon an election of a board of its own directors: Railroad v. Brown, 26 O. S. 223.

The effect of the Ohio consolidation act is to merge the old companies into the new one, which takes their place, succeeds to their property and assumes their liabilities: Railway v. Ham, 114 U. S. 587.

A corporation formed by the consolidation of two or more companies holds its property acquired by such consolidation in its own right, and not in trust for the constituent companies; and accordingly the remedy to enforce such debt is by execution and judgment against the new corporation and not by creditors' bill: Greene v. Railway, 62 O. S. 67. Consolidated railroad companies, organized in pursuance of the act of April 10, 1856 (53 v. 143) are corporations formed under a general law, within the meaning No. 2. Art. XIII, of the constitution of 1851, and as such are subject to the limitations and reservations contained in that section, and in No. 2, Art. I, of that instrument, and the general assembly has power to alter and regulate rates of fare chargeable by such companies Shields v. State, 26 O. S. 86 (affirmed in Shields v. State, 95 U. S. 319, 4 O. F. D. 471).

This case was affirmed by the supreme court of the United States in Shields v. State, 95 Ú. S. 319, 4 O. F. D. 471, upon the ground that the consolidation of two or more corporations under the Ohio statutes operates as a dissolution of the original corporations on the ground of a new corporation, the powers and franchises of which, by the provision of Art. I, No. 2, of the Ohio constitution, may be altered, revoked or repealed; and accordingly a subsequent statute prescribing the rates which such new corporation may charge, does not impair the obligation of contract, although such statute could not have been enforced as against one of the original corporations if it had continued to exist as such.

Consolidation does not discharge the lien of a duty recorded mortgage; even if it is not known by either the original corporation or the new corporation that bonds secured by mortgage are outstanding. Railway v. Lynde, 55 O. S. 23.

The property of the new corporation is not subject to any lien in favor of bonds by one of the component companies, issued after the statute authorizing the consolidation, unsecured by any mortgage or lien before consolidation, and the holders of which have not exchanged or offered to exchange them for bonds of the consolidated company before the proceedings for foreclosure: Railway v. Ham, 114 U. S. 587.

It is a condition precedent to the right to enter into an agreement for consolidation that the lines of road of the contracting corporations be first made, or be in process of construction (see G. C. 9026); and a conditional subscriber, who had no knowledge of the progress of consolidation, and in no way contributed thereto, may, in an action by the new company as successor to the old, to recover the amount of his subscription, dispute the corporate existence of the plaintiff on the ground that at the date of the agreement to consolidate, the road of the company, to the stock of which he had subscribed, was neither made nor in process of construction: Railroad v. Stout, 26 O. S. 241.

That a railway which has not been constructed and is not in the process of constructions, can not consolidate, see, also, Trust Co. v. Railway, 9 Dec. Rep. 773, 17 Bull. 175.

Where railroad companies consolidated, the new corporation thereby created may perform the conditions named in subscription to the capital stock of the original companies, and it may also, by performance of the conditions, accept a continuing conditional offer to subscribe such stock: Railroad v. Stout, 26 O. S. 241.

Where a general requisition is duly made by a railroad company during the pendency of consolidation proceedings, for the payment of subscriptions to its capital stock in monthly installments, and the consolidation becomes complete before all the installments