author: J. Fred Jones, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY v. James Cleborn BALLARD
    5-5597
    469 S. W. 2d 72
    Opinion delivered June 28, 1971

      William J. Smith, Boyce R. Love and Frederick S. Ursery, for appellant.

      Howell, Price, Howell ir Barron, for appellee.
   J. Fred Jones, Justice.

James Cleborn Ballard was injured while in the course of his employment as a switchman for the Missouri Pacific Railroad Company when he was struck by an automobile being driven by a Mr. Pack on a service road in the Missouri Pacific yards in North Little Rock. He filed suit in the Pulaski County Circuit Court against Pack and the railroad company, charging Pack with common law negligence and charging Missouri Pacific with negligence under the Federal Employers’ Liability Act (45 U. S. C. A. § 51 et seq.). Both defendants pleaded Ballard’s own negligence as a bar to recovery, and the issues of negligence were submitted to the jury on interrogatories. The jury apportioned the negligence as 10% to Ballard, 10% to Pack and 80% to Missouri Pacific. It found that Ballard had sustained damages in the amount of $35,000 as a proximate result of the combined negligence. Judgment on the verdict was rendered against Missouri Pacific for $31,500 and on appeal to this court Missouri Pacific relies on the following points for reversal:

“The court was in error in failing to direct a verdict for the Missouri Pacific Railroad Company at the close of the plaintiff’s case and at the close of all the evidence.
The verdict is not supported by substantial evidence.
The court was in error in giving AMI 305 among its instructions to the jury.
The court was in error in giving AMI 1909 among its instructions to the jury.”

The facts as we gather them from the record are as follows: Mr. Ballard was injured about midnight on September 4, 1966. There were three individuals involved in connection with the incident resulting in the injuries—Mr. Ballard, Mr. Pack and Mr. Thurman. All three were employees of Missouri Pacific and were the only eye witnesses to the occurrence resulting in the injuries. Mr. Ballard was a switchman in the transportation department and was engaged in his duties as such when he was injured. The defendant Pack was a locomotive engineer and was on his way to work when Mr. Ballard was injured, and Mr. Thurman was a rip track foreman in charge of repairing damaged railroad cars when they were placed on the rip track for that purpose. The rip track, where cars were repaired, was laid out in a north-south direction and was protected at each end against careless switching operations by switches locked with blue colored locks. Only Mr. Thurman, and car repair personnel under his supervision, carried keys to blue locks and they were the only ones who had authority to open the switches into the rip track; regular switchmen or transportation personnel had no such authority.

An access road with asphalt surface about 18 or 20 feet wide ran near, and parallel to, the rip track. It was designed and used for motor vehicular traffic by employees going to and from their work at various places in the railroad yard. On the night in question, the switching crew with which Mr. Ballard was working was directed by the yard master to switch approximately 45 railroad cars into the north end of the rip track. Upon arriving at the north end of the rip track, they found the rip track switch closed with the blue lock, so they were then directed to take the cars into the rip track from the south end. In the meantime, and while the switch engines and crew were on their way to the south end of the rip track with the cars, Mr. Thurman, the rip track foreman, was directed by the yard master to open the switches into the rip track by removing the blue locks at both ends of the rip track. Mr. Thurman drove in his automobile to the north end of the rip track and opened the switch at that point. He then drove to the south end of the rip track where he found the switch crew in the process of taking the cars through a regular switch adjacent to the access road; after which, that switch would be thrown and the cars would be shuttled back onto the rip track, through the nearby rip track switch. Mr. Ballard was attending the switch through which the cars were passing and about five of the cars had passed through the switch when Mr. Thurman arrived in his automobile headed south on the access road. Mr. Ballard was standing an undisclosed distance from the switch and an undisclosed distance from the access road, but he had his back to the access road and was watching the cars pass through the switch which he was to realign after the cars had passed through. Mr. Thurman stopped his automobile across the access road from Mr. Ballard. He called from his automobile to Mr. Ballard and inquired as to whether the nearby rip track switch was open. There is a slight conflict in the testimony of Mr. Ballard and that of Mr. Thurman as to the exact details of what happened at this point; but, in any event, Mr. Pack, who was driving his automobile north on the access road, struck and injured Mr. Ballard.

Mr. Ballard’s original complaint alleged negligence on the part of Pack in driving at an excessive rate of speed; in failure to keep a proper lookout; in failing to keep his vehicle under proper control; and in driving although afflicted with poor eyesight. The original complaint as amended alleged negligence on the part of Missouri Pacific in failing to provide Mr. Ballard with a reasonably safe place in which to work, and in requiring Mr. Ballard to go to the service road to receive instructions from Mr. Thurman. A second amendment to the complaint against Missouri Pacific alleged that Thurman was a fellow-employee of Ballard’s and that his negligence was imputable to Missouri Pacific; that Thurman, as a superior of Ballard, called Ballard over to the edge of the road where he was struck by an automobile; that Thurman as agent for Missouri Pacific, was negligent in enticing Ballard to enter a place of danger in the course of his work; and in failing to warn Ballard of the approach of a motor vehicle which presented danger to his person and in sitting silently by while observing an automobile bearing down on his person and in otherwise failing to observe ordinary care under the circumstances.

Mr. Pack answered by general denial and alleged that the injuries to Ballard were proximately caused, or contributed to, by his own negligence, or resulted from a risk assumed by him; and that in so far as Pack was concerned the accident was an unavoidable mishap.

Missouri Pacific answered by general denial and alleged that Ballard’s injuries were proximately caused by his own negligence or his contributory negligence and the negligence of Mr. Pack. In answer to the second amendment to Ballard’s compalint, Missouri Pacific, in addition to repleading the matter set out in its original answer, further pleaded the doctrine of assumption of risk.

Approaching the points relied on in reverse order, we are of the opinion that the trial court did not err in giving AMI 1909 among its instructions to the jury. AMI 1909, as given by the trial court, is as follows:

“At the time of the occurrence, there was in force a Federal statute which provided that in any action brought against a railroad to recover damages for injury to an employee, the employee shall not be held to have assumed the risks of his employment in any case where the injury resulted in whole or in part from the negligence of any of the officers, agents or employees of the railroad.”

Missouri Pacific as well as Pack definitely and affirmatively pleaded assumption of risk and although neither requested an instruction on assumption of risk, the evidence as presented constituted very potent factors of assumed risk. Although the trial court failed to define “assumed risk” for the jury, we are of the opinion that the giving of instruction AMI 1909 was not reversible error under the facts and circumstances of this case. In the Committee comment as to the use of this instruction is found the following: “Giving an instruction that the employee has not assumed the risk of his employment has been sustained without regard to whether the defense has been asserted. Wantland v. Illinois Central R. Co., 237 F. 2d 921.” (See also Larsen v. Chicago & N.W. R. Co., 171 F. 2d 841).

As to Missouri Pacific’s third point, AMI 305, as given by the trial court, is as follows:

“It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others.”

This instruction as given was in the exact wording of the Model Jury Instruction 305B as approved by this court. As set out in the Committee comment, this instruction is designed for use when negligence on the part of the plaintiff is an issue, or when the jury is to consider a counterclaim or multi-party suit. This instruction was preceded by AMI 303 as follows:

“A failure to exercise ordinary care is negligence. When I use the words ‘ordinary care,’ I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.”

It was Ballard’s contention that Thurman was an agent for Missouri Pacific; that his negligence in calling Mr. Ballard from his position of safety into the unsafe highway, and in failing to warn him of impending danger was a proximate cause of Ballard’s injuries and damage; and that such negligence was imputed to Missouri Pacific. Mr. Ballard, Mr. Pack and Mr. Thurman were the only persons involved in the occurrence and each of them was charged with negligence. We find no error in giving instruction AMI 305 under the circumstances of this case.

Missouri Pacific’s assignments under its second and first points are closely related and have given us considerable difficulty. Recognizing that every case of negligence must turn on its own particular facts, we find it necessary to set out the facts in this case as well as the facts in similar Federal decisions in much greater length and detail than would be necessary if this were a simple common law negligence case to be decided under state law and decisions, rather than the Federal Employers’ Liability Act as interpreted and applied by the Federal Courts.

The situation in the case at bar is similar to the one presented in Missouri Pacific R. Co. v. Eubanks, 212 Ark. 652, 207 S. W. 2d 610, where (substituting Mr. Pack for Mrs. Keene) we said:

“The suit was brought to compensate a single injury against two defendants having no relation to each other, and different rules are applicable in determining their respective liability. The suit against Mrs. Keene [Mr. Pack] is determinable by the laws of this state, but our state laws are not determinative of the liability of the railroad company. As against the railroad company the Federal Employers’ Liability Act governs and as said in the case of St. L. S. F. Ry. Co. v. Smith, supra, ‘the question as to the sufficiency of the evidence to establish negligence must be determined by that act and the applicable principles of the common law as construed by the federal courts.’ ”

The dissenting opinion in Eubanks further points up the problem before us by citing from Federal Court decision the following language:

“ ‘The focal point of judicial review is the reasonableness of the particular inferences or conclusion drawn by the jury. It is the jury, not the court, which is the fact finding body...’
# # #
. . . Under the old concept of proximate cause, that cause must have been direct, the complete, the responsible, the efficient cause of the injury. Contributing and remotely related causes were not sufficient. Now, [under F. E. L. A.] if the negligence of the railroad has ‘causal’ relation,—if the injury or death resulted ‘in part’ from defendant’s negligence, there is liability.
The words ‘in part’ have enlarged the field or scope of proximate causes—in these railroad injury cases. These words suggest that there may be a plurality of causes, each of which is sufficient to permit a jury to assess a liability. If a cause may create liability, even though it be but a partial cause, it would seem that such partial cause may be a producer of a later cause. For instance, the cause may be the first acting cause which sets in motion the second cause which was the immediate, the direct cause of the accident.”

Returning now to the evidence of Missouri Pacific’s negligence through Mr. Thurman; he was directed to open the switch at the south end of the rip track. He testified as follows:

“Q. When you drove up there, he had his back toward you and let me ask you this, this train is in motion down on this 311 rail, wasn’t it?
A. Yes, sir, it was.
Q. And he had his back over here towards your car and he was facing the train and facing the switch that he is going to throw when it passed?
A. Yes, sir.
Q. To your knowledge, was there any reason for him to leave his position there by the switch prior to your coming up there?
A. No, not to my knowledge.
Q. All right. Now, he did leave that position there by the switch, did he not?.
A. Yes, sir.
Q. What distracted his attention away from the train and caused him to draw nearer to you?
A. I called to him across the road and spoke to him and asked him if the switch was unlocked.
Q. Was this train making noise moving by?
A. Making a little noise.
Q. All right. Now, what did he do?
A. When I asked him the question?
Q. Yes.
A. He made a motion backwards and answered me, yes.
Q. When you say he made a motion backwards, he took a step backwards?
A. As near as I can remember, yes, sir, took kind of a step backwards.
Q. Took a step back and...
A. And he was ...
Q. And in which direction did he turn?
A. He was turning his head from left to right and at the time he answered me, his head was to the left.
Q. Turning his head from left to right, turning his head to the left?
A. And to the right, watching his cars.
Q. Well, he turned to the left to get to facing toward you, did he not?
A. Yes, sir.
Q. And then back over here to where the train was running? He moved himself in a position to where his back was toward an oncoming car that we are going to talk about in just a minute, isn’t that true?
A. I don’t recall his back being turned completely towards the oncoming car, his back was to the road.
Q. That was where he was positioned originally?
A. Right.
Q. His position originally?
A. Yes, sir.
Q. But when you called him, he made a turn to the left, he made a turn around this way to where his back was then facing in this direction?
A. I don’t recall him turning completely around.
Q. Well, partially around.
A. Yes, sir.
Q. The point still being that he had turned away from the direction this car was coming from?
A. Partially, yes, sir.
Q. All right. Now, at the time you drove up there, stopped your vehicle, and at the time you called him, were you aware of an automobile approaching from the south going north?
A. Yes, sir.
Q. Did you see it?
A. Yes, sir.
Q. Did you know it was coming?
A. Yes, sir.
Q. Were you parked on the road or off the road?
A. Partially off and on.
Q. You were partly on the road?
A. Yes, sir.
Q. And partly off the road.
A. Mostly off the road.
Q. Why didn’t you park completely off the road?
A. It just didn’t occur to me to pull completely off the road, I was only going to be there a second.
Q. Is this a wide road out there?
A. No, sir.
Q. It’s a right narrow road, isn’t it?
A. Yes, sir.
Q. Did you turn your lights off?
A. Beg your pardon?
Q. Did you turn your lights off?
A. No, sir.
Q. Did you turn them down to dim?
A. They were on dim.
Q. Now, let’s get back to Mr. Ballard. You’ve described to the jury that he’s got his back towards you, looking at the switch and the train going by him and he takes a step backward and turns partially to the left to where he can speak kind of directly to you, that’s what happened wasn’t it?
A. Yes, sir.
Q. And you sáid what?
A. I asked him if the switch was unlocked.
Q. What did he say?
A. He said yes.
Q. What did he do then?
A. He started moving back towards his switch.
Q. How far did he ever get onto that road from the time he made a step back until the time he started moving back toward his switch?
A. I don’t remember him ever getting more than one foot on the road.
Q. You saying to the jury that he never got more than a twelve inch distance on the edge of that road?
A. Something in that proximity, one leg.
Q. And his only time on that road was to step back up here and answer your question, to say yes, and immediately move away?
A. It wasn’t necessary for him to come up on the road to answer me.
Q. I didn’t ask you that. I didn’t ask you that. I asked you did he move one step back and answered your question and immediately moved back to that switch.
A. Yes, sir.
Q. And all the time you knew Mr. Pack’s car was coming down the road because you had seen it and been watching it, hadn’t you?
A. Yes, sir.
Q. Did you ever, at any time, give any warning to Mr. Ballard that this car was approaching from the back, from his back side at a place where you were partially on that highway, did you ever at any time give him any warning of the approach of that car?
A. No, sir.”

Mr. Thurman testified that there were several telephone poles between the railroad track and the service road on which he was parked but that, in his opinion, the roadway was well lighted and one would have to be looking for shadows of poles in order to find them.

On cross-examination Mr. Thurman testified that when he brought his automobile to a stop, he noticed Mr. Pack’s automobile lights approaching from about a mile away; that he simply called to Mr. Ballard and asked “is that switch unlocked?” and that Mr. Ballard was backing up toward him and replied, “yes it is,” and about that time Mr. Pack’s automobile struck Mr. Ballard. Mr. Thurman testified that the service road on which he had parked his car had a blacktop surface and was about 18 or 20 feet wide; he says that the railroad track runs parallel with the road at this point, and that the telephone poles, referred to in his direct examination, were between the track and the service road about eight feet from the edge of the pavement. He says that Mr. Ballard was holding his signal lantern in his right hand while he was facing the railroad track and that Mr. Pack’s automobile approached him from the right side.

On cross-examination Mr. Thurman was asked why he did not tell Mr. Ballard about the approaching automobile and he answered that he felt certain that Mr. Ballard had seen the automobile, and that he did not think that Mr. Ballard was in any danger from the approaching automobile. He denied that he was Mr. Ballard’s superior and testified that he and Mr. Ballard were not acquainted with each other.

Mr. Ballard testified that he alighted from one of the engines pulling the freight cars and was standing near the switch waiting for the cars to pass through. He testified that he was facing the tracks with his back to the service road and intended to realign the switch as soon as the cars passed through so that the cars could then be shutded back onto the rip track through the switch at the south end of the rip track. He says that the cars were moving through the switch immediately in front of him and that his first knowledge that Mr. Thurman was in the vicinity was when he heard someone say something to him from behind. Then Mr. Ballard testified on direct examination as follows:

“Q. Now, with this train and the noise that it was making as you were standing there, did you know Mr. Thurman at the time he called you?
A. When I turned around and seen him, I didn’t know what his name was, but I know that he was with the Car Department, yes, sir.
Q. Why did you move backward from near that switch onto the edge of the road?
A. Because I didn’t understand what Mr. Thurman said.
Q. Because of what?
A. Because of the noise of the cars.
Q. As you moved back there, what did he say to you?
A. He asked me was the switch locked?
Q. What did you tell him?
A. I told him I didn’t know and I turned to go see.
Q. Did you turn immediately?
A. Yes, sir.
Q. I know you don’t go out there and time these movements, but was there any appreciable time at all that it took you from the time he hollered to you and the time you moved closer to him to hear what he had to say and then give him an answer and moving back. Was there any more time lapse than that?
A. No, sir.
Q. Now, are you all supposed to be out there, I’m talking about out there in the yards at these switches?
A. Yes, sir.
Q. Were you doing what you were supposed to be doing?
A. Yes, sir, the best I knew how.”

Mr. Ballard testified that on some occasions it is necessary for a switchman to get out into the service road to conduct his switching duties, but that this is only necessary on a long string of cars when the engineer on the engine, is around a curve where he cannot see the* signals when given from nearer the track. He testified that the service road where the accident occurred is used by the employees of the railroad company and their families in driving to and from work. Mr. Ballard then continued as follows:

“Q. Did you ever see Mr. Pack’s car coming down the road?
A. No, I didn’t.
Q. Tell the jury how far you ever got out off of that road.
A. Well, I don’t even remember putting my foot on the road, I thought I just went out . . . the best I remember, I just went out to the edge of the road as far as I went, I could have had one foot on it, I wouldn’t argue the point, I don’t know, but as far as my own knowledge, I don’t even remember stepping a foot on the pavement, I thought I was on the shoulder of the road.
Q. Now, with reference to these light poles and with reference to the lights and poles they had in the yard, describe, if you will for the jury, this matter, if it be so, of shadows and lights out there.
A. Well, sir, you have some places there that the road has sufficient lights and then there’s places that it has shadows.
Q. Does this actually vary from day to day with reference to boxcars and with reference to telephone poles ... I know the telephones don’t, but the boxcars move.
A. Oh, yes sir, I would say it will vary, depending on how many cars you have in the yard, if they are hopper cars or boxcars or what have you.
Q. What was the first thing that you knew with reference to Mr. Pack’s vehicle?
A. The first thing I heard was just brakes squalling and then just bam, that was it.
Q. Was it almost that close together?
A. Yes, sir.
Q. Were you, at the time, moving away from the road back towards the switch?
A. Yes, sir to the best of my knowledge, I was headed back to see if the switch was locked where I could tell Mr. Thurman whether it was locked or not.
Q. As far as you know, you were not even on the road at the time?
A. As far as I know, I was not.”

On cross-examination Mr. Ballard testified that he weighed around 230 pounds and he then testified as follows:

“Q. Where this accident happened, Mr. Ballard, in 1966, do you agree with me that a man standing on the edge of the road where you were, if he looked, could see close to a mile down that road around that curve, cars approaching from the south?
A. No, no, sir, I don’t think you could see that far.
Q. All right, how far would you say that you could see a car?
A. ’Tween a quarter and a half of a mile.
Q. You would say you could see a car coming from the south, the direction from which Mr. Pack was coming, for a distance of about a quarter to a half of a mile?
A. Yes, sir.
Q. All right, sir. Now, on the night this happened, you never did see Mr. Pack’s car?
A. No, sir, I never did.
Q. You do know better than to step out into a road without looking both ways, do you not?
A. Yes, sir.
Q. Did you look both ways?
A. Yes, sir.
Q. You did look toward the direction from which Mr. Pack was coming?
A. Yes, sir.
Q. But you didn’t see him?
A. No, sir,
Q. Do you agree with me that once you get past the poles, which are approximately eight feet to the east of the pavement, once you get on the pavement side of the poles, that there’s nothing to prevent you from seeing a car that was coming from the direction from which Mr. Pack’s car was coming?
A. There’s no obstruction, no, sir.
Q. Coming from the switch toward the pavement, once you walked by the poles, there’s nothing to prevent you from seeing Mr. Pack’s car coming from the south?
A. There’s nothing.
Q. Sir?
A. There’s no poles or obstacles, no, sir.
Q. Did you look in Mr. Pack’s direction after you passed the poles?
A. I don’t know. To tell you the truth, I don’t know.
Q. You may have looked ...
A. I may have looked.
Q. Before you passed the poles?
A. I may have looked before, I wouldn’t swear to it, but I think I looked after I got past the poles, I’m not for sure, I wouldn’t swear to it.
Q. All right, sir. You do know that cars travel up and down that road?
A. Yes, sir.
Q. When you were working, you probably went back and forth to work over that road, didn’t you?
A. Yes, sir.
Q. Did you not?
A. Yes, sir.
Q. All right, sir. And at shift change time, I guess there are a number of cars on that road?
A. Yes.
Q. Was this about shift change time, Midnight?
A, Well, yes, sir, it was pretty close to shift change.
Q. When this happened, am I correct that there are about five boxcars that had gone by you and you were waiting for forty more to go by before you were going to throw that switch?
A. Approximately, somewhere there abouts.
Q. You were going to wait there by the switch for about forty cars to go by?
A. Yes, sir.
Q. Now, I didn’t hear you say, but Mr. Price demonstrated and you agreed with him, as to how this happened. He showed you standing facing the train, backing towards Mr. Thurman and going back towards the train. Is that the way it happened?
A. No, sir.
Q. How did it happen?
A. The best I remember, when I heard Mr. Thurman’s voice, I turned and seen him sitting in his automobile, I turned and walked to the road, at no time did I back or I would remember backing up.
Q. It’s your recollection that as you approached the road, you were facing it?
A. Yes, sir.
Q. All right, and that you looked left and right?
A. Yes, sir.
Q. And you were carrying a lantern, were you not?
A. Yes, sir.
Q. Do you agree that a lantern of the type you were carrying can be seen if you are holding it down?
A. Yes, sir, it can be seen . . . well, it all depends on which side you are holding it on whether it could have been seen from which side or not.
Q. Assuming there was nothing in the way, if you hold the lantern out here, holding it down, it can be seen from the side?
A. Yes, sir, unless the light is down by your leg and you are coming from the other side.
# # #
Q. As far as you recall, you may have been hit off the pavement, is that what you said?
A. I could have, I don’t ever remember putting my foot on the pavement. I could have had one on it, I said I wouldn’t swear to it, I don’t know whether I had one foot on or they was both on the shoulder or what.
Q. As far as you are concerned, Mr. Pack may have hit you off the pavement?
A. As far as I know, I did not have both feet on the pavement, I could have had one on the pavement, I don’t know.”

Mr. Pack testified that the speed limit posted inside the Missouri Pacific shop area is 30 miles per hour and that he was traveling to work on the night in question at about 25 miles per hour. He testified that as he approached the scene of the accident, he saw the headlights of Mr. Thurman’s vehicle parked on his left-hand side of the service road. He testified that he slowed down a little bit when he saw the parked automobile and he then testified as follows:

“Q. What happened then, sir?
A. Then all at once, an object appeared in front of me, just like that, looked about a car length.
Q. What was this object?
A. Well, it must have been Mr. Ballard, it was just so quick you couldn’t tell what it was.
Q. All right, you know now it was Mr. Ballard?
A. Oh, yes.
Q. What did it look like to you at that time?
A. Well, it was just . . . just a form, it just happened so quick.
Q. What did you do?
A. Slammed my brakes on and went to the left. I thought I had missed him, then I heard that thump on the side of the car. I stopped just as quick as I could.
Q. What did you do then?
A. I ran back to Mr. Ballard and I said, ‘Oh, Mr. Ballard,’ and put my hat under his head, ‘Mr. Ballard, I’m so sorry, I didn’t see you in time to stop.’
Q. And did he say anything to you?
A. He said, ‘I know you didn’t, Mr. Pack,’ he said, ‘I know you couldn’t help it, I didn’t see you.’ ”

On cross-examination Mr. Pack testified as follows:

“Q. Mr. Pack, you were looking down the road and you were keeping your view up ahead of you for objects on the road?
A. Yes, sir.
Q. You have heard the testimony with reference to these lights and shadows on the road, do they have an impact or do they have some bearing on a person’s ability to see?
A. They sure do.
Q. And a person in the shadows as cast by those poles, do they tend to hide him from a person traveling down the road?
A. I would say they do, they cast a shadow on the road, I would say they do.
Q. He wasn’t any great distance on the road, was he, or was he actually on it?
A. It looked like about two or three feet over in the roadway to me.
Q. Well, do you actually know?
A. Well, it just looked like, I’m not sure, but it looked about two or three feet over in the road.
Q. And there was nothing to block your view of him as you approached that area, was there?
A. No, I don’t know that there was.”

In Wilkerson v. McCarthy, 556 U. S. 55, a switch-man was injured in railroad yards when he slipped and fell into a wheel-pit while walking over the pit on a narrow board walk. The walk was constructed for the use of employees using the pit and switchmen had no occasion to use it. The railroad company did not know switchmen used the walk but there was evidence that employees other than pit crews did use the walk. There also was evidence that switchmen could easily go around the pit without crossing on the walk. The railroad company pleaded contributory negligence; the trial court directed a verdict in its favor and the Utah Supreme Court affirmed. In reversing the Utah Supreme Court on certiorari the United States Supreme Court said:

“There are some who think that recent decisions of this Court which have required submission of negligence questions to a jury make, ‘for all practical purposes, a railroad an insurer of its employees.’ See individual opinion of Judge Major, Griswold v. Gardner, 155 F. 2d 333, 334. But see Judge Kerner’s dissent from this view at p. 337 and Judge Lindley’s dissenting opinion, pp. 337-338. This assumption, that railroads are made insurers where the issue of negligence is left to the jury, is inadmissible. It rests on another assumption, this one unarticulated, that juries will invariably decide negligence questions against railroads. This is contrary to fact, as shown for illustration by other Federal Employers’ Liability cases, Barry v. Reading Co., 147 F. 2d 129, cert, denied, 324 U. S. 867; Benton v. St. Louis-San Francisco R. Co., 182 S. W. 2d 61, cert, denied, 324 U. S. 843. And cf. Bruner v. McCarthy, 105 Utah 399, 142 P. 2d 649, cert, dismissed for reasons stated, 323 U. S. 673. Moreover, this Court stated some sixty years ago when considering the proper tribunal for determining questions of negligence: ‘We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others.’ Jones v. East Tennessee R. Co., 128 U. S. 443, 445. And peremptory instructions should not be given in negligence cases ‘where the facts are in dispute, and the evidence in relation to them is that from which fair-minded men may draw different inferences.’ Washington & G.R. Co. v. McDade, 135 U. S. 554, 572. Such has ever since been the established rule for trial and appellate courts. See Tiller v. Atlantic C.L.R. Co., 318 U. S. 54, 67, 68. Courts should not assume that in determining these questions of negligence juries will fall short of a fair performance of their constitutional function. In rejecting a contention that juries could be expected to determine certain disputed questions on whim, this Court, speaking through Mr. Justice Holmes, said: ‘But it must be assumed that the constitutional tribunal does its duty and finds facts only because they are proved.’ Aikens v. Wisconsin, 195 U. S. 194, 206.”

In Missouri Pacific R. Co. v. Eubanks, supra, Mr. Eubanks was a brakeman engaged in a switching operation at Elaine, Arkansas. The night was dark but the weather was clear. Mr. Eubanks was standing on the front of an engine as it slowly proceeded onto a street crossing. A Mrs. Keene was approaching the crossing in her automobile and Mr. Eu-banks flagged the oncoming car with his lantern and thought that the automobile had stopped. As the engine entered the intersection, Mrs. Keene drove her automobile into the front part of the engine striking and injuring Mr. Eubanks. Mr. Eubanks filed suit against Mrs. Keene and the railroad company alleging joint and concurring negligence; alleging that the railroad company failed to maintain a proper lookout; that signals were not given, and that proper care for Mrs. Keene’s safety was not exercised after her peril was discovered or should have been discovered. A verdict was returned by a jury against Mrs. Keene in the sum of $2,500 and against the railroad company in the sum of $7,500. In reversing the judgment against the railroad, this court, in addition to the language quoted, supra, said:

“So here, if we were considering a suit by or against Mrs. Keene, the question of the failure to blow the whistle or ring the bell, thereby giving warning of the movement of the train, would be important, under common law principles, as ordinary care required that notice of the movement of the train be given by blowing the whistle or otherwise; but blowing the whistle or ringing the bell were not the only methods by which warning could be given. The undisputed testimony is that a warning which should have sufficed was given according to appellee’s own testimony. The evidence appears therefore to be ‘so overwhelming on one side as to leave no room to doubt what the fact is,’ that the negligence of Mrs. Keene was the sole proximate cause of appellee’s injury, there being no substantial evidence of negligence on the part of the railroad company contributing to the injury.”

The United States Supreme Court granted certiorari and in 334 U. S. 854 reversed the decision of this court by Per Curiam which simply stated as follows: “The petition for writ of certiorari is granted and the judgment of the Supreme Court of Arkansas is reversed. See Myers v. Reading Co., 331 U. S. 477, and Ellis v. Union Pacific R. Co., 329 U. S. 649.”

As was stated in Eubanks and also in St. L. S. F. Ry. Co. v. Smith, 179 Ark. 1015, 19 S. W. 2d 1102,

‘Since this suit was brought and prosecuted under the Federal Employers’ Liability Act, which does not define negligence, the question as to the sufficiency of the evidence to establish negligence must be determined by that act and the applicable principles of the common law as construed by the Federal Courts.’ ”

In Anderson v. Atchison, T. & S. F. R. Co., 333 U. S. 821, a railroad conductor was injured when he fell from the rear vestibule of a train. The train traveled past three stations before other employees reported his absence and any attempt was made to find and rescue him. The conductor was taken to a hospital where he died three days later. His widow sued alleging negligence in the company’s failure to search for the decedent within a reasonable period of time, and that as a result he died due to exposure to the cold weather from the time he fell until he was finally rescued. The trial court found that even if the allegations in the complaint were true, they were insufficient to support a judgment for plaintiff, and entered judgment for defendant. The state Supreme Court affirmed and on certiorari, the United States Supreme Court by Per Curiam opinion said:

“We are unable to agree that had petitioner been permitted to introduce all evidence relevant under her allegations, the facts would have revealed a situation as to which a jury under appropriate instructions could not have found that decedent’s exposure and consequent death were due ‘in whole or in part’ to failure of respondent’s agents to do what a ‘reasonable and prudent man would ordinarily have done under the circumstances of the situation.’ Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 67. See also Jamison v. Encarnacion, 281 U. S. 635, 640, 641; Bailey v. Central Vermont R. Co., 319 U. S. 350, 353; Blair v. Baltimore & O. R. Co., 323 U. S. 600, 604; Lillie v. Thompson, 332 U. S. 459, 461-462.”

In Lillie v. Thompson, 332 U. S. 459, the female petitioner for certiorari was employed in the respondent’s railroad yards in Memphis. Her dudes were to transmit orders to the various employees working in the yards. About 1 A.M. she opened the door of her office in response to a knock which she assumed to be one of the respondent’s trainmen and she was attacked and beaten with a piece of iron by a person who was not an employee of the railroad company. She filed suit under the Employers’ Liability Act alleging that the respondent was negligent in sending her to work in a place that they knew to be unsafe without taking reasonable measures to protect her. The District Court dismissed the complaint for failure to state a cause of action and entered summary judgment for the respondent. In reversing by Per Curiam on certiorari, the United States Supreme Court said:

“The district court stated, in explanation of its action, that there would be no causal connection between the injury and respondent’s failure to light or guard the premises, and that the law does not permit recovery ‘for the intentional or criminal acts’ of either a fellow-employee or an outsider.
We are of the opinion that the allegations in the complaint, if supported by evidence, will warrant submission to a jury. Petitioner alleged in effect that respondent was aware of conditions which created a likelihood that a young woman performing the duties required of petitioner would suffer just such an injury as was in fact inflicted upon her. That the foreseeable danger was from intentional or criminal misconduct is irrelevant; respondent nonetheless had a duty to make reasonable provision against it. Breach of that duty would be negligence, and we cannot say as a matter of law that petitioner’s injury did not result at least in part from such negligence.”

In Lavender v. Kurn, 327 U. S. 645, the petitioner’s intestate was attending switches in the switch yards of the Grand Central Station in Memphis, Tennessee; it was a dark night and he was found near the track with a skull fracture from which he died. The evidence indicated that he had fallen forward and some indication that his feet had dragged a few inches southward as he fell. He sustained a gash in the back of his head with a corresponding black mark on the outside of a white cap he was wearing. It was the petitioner’s theory that her intestate was struck by a mail crane swinging from a car and it was the respondent’s theory that he was murdered. His gold watch and ring remained on the body but his wallet without money was found a few days later some distance from where his body was found. The ground was uneven in the area where the body was found and it appeared that it would have been necessary for the decedent to have been standing on one of the mounds in the area in order for a mail crane to strike him. It could have been inferred from the facts, however, that he could have been struck by a mail hook if he were standing on one of the mounds. In reversing a judgment against the railroad company, the Supreme Court of Missouri held that “all reasonable minds would agree that it would be mere speculation and conjecture to say that Haney was struck by the mail hook,” and that “plaintiff failed to make a submissible case on that question.” It was ruled that there “was no substantial evidence that the uneven ground and insufficient light were causes or contributing causes of the death of Haney.” On certiorari the United States Supreme Court reversed, stating:

“The evidence we have already detailed demonstrates that there was evidence from which it might be inferred that the end of the mail hook struck Haney in the back of the head, an inference that the Supreme Court admitted could be drawn. That inference is not rendered unreasonable by the fact that Haney apparently fell forward toward the main Frisco track so that his head was bVz feet north of the rail. He may well have been struck and then wandered in a daze to the point where he fell forward. The testimony as to blood marks some distance away from his head lends credence to that possibility, indicating that he did not fall immediately upon being hit. When that is added to the evidence most favorable to the petitioner as to the height and swing-out of the hook, the height and location of the mound and the nature of Haney’s duties, the inference that Haney was killed by the hook cannot be said to be unsupported by probative facts or to be so unreasonable as to warrant taking the case from the jury.
It is true that there is evidence tending to show that it was physically and mathematically impossible for the hook to strike Haney. And there are facts from which it might reasonably be inferred that Haney was murdered. But such evidence has become irrelevant upon appeal, there being a reasonable basis in the record for inferring that the hook struck Haney. The jury having made that inference, the respondents were not free to relitigate the factual dispute in a reviewing court. Under these circumstances it would be an undue invasion of the jury’s historic function for an appellate court to weigh the conflicting evidence, judge the credibility of witnesses and arrive at a conclusion opposite from the one reached by the jury. See Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 67-68; Bailey v. Central Vermont R. Co., 319 U. S. 350, 353-354; Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 35. See also Moore, ‘Recent Trends in Judicial Interpretation in Railroad Cases Under the Federal Employers’ Liability Act,’ 29 Marquette L. Rev. 73.
It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or dis-believe whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.”

In the Arkansas case of Missouri Pacific R. Co., Thompson, Trustee v. Keeton, Adm’x, 207 Ark. 793, 183 S. W. 2d 505, (cert, granted 326 U. S. 689), the decedent brakeman fell from the front of a gravel car in a switching operation involving six cars of sand and gravel. The decedent was sitting astride the corner or the front car with one foot resting on the gravel and the other on a grabiron on the outside of the car. The allegations of the complaint were that the train stopped suddenly which jerked or caused the decedent to fall from the car. All of the train crew testified that there was no unusual jerk or jar in the operation and no sudden stop or quick jerk at all. The appellee-widow testified that her husband, in a “dying declaration,” told her that he was sitting on the corner of the car with his switch list in one hand and a light in the other; that there was a sudden stop and that after he was jerked off of the car he knew nothing more after the sudden hard stop and he was jerked off of the car. A judgment entered on a verdict for the widow was reversed by this court, on the grounds that there was no substantial evidence of negligence on the part of the railroad company. Justice Robins dissented because of the widow’s testimony as to the dying declaration. The Supreme Court of the United States granted certiorari and reversed by Per Curiam opinion holding that the question of respondent’s negligence should have been submitted to the jury.

In Jenkins v. Kurn, 513 U. S. 256, a fireman saw a standing train on a track in front of the moving train he was working on and he shouted to the engineer to apply the emergency brake. The engineer turned and looked at the fireman but did nothing. The fireman then rushed across the cab and stood behind the engineer for a brief time but said nothing. When the train was near collision with the stopped train, the engineer applied the brakes and the fireman jumped from the train landing in rocks and injuring himself. In his suit against the railroad the fireman alleged that he notified the engineer of imminent peril; that the engineer negligently failed to respond, thereby creating a dilemma of imminent peril which forced the fireman to jump from the train. A jury trial resulted in a verdict for $12,000 and judgment thereon. The Supreme Court of Missouri held that the railroad company’s motion for a directed verdict should have been granted and in reversing on certiorari, the United States Supreme Court said:

“There was evidence from which the jury could have concluded that if not subject to any physical disability the engineer would have comprehended petitioner’s monition and understood that peril was imminent. Petitioner testified without contradiction that he ‘hollered’ his warning loudly; that only a narrow space separated his perch from the engineer’s seat; that the engineer’s hearing was ‘all right’; that petitioner and the engineer could and did carry on ‘normal conversations’ while the train was operating; and that there was comparatively little noise in the cab from the train.”

In Larsen v. Chicago & N.W. R. Co., 171 F. 2d 841, the court said:

“Unless there is a complete absence of probative facts, Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740, 90 L. Ed. 916, the question of whether defendant was guilty of negligence in furnishing a reasonably safe place to work was for the jury to determine from all the facts and circumstances. Bailey v. Central Vermont Ry., supra, 319 U. S. at page 353, 63 S. Ct. 1062, 87 L. Ed. 1444. And once there is a reasonable basis for concluding that there was negligence which caused the injury, it is irrelevant that fair minded men might reach different conclusions. In such cases the trial judge is not justified to substitute his conclusions for those of the jury. Lavender v. Kurn, supra, and Ellis v. Union Pacific R. R. supra, 329 U. S. at page 653, 67 S. Ct. 598, 91 L. Ed. 572. Bearing these principles in mind and applying them to our case, we believe there was a reasonable basis for concluding there was negligence which caused the injury, hence the trial court properly left it to the jury to say whether defendant was guilty of negligence in placing the caboose ahead of the pusher engine and whether plaintiff’s injuries resulted in whole or in part from such negligence.
# * *
... It also insists that the court erred in instructing the jury that the Federal Employers’ Liability Act provided that people working in the railroad business did not assume the risk of employment. We see no error in the instruction, given.”

In Wantland v. Illinois Central R. R. Co., 237 F. 2d 921, the court said:

“In actions under this Act, the issue of the carrier’s negligence is for the jury to determine and it is the jury’s function to weigh the contradictory evidence and inferences, judge the credibility of witnesses and draw the ultimate conclusions as to the facts. Wilkerson v. McCarthy, 336 U. S. 53, 69 S. Ct. 413, 93 L. Ed. 497, rehearing denied 336 U. S. 940, 69 S. Ct. 744, 93 L. Ed. 1098. If the jury can find every fact exists which must exist to sustain the plaintiff’s case and if the evidence on the issue of negligence is such that reasonable minds might differ on the question of whether the carrier has been negligent, the case is one for the jury. Frizzell v. Wabash R. Co., 8 Cir., 199 F. 2d 153, certiorari denied 344 U. S. 934, 73 S. Ct. 505, 97 L. Ed. 718.
# * #
Only a complete absence of probative facts to support the verdict reached by the jury would justify this court in substituting its conclusions for those of the jury. Lavender v. Kurn, 327 U. S. 645, 652, 66 S. Ct. 740, 90 L. Ed. 916. We cannot say as a matter of law that the plaintiff was guilty of negligence which was the sole, proximate cause of this accident.”

The above cited cases are by no means all the Federal Court decisions construing the Federal Employers’ Liability Act as amended by 45 U. S. C. A. § 54 (1939), but they point up the general attitude of the courts “where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.”

In the case at bar the 80% negligence attributed to Missouri Pacific seems out of all proportion to the negligence of Ballard and Pack under the evidence as we view the record; but, in Mumma v. Reading Co., 247 F. Supp. 252, the plaintiff-employee was wearing rubbers over his regular work shoes and they became saturated with oil negligently spilled by his fellow-employees and through which he was required to walk in the performance of his duties. He was injured when he slipped and fell because of the oil on his rubbers. A jury made a finding of 45% contributory negligence. In approving the verdict the court said:

“Thus, as to the second accident, there is at least some suggestion in the evidence that the plaintiff might have taken some additional precautions for his own safety. While the percentage of blame attached to plaintiff by the jury seems out of all proportion, that determination was nonetheless for the jury.”

See also Schulz v. Pennsylvania R. Co., 350 U. S. 523, a suit under the Jones Act, 46 U. S. C. A. § 688, where the District Judge directed the jury to return a verdict for the defendánt, stating:

“There is some evidence of negligence, and there is an accidental death. But there is not a shred of evidence connecting the two.”

And where the Court of Appeals affirmed, saying that while the evidence was “perhaps at most only doubtfully sufficient to present a jury question as to defendant’s breach of duty,” it failed to show "where the accident occurred” or “that it was proximately caused by any default on the part of the defendant.” But where the Supreme Court said:

“In this case petitioner is entitled to recover if her husband’s death resulted ‘in whole or in part’ from defendant’s negligence. Fair-minded men could certainly find from the foregoing facts that defendant was negligent in requiring Schulz to work on these dark, icy and undermanned boats. * * * Jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.”

See also Stone v. N. Y., Chicago & St. Louis R. Co., 344 U. S. 407, where a section hand injured his back while helping to remove a cross tie from under the rails of the track, and in reversing the Missouri Supreme Court which had reversed a judgment of the trial court on a jury verdict in favor of the section hand; the United States Supreme Court said: “We think there was evidence of a causal connection between the order of Stouston to pull harder and petitioner’s back injury.”

In the case at bar there is little question that Ballard was safe from the hazard of traffic on the access road while he was standing near the switch he was attending in the proper performance of his assigned duties. The record does not reveal the distance between the switch Ballard was attending and the access road where he was injured, but there is no question that Ballard left the safety of his position near the switch and went to the access road where he was injured. According to the evidence pertaining to light poles, he walked at least eight feet toward the road. Whether Ballard walked backwards as testified by Thurman, or whether he walked forward as he testified, makes no difference.

There is no question that Ballard left his safe position near the switch and went to the access road where he was injured in response to a call from Thurman, and there is little question that Ballard would not have been injured if Thurman had performed his own duties as the yard master had directed. We hold that there was sufficient evidence of negligence on the part of Missouri Pacific through Mr. Thurman, to take the case to the jury.

The jury could reasonably have found that Mr. Thurman was negligent in parking his automobile across the access road from Ballard and shouting a question to Ballard under circumstances that would distract Ballard’s attention from his assigned duties and cause him to come to the access road in order to understand the question over the noise of moving cars. The jury could have further found that as Pack approached Thurman’s automobile on the narrow access road, he gave it a wide berth in anticipation of passengers alighting from Thurman’s automobile rather than someone coming from the busy railroad tracks from across the access road to Thurman’s automobile. We conclude that there is some substantial evidence to support the verdict and that the judgment must be affirmed.

The judgment is affirmed.

Fogleman and Byrd, JJ., concur.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Norma Richardson CAMPBELL v. Sam M. RICHARDSON, III
    5-5554
    468 S. W. 2d 248
    Opinion delivered June 28, 1971

      Allen, Young ir Bogará and Gaughan, Laney, Barnes ir Roberts, for appellant.

      Brown, Compton, Prewett ir Dickens, for appellee.
   Frank Holt, Justice.

ThN action was instituted by the father, appellee, to secure custody of his minor son who, by agreement, had been in the custody of his mother, appellant, since July of 1967 when appellee secured a divorce. At the time of the divorce, the minor, Samuel Richardson, IV, was eight years old and was residing with his parents in El Dorado where appellee and appellant were closely acquainted with another married couple, William and Sara Campbell. The Campbells were divorced in May of 1967, two months prior to the divorce of appellant and appellee. Mrs. Campbell was awarded custody of the Campbell boys, ages 5 and 7. On October 26, 1968, Sam Richardson, III, appellee, married Sara Campbell and they have continued to reside in El Dorado. On January 4, 1970, Norma Richardson, appellant, married William Campbell and almost immediately moved, with her son, to Little Rock where Mr. Campbell was and still is employed. Sam Richardson, III then filed a petition for a change of custody of his son from Norma Richardson Campbell to himself. After a lengthy hearing the chancellor, on July 2, 1970, awarded custody to the appellee-father. On appeal appellant contends for reversal that “there was no showing of a change in circumstances occurring since entry of the original decree of divorce as would justify modification of that decree; and that the welfare of the child is best served by having the custody remain in the mother.” We cannot agree with appellant's contentions.

During the two and one-half years appellant and her son lived in El Dorado following the divorce, the child had the company and close relationship of his father, grandparents, and friends. It appears that the appellee enjoyed very liberal visitation rights and was seeing his child one or two nights during the week and also on the weekends when they attended church together regularly. Immediately following the divorce, as before, Sammy also spent a great deal of time, including vacations, with his paternal grandparents; however, this relationship was gradually curtailed. During the four and one-half months that Sammy resided with appellant in Little Rock, he spent about one weekend a month in El Dorado with appellee.

Subsequent to her divorce, it appears undisputed that appellant had an affair with Mr. Campbell, her present husband; however, nothing of this relationship was ever revealed to Sammy. She stated that when Mr. Campbell was in her home it was at the invitation of Sammy and that he had shared Sammy’s bedroom with him. The appellee adduced evidence that Mr. Campbell’s car was frequently observed at appellant’s house late at night and early in the morning. There was also evidence presented that appellant had a clandestine affair with a married man, a co-employee at a local mental health center, with the expectation of eventual marriage.

Upon appellant’s marriage to Mr. Campbell, she, her husband, and Sammy resided in one of the nicest apartment complexes in Little Rock. Appellant secured employment as a medical secretary and was at home within thirty minutes after her son’s school hours. An experienced babysitter attended him until she arrived. The stepfather, who had suffered financial reverses, was repaying his debts from an estimated $18-20,000 per year income and expressed a strong desire that appellant retain custody of Sammy. There was evidence that appellant and the stepfather were devoted to Sammy and spent a great amount of time' alid effort in attempts to help him adjust to his new surroundings by assisting him in his studies and affording him a comfortable home and recreational activities. However, Sammy did not adjust to his new environment; in fact, there was a drastic drop in his school grades. In El Dorado he had received “A’s” and “B’s” whereas during the four and one-half months he was in Little Rock he received mostly “D’s” or failing grades. Also, Sammy was late to school 14 times.

Dr. Donald Martin, a counselor in psychology, at the request of appellee, saw Sammy on February 14, 1970, to determine his emotional problems. This witness stated that he also forwarded a drawing ‘test to Sammy on May 2, 1970. According to Dr. Martin, Sammy was depressed because of anxiety which affected his ability to concentrate and also, to ignore what goes on around him and that these difficulties would cause his school grades to drop. He further stated that the testing showed Sammy had a very deep attachment for his father who showed warmth and understanding and that he was fearful of his mother, mainly that she would harm his father. He stated that Sammy needs someone who accepts, understands, and loves him so that he can get his confidence built up; that Sammy must be stabilized as quickly as possible; and that his father would be the one to fulfill his son’s needs.

Dr. Patrick Caffey, a clinical psychologist with a PhD, testified that Dr. Martin conducted a very “limited” evaluation and is not trained to work with children; however, that all the tests given by Dr. Martin were recognized in the field of psychology with the exception of one. Dr. Caffey stated that the two and one-half-hour testing session conducted by Dr. Martin with Sammy only was inadequate; that generally six or seven series of tests are given before a competent diagnosis can be made and only then after adequate consultation with the child and both parents. Dr. Caffey further stated that he was acquainted with the parties; that he was a friend of appellant’s; that he had seen Sammy casually on two or three occasions when the child was with appellant; that the child did not seem distressed; that he seemed overly affectionate; and that there was nothing to suggest any need for counseling the child. He further stated that he was familiar with the school system in El Dorado and in Little Rock; that the Little Rock school system was more difficult than El Dorado’s; and that following the change of schools the drop in Sammy’s grades could be expected until he adjusted.

Appellant, her present husband, parents, and numerous friends testified that appellant and her son had a very close mother-son relationship and her witnesses said that they had observed nothing detrimental to his welfare nor anything that would indicate the boy was not adjusting to his change in environment.

Numerous witnesses attested to appellee being a respected and successful businessman; a church and civic leader; an exemplary father who spent time with his son by assisting him in his school studies and participating with him in such recreational activities as baseball, golf, and horseback riding.

Appellee’s present wife, the stepmother who is a school teacher, testified that she wanted Sammy in her home; that her two boys, aged 8 and 10 at the time of the hearing, were compatible with Sammy; and that she would no longer work after her expected child was born within a few months.

According to the transcript of an in-chambers proceeding in which the chancellor questioned Sammy, by agreement and in the presence of counsel for each of the parties, Sammy testified that, although he loved his mother, he preferred to live with his father.

An appeal from the chancery court is reviewed de novo; however, the decision of the chancellor will be affirmed unless it is clearly against the preponderance of the evidence. Hampton v. Hampton, 245 Ark. 579, 433 S. W. 2d 149 (1968).

Appellant correctly asserts that the rule to be applied in suits seeking a modification of a custody order is set out in Myers v. Myers, 207 Ark. 169, 179 S. W. 2d 865 (1944). There we said:

“* * # While there is continuing authority in the court granting a decree of divorce to revise or alter orders contained in such decree affecting the custody and control of the minor children of the parties, such orders cannot be changed without proof showing a change in circumstances from those existing at the time of the original order, which changed circumstances, when considered from the standpoint of the child’s welfare, are such as to require or justify the transfer of custody from one parent to the other.”

Further, in 27B C. J. S. Divorce § 317(2) it is stated:

“* * # The mere fact that conditions have changed since the divorce of the parents is insufficient in itself to warrant a modification of the custody order. Therefore, it is insufficient to establish some change in circumstances or a slight change in conditions; there must be a showing of material, permanent, and substantial change in the circumstances or conditions of the parties, affecting the welfare of the children to a substantial or material extent, the two issues being closely intertwined.”

However, in making this determination the best interest and welfare of the child are the paramount considerations. Holt v. Taylor, 242 Ark. 292, 413 S. W. 2d 52 (1967). Sammy, the twelve-year-old boy, testified that, although he loved his mother, he wanted to live in El Dorado, and that he felt he would receive better care from his father and stepmother. In Aaron v. Aaron, 228 Ark. 27, 305 S. W. 2d 550 (1957), we quoted with approval:

“* # # the wishes of the children were consulted, and, while their preference is not of controlling importance, it is a circumstance which cannot be ignored * #

Furthermore, in Beene v. Beene, 64 Ark. 518, 43 S. W. 968 (1898), we said:

“* * * The elder of the boys, now about nine years old, has probably arrived at that age when a father’s peculiar character of oversight and control may begin to be more necessary than the mother’s * *

We think this reasoning is applicable to the case at bar.

In Qualls v. Qualls, 250 Ark. 328, 465 S. W. 2d 110 (1971), a case involving an appeal from an order granting custody of a nine-year-old boy to his father, we affirmed and said:

“For reversal the appellant relies principally upon the law’s inclination to favor the mother in custody cases involving very young children. That principle, however, loses some of its force as the child grows older and is not so strong in the case of a ten-year-old boy as it would have been much earlier in the child’s life. Moreover, the trial judge saw fit to award custody to the father in spite of the rule in question. We view this case much as we did the situation in Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500 (1958) where we said: 'We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i. e., to observe these litigants and determine from their manner, ..as well as their testimony, their apparent interest and affection, or lack of affection for the child. Under our oft repeated rule that we will not disturb the findings of the chancellor unless they are clearly against the preponderance of the evidence, we affirm this temporary order.’ We are of a similar opinion in the case at bar.”

Likewise, in the case at bar we certainly cannot say that the chancellor’s findings are against the preponderance of the evidence.

Affirmed.

Byrd, J., dissents.


author: George Rose Smith, Justice.

text:
    George Vinson GAINES v. STATE of Arkansas
    5604
    470 S.W. 2d 591
    Opinion delivered September 20, 1971

      Tackett, Young, Patton ir Harrelson for appellant.

      Ray Thornton, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, charged with first degree murder, was convicted of voluntary manslaughter and sentenced to imprisonment for two years. For reversal he contends that the circuit judge should have granted a new trial, because a juror assertedly concealed certain facts which suggest that she was prejudiced against the accused.

The testimony taken at the trial is not before us. All we have is the brief stipulation upon which the motion for a new trial was submitted to the circuit judge. We quote the essential parts of that stipulation:

[DJuring the general questioning of the entire panel by the Court on voir dire Mrs. Blythe raised her hand and volunteered the information that her husband owned and operated a business next to where the killing occurred. That this lady also, in response to the Court’s question, said that she knew nothing about the facts, had no opinion about the case and had no interest in the case. . . . Mr. Tackett, counsel for the defendant, asked Mrs. Blythe what business her husband was in and she replied that he owned and operated a recreational parlor.
Mrs. Blythe’s husband does, in fact, own and operate the pool hall where the defendant and the deceased were involved in an argument just prior to the shooting in this case, which shooting occurred in front of the pool hall. . . . [T]he name of the place of business in which the pool hall is operated is Stamps Recreation Parlor.
It is also stipulated that from the opening statement of the Prosecuting Attorney and from the first witness who testified and throughout the case that the juror, Mrs. Blythe, knew or should have known that the difficulty which led to the shooting outside the pool hall began in the pool hall and that the deceased was an employee of the juror Blythe’s husband at his recreation parlor where the pool hall is located.
. . . [Tjhat the building in which the recreation parlor was located and operated and where the pool hall business was carried on was and is owned by the juror, Mrs. Blythe, and her husband as an estate by the entirety, but that said business was actually operated by Mr. Blythe and that Mrs. Blythe did not personally participate in the operation of said business.

In our opinion the stipulated facts fall decidedly short of establishing reversible error. It was incumbent upon the appellant to show that the juror wrongfully concealed bias on her part and thereby imposed herself upon the litigants. VanHoozer v. Butler, 131 Ark. 404, 199 S. W. 78 (1917). Here there is no clear showing either of concealment or of bias. Mrs. Blythe volunteered truthful information and honestly answered defense counsel’s question about her husband’s business. Counsel did not pursue the matter further. That the juror should have known certain facts from the testimony does not prove either that she did know those facts or that the supposed knowledge necessarily showed bias. The circuit judge was familiar with the facts developed at the trial, but we do not have that advantage. Moreover, Mrs. Blythe was not called as a witness in connection with the motion for a new trial. Thus her statement on voir dire, that she knew nothing about the facts, had no opinion about the case, and had no interest in the case, is not directly contradicted. Upon the meager record before us we cannot say that the circuit judge should have granted a new trial on the basis of proof that is essentially speculative in nature.

Affirmed.


author: Lyle Brown, Justice.

text:
    Homer Lee DUCKERY v. STATE of Arkansas
    5605
    471 S.W. 2d 330
    Opinion delivered September 20, 1971
    [Rehearing denied October 25, 1971.]

      W. P. Switzer, for appellant.

      Ray Thornton, Attorney General; Garner L. Taylor, Jr., Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Homer Lee Duckery was convicted of voluntary manslaughter in connection with the death of Katie Thomas. One point is advanced for reversal, that being that it was error to admit a purported dying declaration.

Katie Thomas, sixty-six years of age, resided in Wilmot at the home of her daughter and son-in-law, Rita Duckery and John Duckery. John was a brother of the appellant. On a Saturday night in October 1970, appellant went to the Duckery home. About nine o’clock John and Rita Duckery left the home to go to Eudora to pick up an item at a drug store. When the husband and wife left home appellant and Katie Thomas were drinking alcoholic beverages. When the couple returned in about one hour they found Katie Thomas in a bedroom in her night clothes. The door to the bedroom had been knocked off its hinges. Katie was on the bed and suffering from considerable bruises about the head. During Saturday night and Sunday the daughter administered ice packs and rubbing alcohol to Katie. The injured woman declined to be taken to a doctor. Murl Dean, a sister of Katie Thomas, came to the Duckery home late Sunday afternoon. When Murl saw the condition of her sister, Murl asked to take Katie to Murl’s home in Wilmot because Rita had to work the night shift at a nursing home. Katie spent the night with Murl. During the night Murl administered ice packs and rubbing alcohol. She returned her sister to Rita’s home early the next morning.

On that same Monday morning Katie’s condition suddenly worsened and Dr. McCormick was called. When he arrived Katie was in a coma and it appeared to the doctor that she had a stroke. Dr. McCormick did not examine the head for bruises but said he did notice a bruise on her right forehead. At the doctor’s suggestion she was taken to a hospital where she died that afternoon. Dr. McCormick, having Katie’s history of hypertensive heart disease, attributed death to a severe stroke.

An autopsy was performed by Dr. Klam, a pathologist. He found bruises in the area of the forehead, another over the right eye with swelling. He found black and blue marks involving the side of the lip and the chin, and another on the left shoulder. He reflected the skull and found a great deal of blood in the temple muscle. The brain was wet and bloody and there was a blood clot of considerable size in the temple region. He concluded that the deceased suffered from a subdural hemorrhage associated with trauma. He said he found no evidence of the type of hemorrhage seen with hypertension.

Now as to the dying declaration. Witness Murl Dean testified about the declaration. When Katie went home with Murl on Sunday afternoon, Katie is said to have lain across the bed, whereupon the following colloquy occurred, according to Murl:

. . . I say, “You are suffering.” And she say, “Yes, my head and my eye.” And I said “Well, Katie, I’m gonna do something for you. I just want you to tell me now what’s happened to you.” And she say, “Oh, you just don’t know.” And I said, “Well, you just tell me what’s done happened.” And she said, “I’m gonna tell you, Murl, I’m gonna die. I can’t live. I’m gonna die.” I said, “I’m not thinking about that, you just tell me what happened to your eye.” She said, “Well, Murl, I went to my room last night, and I locked my door. And Homer Lee come there and knocked on the door and told me to open it.” She said, “I wouldn’t open that door. Then Homer Lee run against that door and knocked it out, and he come on in there.” She didn’t say raped, Mr. Wynne. She say, “He lay me down and then he beaten me, and you know that’s awful.” And I said yes. And she said, “And don’t say nothing else to me. You just don’t know.” She said, “But I ain’t gonna live. I know I’m gonna die.” Then I say, “Well, just let me take you to the doctor. She say, “Oh, no. You can’t take me to the doctor. Rita’s life is at stake.” And that’s all she would tell me.

Continuing, Murl testified that she suggested calling the doctor and the police. Katie is said to have refused both offers because she thought it might endanger her daughter’s (Rita) life if Katie’s encounter with appellant became publicly known.

“In order for a statement to be admissible as a dying declaration it must satisfactorily appear from the declarant’s express language or from inferences fairly drawn from his condition; any evident danger, and other circumstances that his sense of impending death was so certain that he was without hope or expectation or recovery.” Barnard v. Keathley, 249 Ark. 346, 459 S. W. 2d 121 (1970). If from an examination of those factors it is determined that there was substantial evidence for the trial judge to submit the question to the jury then we affirm. Barnard v. Keathley, supra, and Miller v. Goodwin and Beavers, 246 Ark. 552, 439 S. W. 2d 308 (1969).

It cannot be disputed that impending death was in fact certain. That fact is evident from the testimony of the pathologist. Also, Dr. McCormick’s conclusion on Monday morning before her death that afternoon, was that she would never come out of the coma in which he found her. The court also had substantial evidence that from the time Katie Thomas suffered the alleged beating until the time she went into a coma she constantly complained of pain about her head and eyes and was unable to sleep the night before her death. We think the recited circumstances, together with Murl Dean’s testimony, constituted substantial evidence and that the court was justified in. submitting the question to the jury.

Affirmed.

Byrd, J., dissents.


author: John A. Fogleman, Justice.

text:
    STATE of Arkansas v. William J. KIRBY, Judge
    5-5714
    470 S.W. 2d 590
    Opinion delivered September 20, 1971

      Alex S. Streett, for petitioner.

      Ray Thornton, Attorney General, for respondent.
   John A. Fogleman, Justice.

For the reasons set out in our supplemental opinion in State of Arkansas v. George, No. 5-5671, the temporary writ issued in this cause is made permanent. It is only because of compelling public policy that we cannot sustain the exchange of circuits arranged by the regular Circuit Judge of Pope County. There has not been the slightest suggestion or intimation of any partiality on the part of the experienced circuit judge named as the respondent or that he is himself disqualified for any reason. Our action is in nowise premised on any showing or apprehension of prejudice or disqualification on his part and is not to be taken as a reflection on his ability to have acted impartially in the premises.

Byrd, J., not participating.


text:
    Leotis BREWER v. STATE of Arkansas
    5534
    470 S.W. 2d 581
    Opinion delivered September 20, 1971

      William E. Johnson, for appellant.

      Ray Thornton, Attorney General; James A. Neal, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Leotis Brewer was convicted of second degree murder in the Ashley County Circuit Court and was sentenced to 21 years in the penitentiary. He has appealed to this court and relies on the following points for reversal:

“The trial court erred in overruling appellant’s motion for a directed verdict as to the charge of murder in the first degree, and in instructing the jury as to said charge over appellant’s objection.
The trial court erred in refusing to give appellant’s requested instruction on misfortune or accident and in refusing to give any instruction on said defense.
The trial court erred in refusing to give appellant’s requested instruction on justifiable homicide, and in giving an incorrect and prejudicial instruction on said defense.”

The facts as established by the evidence of record indicate that Brewer and the deceased, Pete Hadley, were at a tavern referred to as “Cox’s Honkey Tonk” on the night of February 15, 1969. They both had been drinking. Brewer got into an argument with Eugene Morris and fired a pistol three times into the air inside the building. Brewer was standing near the door and was reloading his pistol when Hadley came near him. He kicked Hadley and threw a bottle at him. Hadley grappled with Brewer and wrestled him through the door. Brewer then threw a beer can at Hadley and then shot and killed him.

Margaret Allen Cox, the manager of the tavern, testified that she saw Brewer with a gun pointed at Morris and saw Brewer fire the weapon into the air. She testified that she went to call the police and that she only heard three shots fired.

Lee Charles Porter testified that Hadley and Brewer got into an argument; that Brewer kicked Hadley and threw a bottle at him; that Hadley then grabbed Brewer and threw him out the door; that Brewer then threw a can at Hadley and told him not to come any closer; that Hadley staggered toward Brewer and Brewer then shot and killed Hadley.

On direct examination this witness testified that after firing three shots into the ceiling of the tavern, Brewer reloaded the pistol; that after reloading the pistol Hadley went close to Brewer and Brewer kicked Hadley, and after they got outside Brewer threw a can at Hadley with his right hand while still holding the pistol in his left hand. This witness then testified as follows:

“Q. Then what happened?
A. Pete’s foot got hung in the porch out there and he fell and when he got up, he got up with his hands up. He got a can and throwed at him.
A. Who threw a can?
A. Brewer did, at Pete. He missed him. Pete was standing back there with his hands up like that. He told him, “Don’t come closer.’ When he throwed the can, Pete staggered closer and he shot him. When Pete fell, he told him if he’d move he’d kill him.
Q. You heard Leotis say that to Pete Hadley?
A. Yes, sir.
Q. ‘If you move, I’ll kill you.’?
A. Yes, sir.
Q. That was after he shot him?
A.- Yes, sir.
Q. Was there any shooting before that?
A. He was shooting around the place there..
Q. Who was?
A. Brewer.
* * *
Q. And did you see anything in Pete Hadley’s hand?
A. No.
Q. He didn’t have a bottle or anything in his hand?
A. No, sir.
Q. Did anybody throw anything at anyone then?
A. Brewer threw a beer can at Pete and he ducked and staggered forward and when he staggered, that’s when Brewer shot him.
Q. Was it a stagger or was Pete' trying to charge him?
A. Well, it looked like a stagger to me.
Q. And you saw Pete fall to. the ground and then you say that Leotis said, “If you move I’ll kill you?’
A. Yes, sir.
Q. Did Pete move?
A. No, sir, he was dead.”

On cross-examination this witness testified as follows:

“Q. Did you hear Leotis tell Pete, ‘Don’t come up on me.’?
A. No, sir.
Q. You didn’t hear words to that affect?
A. No, sir.
Q. Is it possible that it was said and you not hear it? Were you far enough away that you might not have heard it?
A. I was close enough to hear . everything.
Q. Leotis did not tell Pete that?
A. No, sir.
A. You never heard them say anything to each other?
A. After he shot him he said something.
Q. That’s when he said about killing him if he moved?
A. Yes, sir.
Q. Did he kick him?
A. Yes, sir.
Q. What else did he do?
A. He kicked him and Pete didn’t move and he just took off running.
Q. Leotis took off running?
A. Yes, sir.
Q. What did he do with the gun?
A. Kept the gun in his hand. I don’t [know] what he do with it after he left.”

Odell Warren testified that after Brewer fired shots inside the tavern he reloaded the pistol and went outside and that Hadley went out behind him. He testified that he saw Brewer throw a can at Hadley then “jump back” and shoot Hadley. He says that Hadley had his hands up and they were empty.

Eddie Porter testified, in part, as follows:

“Q. Tell the jury exactly what you saw?
A. When I walked up, I seen Brewer pick up a can or something and throw it at Pete, Pete throwed his hand up and stepped back and at that time the gun went off and Pete fell. That’s all I seen.
Q. Who had the gun?
A. Brewer.
Q. was he holding the gun on Pete when he threw the can at him?
A. He had it in his left hand and he reached down and picked up the can and throwed it. Pete throwed his hands up and at that time the gun went off and Pete fell and I turned and walked off.”

Brewer testified in his own defense. He testified that he was drinking on the night in question and did not remember firing the gun inside the tavern. He did remember an argument with Eugene Morris over a dollar Morris owed him. He testified that after having an argument with Eugene Morris his (Brewer’s) brother and someone else came up and took him out of the tavern. He says that Pete Hadley followed him outside cursing him; that they got to arguing back and forth, and he then testified as follows:

“A. I could see one of his hands in his pocket. I had my gun in my back pocket. When I seen his hands in his pocket and he started up on me and I told him not to come up on me. When he started up on me, he made a step forward, I already had my hand back like this and I just throwed it up.
Q. You pulled the gun out and shot?
A. I didn’t even know the gun was loaded, because a boy just had pawned me the gun.
* # #
Q. What did you reach in your pocket and pull that gun out for?
A. To try to scare him back off.
Q. Were you scared of him?
A. Sure.
Q. Why?
A. He was a bigger man than I was and I know what he would do if he got his hands on me.
# * #
Q. Did you intend to shoot Pete Hadley?
A. Not exactly, no, sir.
Q. What do you mean?
A. What I was going to do was try to scare him back.
Q. Did you mean to pull the trigger and shoot anywhere?
A. No, sir, I was just going to pull it and let him see the gun.
Q. Just to scare him?
A. Yes, sir.
Q. Did you intend to kill Pete Hadley?
A. No, sir.

Brewer’s 20 year old brother testified that he and his father took Brewer outside the tavern and that when Hadley came out of the tavern he thought Hadley might have something in his hand to hurt Brewer with, so he released Brewer and had started walking away when he heard the shot that killed Hadley.

The information filed by the prosecuting attorney is in the following form:

“* * * I, Frank Wynne, Prosecuting Attorney within and for the tenth judicial circuit of the state of Arkansas, of which Ashley County is a part, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant Leotis Brewer of the crime of murder committed as follows, to-wit: The said defendant on the 15th day of February, 1969, in Ashley County, Arkansas, did unlawfully, wilfully and with malice aforethought, shoot and kill PETE HADLEY with a 32 calibre pistol, against the peace and dignity of the State of Arkansas. * # *”

The attorney for Brewer filed a motion for a bill of particulars as follows:

“* * * Comes the defendant, LEOTIS BREWER, by and through his attorney, and for his Motion, states: That the Information filed herein charges defendant with murder; that the State should be required to file a Bill of Particulars setting forth the following:
(a) The exact manner in which the alleged murder was committed. . .”

A response to the motion was filed as follows:

“* * * In response to item one, we report that the Death of Pete Hadley occurred on Feb. 15, 1969. That the death occurred as follows: Leotis Brewer went to Cox’s Honky Tonk in Montrose, Ark. and began to dun one Eugene Morris for $1.00 Dollar that Eugene Morris owed him. That Pete Hadley was asleep on a small bed next to the wall and was not having anything to do with the argument between Eugene Morris and Brewer; That Brewer pulled out a 32 Cal Pistol, and fired it one time at the feet of Eugene Morris. He then shot 3 times into the ceiling. When this happened, Pete Hadley, got up, and walked passed them and went outside. Leotis Brewer then followed Pete outside and started to curse Pete. He then pointed the 32 pistol at Pete and fired one time; hitting him in the left shoulder, causing his death. * *

Brewer was charged with the crime of murder, which is defined in Ark. Stat. Ann. § 41-2201 (Repl. 1964) as follows:

“Murder is the unlawful killing of a human being, in the peace of the State, with malice aforethought, either express or implied.”

By statute the crime of murder is broken down into two degrees as follows:

§ 41-2205 “All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.”
§ 41-2206 “All other murder shall be deemed murder in the second degree.”

There is a lesser degree of homicide defined in our statutes as manslaughter. Section 41-2207 is as follows:

“Manslaughter is the unlawful killing of a human being, without malice express or implied, and without deliberation.”

Manslaughter is also broken down into two degrees as voluntary manslaughter, § 41-2208, and involuntary manslaughter, § 41-2209. Manslaughter is actually a degree of murder less than second degree. Ellis v. State, 234 Ark. 1072, 356 S. W. 2d 426. Ark. Stat. Ann. § 43-2149 (Repl. 1964) provides as follows:

“Upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charge in the indictment.”

This section is followed by § 43-2150, as follows:

“The offenses named in each of the subdivisions of this section shall be deemed degrees of the same offense, in the meaning of the preceding section:
First. — All offenses of homicide.
# * #
Sixth. — An offense, and an attempt to commit the offense. Offenses punished capitally are of the highest degree; other felonies are of higher degree than misdemeanor; and those punished by imprisonment of higher degree than those punished by fine alone. Where the punishment is the same in kind, the amount that may be inflicted fixes the degree.” (Emphasis added).

Ark. Stat. Ann § 43-2152 is as follows:

“The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury.”

Section 43-1012 is as follows:

“No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merit.”

Finally, Initiated Act No. 3 of 1936, Ark. Stat. Ann. § 43-1006 (Repl. 1964) provides as follows:

“The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations. The State, upon request of the defendant, shall' file a bill of particulars, setting out the act or acts upon which it relies for conviction.” (Emphasis added).

The jury was instructed on first and second degree murder, as well as voluntary and involuntary manslaughter.

In support of his first point, Brewer argues that the information only charged him with "murder,” and that the specific words employed in the information ("unlawfully, wilfully and with malice aforethought”) are the elements of second degree murder and not first degree. He contends that before the information can support a charge of first degree murder it must recite the additional elements ("premeditation and deliberation”) necessary to that degree of homicide. He argues, therefore, that he was only charged with second degree murder and that the trial court erred in overruling his motion for a directed verdict on first degree murder. Brewer’s motion for a directed verdict appears in the following language:

"Your Honor, I would like at this time to move that the charges against the Defendant be dismissed, because the State has failed to pi ove their case beyond a reasonable doubt. They have failed to meet their burden of proof. And, in the alternative, I move that the charge of first deg murder be dismissed against the Defendant, because tne State has failed to prove their case on this point beyond a reasonable doubt.”

The motion as renewed at the close of all the evidence appears in language as follows:

"I would like to renew my motion for a directed verdict and my motion for a dismissal of the charges against the Defendant.
* * #
... I would also like to renew my motion for dismissal of the charge of first degree murder against this defendant, that the jury be given no instructions regarding first degree murder, because the evidence in the case as a matter of law does not prove the necessary elements for that offense.”

Brewer argues that the language of an information should charge an offense with such certainty as to give the defendant notice of the charge he is called to face, and that it was error for the trial court to instruct the jury on first degree murder when a lower degree of homicide was charged in the information. He further argues that even if the information had clearly charged murder in the first degree, the trial court erred in refusing to direct a verdict as to said degree, and in instructing the jury thereon, because the state failed to prove him guilty of first degree murder beyond a reasonable doubt.

Brewer filed a request for a bill of particulars as above set out and as he had a right to do under the statute, § 45-1006. His request for a bill of particulars was complied with, as above set out, and apparently to his satisfaction.

It is perfectly clear from the motions for dismissal that Brewer knew that he was charged with first degree murder. He argues here, however, that the trial court erred in giving an instruction on first degree murder because the state failed to prove him guilty of first degree murder beyond a reasonable doubt.

It would appear that Brewer overlooks the fact that he was not found guilty of first degree murder but was only found guilty of second degree murder. He is in no position to complain of the trial court’s failure to direct a verdict for him as to the charge of first degree murder when the jury acquitted him of that degree by its verdict. Neither is Brewer in a position to assert reversible error in giving the instruction on first degree murder because the state failed to prove him guilty of first degree murder beyond a reasonable doubt, when the jury completely agreed with him on that point and he stands acquitted of the charge of first degree murder by the jury verdict of guilty on the lesser charge of second degree murder. Easley v. State, 109 Ark. 130, 159 S. W. 36; Carlton v. State, 109 Ark. 516, 161 S. W. 145; Paul v. State, 125 Ark. 209, 188 S. W. 555; Wilson v. State, 126 Ark. 354, 190 S. W. 441; Hays v. State, 129 Ark. 324, 196 S. W. 123; Jordan v. State, 141 Ark. 504, 217 S. W. 788; Witham v. State, 149 Ark. 324, 232 S. W. 437; Bird v. State, 154 Ark. 297, 242 S. W. 71; Williams v. State, 162 Ark. 285, 258 S. W. 386; Sullivan v. State, 163 Ark. 353, 258 S. W. 980; Daniels v. State, 182 Ark. 564, 32 S. W. 2d 169; Mustain v. State, 189 Ark. 887, 75 S. W. 2d 800; Bone v. State, 200 Ark. 592, 140 S. W. 2d 140; Edwards v. State, 208 Ark. 231, 185 S. W. 2d 556; Wootton v. State, 232 Ark. 300, 337 S. W. 2d 651.

Brewer has certainly shown no prejudice to his substantial rights by the information and the instructions thereon in the case at bar. He argues that the information only charged second degree murder. Brewer was only found guilty of second degree murder. The court properly instructed the jury on all the degrees of homicide within the charge of “murder,” and there was sufficient evidence to sustain the conviction of murder in the second degree.

As to Brewer’s second point, Ark. Stat. Ann. § 41-116 (Repl. 1964) provides as follows:

“Acts committed by misfortune or accident, shall not be deemed criminal, when it appears there was no evil design, intention, or culpable negligence.”

We are of the opinion that the evidence did not justify an instruction on misfortune or accident. The early case of McAdams v. State, 25 Ark. 405, involved substantially the same questions of law as does the case at bar. In that case the appellant stood convicted of murder in the first degree on an indictment charging murder. In that case the appellant requested, and the trial court refused to instruct the jury,

“ ‘That, if the jury believe from the evidence, that the killing was accidental, and without any willful and malicious intent, they must acquit the prisoner.’ ”

In disposing of the point raised on appeal, this court said:

“From a careful examination of the testimony brought up by the record, we find none to support this instruction. We think the testimony so clearly opposed to the instruction, that it seems that the jury could not have drawn an inference of accident from it, and the only effect the instruction could have had, would have been to mislead the jury. This court held, in the case of Saddler v. Saddler, 16 Ark. 628: ‘That it is error in the court to give an instruction not warranted by the testimony, and which may mislead the jury.’ See Worthington v. Card [Curd], 15 Ark. 492 [491].”

In Casteel v. State, 73 Ark. 152, 83 S. W. 953, relied on by Brewer, the testimony was considerably different from that in the case at bar. In Casteel the appellant testified that he and the deceased were the best of friends; that he fired his pistol into the ground as a part of a fireworks display on Christmas and didn’t even see the deceased at the time he fired the weapon, and had no knowledge that the deceased had been shot until someone told him. He then told the deceased how sorry he was and assured him that he would take care of all medical expenses. In the case at bar Brewer testified that after arguing with Hadley he told Hadley to stay away from him; that Hadley had his hand in his pocket and he knew Hadley carried a knife. He says that Hadley was larger than himself and that he knew what Hadley would do to him if he got his hands on him. He testified that he did not exactly intend to shoot Hadley, but only intended to scare him off with the pistol. He testified that he was afraid of Hadley. The appellant, in no event, would have been entitled to an instruction on homicide by misfortune or accident under Ark; Stat. Ann. § 41-116 (Repl. 1964) unless it appeared that there was no evil design, intent, or culpable negligence. Even though the appellant testified to the effect that he had no intention of shooting the deceased, when his testimony is given its strongest probative force, there is nothing in that testimony which eliminates culpable negligence on his part in the handling and discharge of the weapon.

As to Brewer’s third point and last assignment of error, his requested instruction No. 1 is as follows:

“An attempt to commit any aggravated felony upon the person of another shall be justification for homicide. If you find that, under the circumstances, Leotis Brewer reasonably feared that Pete Hadley was attempting to commit an aggravated felony on his person, and that Leotis Brewer killed Pete Hadley while acting under the influence of such fears, or if you have a reasonable doubt in your minds as to whether Leotis Brewer was justified in his actions, then you will find Leotis Brewer not guilty.”

This instruction tells the jury that if they have any reasonable doubt as to whether Brewer was justified in killing Hadley, then they should find Brewer not guilty. The fallacy in this offered instruction is obvious.

The testimony of Brewer and his brother that they thought the deceased might have a knife and was about to assault Brewer, was the only evidence indicating self-defense, and was the only evidence that entitled Brewer to an instruction on justifiable homicide. The court gave two instructions on this point, as follows:

“Justifiable homicide is the killing of a human being in necessary self-defense of one’s person, his home or his property, against one who manifestly intends or endeavors by violence or surprise to kill him or to cause him bodily injury or defile his home or forcibly take his property.
If a person kills another in self-defense, then he shall not be deemed guilty of any crime. If you believe from the evidence that Leotis Brewer had reasonable cause to believe that Pete Hadley was approaching him with intent to take his life or to commit an aggravated assault on his person, and the danger was eminent and that he had done all he could to avoid the difficulty without retreating, then you will find Leotis Brewer not guilty.”

Brewer contends that the trial court merely instructed the jury on the definition of justifiable homicide and failed to advise them that justifiable homicide is a defense. The second of the above instructions negates this contention. Brewer also contends that the court’s instruction makes it appear that the killing must be actually necessary in order to constitute justifiable homicide. We do not agree. The second of the above instructions also negates this contention.

The judgment is affirmed.