*306 64 28 SUPREME COURT REPORTER. car bound north, which did not come to a We If, upon these facts, reasonable men might fairly reach the conclusion that the plaintiff, while herself in the exercise of due care, was injured by the negligence of the defendant, the case should have been submitted to the jury. Warner v. Baltimore & O. R. Co. 168 U. S. 339, 42 L. ed. 491, 18 Sup. Ct. Rep. 68. That the plaintiff was injured by being hit by the car running north does not admit of doubt. need not delay at that point, but may proceed at once to the other aspects of the case. The plaintiff had come to a place The defendant had where passengers had habitually boarded the defendant's cars. between encouraged and invited persons to enter its space cars going south from the the tracks, by opening the doors and receiving them from that side. It was a place which, in itself, was perfectly safe, unless made otherwise by the manner in which the defendant used the east track for the pasThe plaintiff, therefore, was sage of cars. not a trespasser nor a mere traveler upon the highway. It is not important to determine whether she had become a passenger. Intending to become a passenger, she had come to a place recognized by the practice of the defendant as a convenient and suitable one from which to enter the car, and the car stopped to receive her. The defendant owed her an affirmative duty. It was bound to use that care for her protection which was reasonably required in view of the situation in which she had, at the defendant's invitation, placed herself, of the rails of the two tracks was 7 feet, 10 inches. The steps of the cars projected 2 feet, 2 inches beyond the tracks, leaving, when two cars passed each other at this point, a clear space between them of 3 feet, 6 inches, so that, as one of the plaintiff's witnesses said, "there was ample room to stand if you were thinking what you were doing." The platform extended 30 feet lengthwise along the tracks. It consisted of boards laid on the ground and sleepers and parallel with the tracks. It covered the space between the tracks and the rails of the tracks and the width of two boards beyond the outside tracks. A road ran west of and near the tracks. West of the tracks there was "a kind of sink," and those boarding the cars for Washington from that side had "to stand out in the mud or in that hole to get on the car." The cars to Washington ran on the west, and the cars from Washington ran on the east, track. It was the custom of persons taking the Washington car to board it from the east side, standing on the platform between the tracks, and the doors of the cars were opened to receive them from that side; sometimes, however, such passengers entered from the west side. The purpose for which the platform was originally constructed was not shown, but it was used in the manner stated and for the passage of persons and vehicles. One standing on the platform at this point could see or be seen for a distance of at least a quarter of a mile north or south. On the evening of September 29, 1900, the plaintiff came to this place to take the car for Washington. The hour was not stated, but it was light enough to recognize a person a hundred yards away. The plaintiff testi-purpose for which she was there, of the apfied that she remembered nothing from the time she left her house until she recovered consciousness in the hospital; but from other testimony it appears that, as the car for Washington approached from the north, she went to the platform and stood between the tracks. There were other persons intending to take the car, one of whom stood near her and also between the tracks. the car for Washington came from the came north, another of defendant's cars from the south. The Washington car slowed down and came to a stop just as the latter car, without stopping, ran by "at a rapid rate of speed," as one witness said, or "12 to 15 miles an hour," as another witness said. No one saw exactly what happened to the plaintiff, who was standing near the north end of the platform, but the sound of "a shock" was heard, and the plaintiff was found unconscious between the tracks, 10 or 15 feet north of the north end of the platform. It may be inferred that she was struck by the rapidly passing As proach of the car which she was intending We think, as the court of ap be the sole cause of the resulting injury. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 35 L. ed. 270, 11 Sup. Ct. Rep. 653; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 429, 36 L. ed. 485, 493, 12 Sup. Ct. Rep. 679; Washington & G. R. Co. v. Harmon (Washington & G. R. Co. v. Tobriner) 147 U. S. 571, 583, 37 L. ed. 284, 289, 13 Sup. Ct. Rep. 557; Tuff v. Warman, 5 C. B. N. S. 573; Radley v. London & N. W. R. Co. L. A. 1 App. Cas. 754; Thomp. Neg. 2d ed. §§ 238, 239; Pollock, Torts, 6th ed. pp. 441 to 447, inclusive. peals held, that from the evidence the jury | such care, that failure might be found to might have found that the defendant was negligent. The question whether the plain tiff herself was guilty of contributory negligence presents somewhat greater difficulty. There was room to stand between the two cars and escape contact with either. But the margin of safety was narrow and left little allowance for the infirmities of mankind. In the confusion of two cars approaching from opposite directions it is too much to expect nice calculations of distances. It is not to be wondered at that in the attempt to escape the one the plaintiff fell foul of the other. The same witness (himself standing on the platform between the tracks) who said that "there was ample room to stand if you were thinking about what you were doing" also said: "I realized that I would have to hold myself strictly in the center of the two tracks." We think that the plaintiff, if she was rightly where she was, was not, as a matter of law, guilty of negligence in failing to appreciate accurately the boundaries of the THOMAS POLK, William I. Moody, James The judgment is reversed and the case remanded to the Court of Appeals, with directions to reverse the judgment of the Supreme Court of the District of Columbia, and remand the cause to that court with a direction to set aside the verdict and award a new trial. L. Long, et al., V. (207 U. S. 310) MUTUAL RESERVE FUND LIFE ASSO- Constitutional law-impairing contract the consent of the members, because such bilities as if they were one-year term insurance at the ages attained. Constitutional law-impairing contract obligations-reserved right to repeal narrow zone of safety which the defendant's conduct had left to her. The 3 feet, 6 inches width of the clear platform cannot fairly be considered without taking into account the dangers which infested the borders upon each side. A platform which would be wide enough for a child to walk in safety from the base of the Washington 1. Contract obligations between an assomonument to the steps of the Capitol, if ciation insuring lives upon the co-operative elevated to extend from the summit of one plan and its members are not unconstituto the dome of the other, would imperil the tionally impaired by the reorganization of passage of the man of steadiest nerve. Nor such association as a mutual level premium was the plaintiff necessarily wanting in company, pursuant to N. Y. Laws 1901, due care by taking her place between the chap. 722, under a new name and without tracks. It was the usual place from which statute provides that outstanding assessentrance to the Washington car was made.ment contracts shall be appraised as liaIt was safe enough under ordinary circumstances. It was made unsafe only by reason of the defendant's negligent act in running another car rapidly by. The plaintiff had the right to assume that the defendant would not commit such an act of negligence, and that, when it stopped one car and thereby invited her to enter it, it would not run another rapidly by the place of her entrance and put her in peril. We think that it cannot be said, as a matter of law, that the plaintiff was guilty of contributory negligence. That issue, with the others in the case, should have been submitted to the jury with appropriate instructions. Nor is it clear that, even if the plaintiff was not free from fault, her negligence was the proximate cause of the injury. If she carelessly placed herself in a position exposed to danger, and it was discovered by the defendant in time to have avoided the injury by the use of reasonable care on Its part, and the defendant failed to use 28 S. C.-5. or amend. 2. The power to amend or repeal, reserved by the state Constitution in force when an association insuring lives upon the co-operative plan was incorporated under general law, will sustain, as against an objection founded on the contract clause of the Federal Constitution, so much of N. Y. Laws 1901, chap. 722, as authorized the reorganization of such association under a new name as a mutual level premium company without the consent of the members, although the association may have been insolvent and the scheme of reincorporation may have been devised, and legislation authe intent to defraud the members. thorizing it procured, by its officers with Constitutional law-due process of law. 3. Vested rights, privileges, or property rights of the members of an association insuring lives upon the co-operative plan are 608. *311 not taken without due process of law by | Certain Lawful Purposes." The original the reorganization of such association as a certificate of incorporation stated the obmutual level premium company, pursuant to jects and business of the company to be N. Y. Laws 1901, chap. 722, under a new "the mutual benefit of ourselves and all name and without the consent of the members. others who may become members of the society, by providing benefits for families and others dependent upon such members by means of voluntary contributions to meet [No. 45.] Argued November 11, 1907. Decided De- exigencies occurring from time to time, and cember 2, 1907. N A CERTIFICATE from the United to provide a fund for the common and exclusive benefit of all members." In 1883 the association reincorporated under chap 0 States Circuit Court of Appeals for ter 175, Laws of 1883, entitled "An Aha to the Second Circuit presenting questions as to whether contract obligations were impaired or due process of law denied by the reorganization of an association insuring lives upon the co-operative plan as a mutual level premium company, under a new name, and without the consent of the members. Answered in the negative. Statement by Mr. Justice Moody: In this case the circuit court of appeals for the second circuit certified certain questions of law upon which it desired instruction. Such part of the statement accompanying the questions as we find material and the questions themselves follow: The above-named appellants filed their bill in equity in the United States circuit court for the southern district of New York, praying for the appointment of a receiver of both defendants, the winding up of both defendants, an accounting to ascertain the interest of complainants and all other policy holders of Mutual Reserve Fund Life As sociation in the assets of Mutual Reserve Life Insurance Company, and the marshaling and distribution of said assets. A final decree was entered by the circuit court sustaining a demurrer of the defendant to the amended bill of complaint and dismissing the bill. From that decree the complainants have appealed to this court. The amended bill of complaint alleges the existence of the following facts: The complainants became members and policy holders of the said association respectively on various dates from 1886 to 1900. The policy of each complainant is made a part of the bill and also the application for insurance of two of the complainants. The material provisions of the policies and applications are hereto annexed as exhibits 1 and 2. Said association became a corporation organized and existing under the laws of the state of New York. It was originally organized in 1881, under the corporate name of Mutual Reserve Fund Life Association of New York, under chap ter 267, Laws of 1875, entitled “An Act for the Incorporation of Societies and Clubs for Provide for the Incorporation and Regulation of Co-operative or Assessment Life and Casualty Insurance Associations and Societies." Its amended charter or certificate of incorporation, filed in 1883, after reciting the desire of the corporation to reincorporate under said act of 1883, provided: "First. We do hereby express our intention to form an organization for the transaction of life insurance upon the co-operative or assessment plan. A "Fourth. The mode and manner in which the corporate "powers granted are to be* exercised are by issuing certificate of membership, policy, or other evidence of interest to, and promise or agreement with, its members, whereby, upon the decease of member, money or other benefit, charity, relief, or aid is to be paid, provided, or rendered by said corporation or association to the legal representative of such member, or to the beneficiary designated by such member, which money, benefit, charity, relief, or aid are derived from voluntary donations, or from admission fees, dues, and assessments, or some of them, collected or to be collected from the members thereof or members of a class therein, and interest and accretions thereon, or rebates from amounts payable to beneficiaries or heirs, and wherein the paying, providing, or rendering of such money or other benefit, charity, relief, or aid is conditioned upon the same being realized in the manner aforesaid; and wherein the money or other benefit, charity, relief, or aid so realized is applied to the uses and purposes of said corporation or association, and the expenses of the management and prosecution of its said business." The existence and corporate powers of the association under the name of Mutual Reserve Fund Life Association of New York continued from that time unchanged until April 17th, 1902. On that date declaration and amended charter of the said association was filed under and pursuant to the provisions of chapter 722, Laws of 1901, which act was an amendment of § 52 of chapter 690, Laws of 1892, known *313 The consent of the policy holders to this amendment of the defendant's charter was not obtained, and no meeting of policy holders was called for that purpose. The complainants had no notice of said amendment until June 2d, 1902, on which date complainants received the following notice: as the insurance law of the state of New | it, if it were originally incorporated under York. This amended charter of 1902 was 'the insurance law' of this state." adopted and filed pursuant to a resolution of the board of directors of the said association, adopted by more than a majority of said board. The declaration and amended charter was duly certified by the attorney general of the state to be in accordance with the requirements of law, and the state superintendent of insurance issued his certificate of the filing of such declaration and amended charter, and consented to the transaction of the business of insurance by the said Mutual Reserve Fund Life Insurance Company as in said amended charter pro-level premium company, under the title of The material provisions of said declaration and amended charter are as follows: vided. "This is to certify that the Mutual Reserve Fund Life Association, a corporation originally organized under and by virtue of chapter 267 of the laws of 1875, and reincorporated and transacting business under chapter 175 of the Laws of 1883 of the state of New York, and the laws amendatory thereof and supplementary thereto, has duly accepted the provisions of the act of the legislature of the state of New York, being chapter 690 of the Laws of 1892, known as 'the insurance law,' and the amendments thereto, and in conformity with the same has duly adopted the following amended charter: "Article 1. "The name of the corporation shall be Mutual Reserve Life Insurance Company.' "Article 3. Make checks and money orders payable to Mutual Reserve Life Insurance Company. Attention is called to this change of name and to the accompanying report of the recent examination of the corporation by the superintendent of insurance of the state of New York, which shows a surplus over liabilities of $466,885.48. This reincorporation, while insuring the stability of the company, makes no change in your policy. Charles W. Camp, Secretary. The bill suggests no irregularity or defect in the procedure by which the amendment of the charter in 1902 was affected, other than that the consent of the policy holders was not obtained. It is further alleged that said company was organized about the 17th of April, 1902, by the then officers and directors of the respondent Mutual Reserve Fund Life Association, without authority from and without the knowledge or consent of complainants or the other members and policy hold. ers of said association, and without cor "The business of the company shall be Insurance upon the lives or the health of persons and all and every insurance apper-porate action by said members and policy taining thereto, the making of endowments, and the granting, purchasing, and dispensing of annuities, such kind of insurance be ing authorized under subd. 1 of 8 70 of the insurance law.' "Article 4. "Sec. 4. The present by-laws of the corporation, which form part of its contracts with its members, shall continue to be the by-laws of the company unless or until the same shall be revised or amended in the manner therein provided. "Article 6. "Sec. 1. The company shall have no capital stock, but shall be a mutual company. "Article 8. "The company shall be entitled to have and enjoy all the "rights, privileges, and provisions of existing laws which might be included in the charter and enjoyed by holders, and that complainants and the other members of the association were not advised of the organization of the company until on or about June 2, 1902, when they received a printed slip notifying them that; the said association had reincorporated un-* der the name "Mutual Reserve Life Insurance Company." The amended bill then alleges that at the time of the organization of said company the association was, and for a considerable time had been, insolvent, its liabilities being in excess of the value of its assets by a large amount, and that the insolvency of the association was known to the officers and directors thereof, and that the officers and directors, headed by Frederick A. Burnham, president of the association, well knowing the insolvency of the association, devised the scheme for the incorporation of the respondent Mutual Reserve Life Insurance Company, and procured legislation in. tended to authorize the same, with the ob Complainants in their amended bill allege "that said law, chapter 722 of the Laws of New York of 1901, if its effect and meaning be such as to authorize the pretended reorganization and reincorporation of the respondent association by the of ficers and directors thereof without due notice to and without the knowledge and consent of complainants or any of the mempers and policy holders of respondent asso ciation. person within its jurisdiction the equal protection of the laws." The circuit court of appeals desires instruction upon the following: Questions. "1. Does the amended bill of complaint disclose that any contract obligations between complainants and the defendant Mutual Reserve Fund Life Association were impaired by the incorporation of the Mutual Reserve Life Insurance Company in 1902, pursuant to the provisions of chapter 722, Laws 1901, of the state of New York, and the transfer to said company of the assets, properties, and membership of the Mutual Reserve Fund Life Association? "3. Does the amended bill of complaint disclose that chapter 722, Laws of 1901, of the state of New York, is in violation of the provisions of article 14 of the Amend ments to the Constitution of the United States, in this, that the reincorporation of the Mutual Reserve Fund Life Associa tion as the Mutual Reserve Life Insurance Company, and the changes in the charter powers and franchises of the corporation, have the effect of depriving complainants of their property without due process of law, and of their vested contract rights and privileges, and of their property rights under their contracts and agreements with respondent association? "2. Does the amended bill of complaint, disclose and show that chapter 722, Laws of 1901, of the state of New York, was*in violation of article 1, § 10, of the Constitution of the United States, as impairing the obligations of a contract between the deis in contravention and fendant Mutual Reserve Fund Life Associa violation of § 10, article 1, of the Constitution and complainants, in so far as it aution of the United States, which prohibits thorized the reincorporation of said assoany state from enacting a law 'impairing ciation as the Mutual Reserve Life Inthe obligation of contracts,' and complainsurance Company? ants invoke and rely upon said provision of the Constitution of the United States, and say that under said provision of the Constitution of the United States said law is unconstitutional, invalid, and void." And complainants*further allege that said law of the state of New York, if given the construction, meaning, and effect aforesaid, is in contravention and violation of those provisions of the Constitution of the United States and of the state of New York which provide that "no person shall be deprived of his property without due process of law," in this, that they deprive the complainants and the other members and policy holders of respondent association of their vested rights and privileges and of their property rights under their contracts and agreements with respondent association without due process of law, and complainants, as citizens and residents of the state of Tennessee and non residents of the state of New York, invoke the provisions of article 14 of the Amendments to the Constitution of the United States, and, upon advice of counsel, allege and charge that said law of the state of New York, if given the force, meaning, and effect aforesaid, is in violation of those clauses of the 14th Amendment to the Constitution of the United States, which provide that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any "4. Does the amended bill of complaint disclose that chapter 722, Laws of 1901, of the state of New York, was in violation of those provisions of article 14 of the Amendments to the Constitution of the United States, which provides that no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws!" Messrs. William Hepburn Russell, D. L. Snodgrass, Caruthers Ewing, R. F. Jackson, William Beverly Winslow, and Daniel M. Miers, for Polk et al. Messrs. Frank H. Platt and Sewell T. |