author: Hart, J.

text:
    Mitchell v. Directors of School District No. 13.
    Opinion delivered April 3, 1922.
    1. Schools and school distrícts — validity of acts creating county boards. — Act March .11, 1919 (Acts 1919, No. 234) creating county boards of education and conferring upon them power to form new school districts or to alter the boundary lines of existing ones, is valid and not in conflict with Const, art. 7, § 28, providing that county courts shall have exclusive Driginal jurisdiction over local concerns of their respective counties.
    2. Schools and school districts — notice of proceedings to change boundaries. — Acts 1919, No. 234, creating county boards of education and conferring on them power to form new districts or alter the boundary lines of existing ones, merely changed the tribunal which was authorized to act, but not the method of procedure, and did not repeal Crawford & Moses’ Dig., § 8821, requiring notice of the change before the petition is presented to .the county board, and such notice in a proceeding before the board is jurisdictional.
    3. Schools and school districts — review of proceedings before county board. — The acts of a county hoard of education in respect to changing boundary lines of school districts are quasi ■ judicial, and certiorari lies to review such proceedings.
    Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;
    reversed.

      STATEMENT OF FACTS.
    This proceeding was instituted in the circuit court by certiorari by appellants against appellees to review the action of the county board of education of Jefferson County, Ark., in taking from common school district No. 6 four sections of land and adding the same to common school district No. 15.
    On the 21st day of May, 1921, the diréctors of school district No. 15 presented a petition to the county board of education of Jefferson County, Ark., asking that the boundary lines between school district No. 6 and school district No. 15 be changed so as to take four sections of land from school district No. 6 and add the same to school district No. 15. The petition was granted by said board.
    The' directors of school district No. 6 allege that said petition did not. contain a majority of the electors of either district No. 6 or district No. 15, or of both districts combined. They also allege that proper notice was not given as required by law prior to the filing of said petition with the board of education of Jefferson County, Arkansas.
    The prayer of the petition is that the order of said board changing the boundaries between said districts as aforesaid be set aside and held for naught.
    The circuit court sustained a demurrer to the petition, and the plaintiffs, who are appellants here, electing to stand upon their demurrer, their complaint was dismissed and judgment was rendered in favor of the defendants, who are appellees in this court. To reversé that judgment appellants have duly prosecuted this appeal.

      Brockman & Lucas, for appellant.
    Act 234 of the Acts of 1919 merely transferred certain powers of the county judge to the county board of education, but the manner of procedure to effectuate this purpose was not changed. Therefore notice, as provided in sec. 8821, C. & M. Digest, should have been given. 105 Ark. 7; 116 Ark. 291. It is a prerequisite to the filing of the petition and the exercise of jurisdiction by the board.
    The petition is jurisdictional. 104 Ark. 145; 119 Ark. 149; 119 Ark. 492.
    No appeal whs authorized by the act, and the only remedy is by certiorari. Certiorari will lie where the inferior tribunal has exceeded its jurisdiction; or where it has proceeded illegally and no appeal will lie, but that the right has been unavoidably lost. 52 Ark. 213; 131 Ark. 211.; C. & M. Dig., §§ 2237-9. The county board acts in a quasi-judicial manner, and its actions.is subject to review on certiorari. 109 Ark. 100; 11 C. J., § 27, p. 102; 126 Ark. 125.

      Caldwell, Triplett <B Ross, for appellee.
    The Legislature in passing act 234 took away from the county court and vested in th¿ county board of education the authority to change the boundaries of school districts, and the act repealed all others in conflict therewith, which necessarily repealed sec. 8823, C. & M. Digest. The Legislature has complete control in such matters (111 Ark. 379; 119 Ark. 592), and it can delegate its authority to a board created for the purpose. 96 Ark. 410; 106 Ark. 151; 109 Ark. 433. No petition for changing the boundaries of districts was provided for in the above act.
    Certiorari will not lie to review the action of the board. 106 Ark. 151; 96 Ark. 410.
   Hart, J.

(after stating facts). The Legislature of 1919, by act 234, approved March 11,1919, creates county boards of education, and section four of the act gives to said boards the direction and supervision of the public schools of their respective counties, and also provides that said board, among other powers granted, shall have the power to change the boundary lines between school districts. Section 4 of said act is § 8876 of Crawford & Moses’ Digest.

Prior to the passage of the act of 1919 conferring jurisdiction upon the county board of education to change the boundary line between school districts, that power was granted to the county court. Section 7544 of Kirby’s Digest. Section 8823 of Crawford & Moses’ Digest simply substitutes the county board of education for the county court, in conformity with the transfer of the jurisdiction from the county court to the board of education in forming new school districts and changing the boundaries of the old ones.

It is suggested that the Legislature was without power to make this change. This proposition has already been decided adversely to that contention by this court. This court has expressly held that the Legislature has the power to establish new school districts and to change the boundaries of those established for any reason that may be satisfactory to it. The court expressly said that whatever power the Legislature has. lawfully conferred upon county courts in these respects, it may take away and confer upon other agencies or tribunals. School District of Hartford v. W. Hartford Sp. Dist. 102 Ark. 261; Common School District No. 13 v. Oak Grove Special School District, 102 Ark. 411, and Norton v. Lakeside Special School District, 97 Ark. 71.

It is true that in none of these cases did the court discuss in its opinion the effect of article 7, § 28, of the Constitution of 1874, providing, among other things, that county courts shall have exclusive original jurisdiction over the internal improvements and local concerns of their respective counties. The effect of all our previous decisions, however, bearing on the subject, show that the court did not consider the jurisdiction to form school districts or to change the boundaries was conferred upon county courts under the provisions of the Constitution referred to, but that it has always been considered a purely statutory power.

In each of the cases cited above the court expressly held that a school district is a creature of the Legislature or some governmental agency named in the Legislature, and that the Legislature may create, alter, or abolish school districts at will. Under the statute single school districts may be formed by incorporated towns in the manner provided by the statute without the intervention of the county court. Beavers v. State, 60 Ark. 124. This could not be done if the section of the Constitution above referred to placed exclusive jurisdiction in the county court.

Therefore, we are of the opinion that the act of the Legislature of 1919 conferring upon county boards of education the power to form new school districts or to alter the boundary lines of existing ones is valid and constitutional.

It is the contention of counsel for appellants that the action of the county board in transferring the four sections of land from school district No. 6 to school district No. 15 is invalid because the notice required by § 8821 of Crawford & Moses’ Digest was not given. That section provides, in substance, that notice of the proposed change shall be given in the form provided by the statute by posting the same thirty days before the convening of the court at which the petition shall be presented.

In Lewis v. Young, 116 Ark. 291, this court held that the giving notice of change as prescribed by the statute was a prerequisite to the exercise of jurisdiction in the premises by the county court. Other courts have held that similar statutory requirements are jurisdictional, and that a failure to comply with them invalidates the organization of the school district and all taxation resulting therefrom. Perryman v. Bethune, (Mo.) 1 S. W. 231; Noble v. White, (Ky.) 77 S. W. 678; Gentle v. Board of School Inspectors, (Mich.) 40 N. W. 928; Fractional School Dist. No. 3, etc. v. Board of Inspectors, etc. (Mich.) 30 N. W. 198; State v. Supervisors of Town of Clifton, (Wis.) 88 N. W. 1019.

But it is contended by counsel for appellee that § 8821 of Crawford & Moses’ Digest is no longer in force. They contend that the court took np the whole subject anew in the act of 1919 above referred to, and that this had the effect of repealing the section requiring notice of the change before the petition therefor was presented-to the county court.

We do not agree with counsel for appellees in this contention. The act of 1919 only had the effect to transfer the power to make the change from the county court to the county board of education, and it in no wise affected the mode of procedure.

Section 8877 of Crawford & Moses’ Digest provides that the county board of education shall meet at least four times each year and prescribes the time of holding the regular meetings of said board and that three members thereof shall constitute a quorum. The object of the notice required by the statute was to enable parties whose interests might be affected to be heard before any action is taken, and there would be just as much need for requiring the notice in a proceeding before the county board of education as in a proceeding before the county court. It is evident from reading the act of 1919 that its purpose was merely to change the tribunal which had power to act and not to change the method of procedure in the premises.

As we have already seen, the notice required by the statute is jurisdictional, and there is nothing in the act of 1919 which shows that the Legislature intended to dispense with this requirement.

Again, it is sought to uphold the judgment of the circuit court on the ground that, under the statute, the action of the county board of education is purely administrative, and that a writ of certiorari will not lie-to review its proceedings.

As we have already seen, the statute merely changes the power1 to act in the premises from one tribunal to another. We have held in several casés that the county court exercised discretion with respect to the power conferred upon it in the change of boundaries of common school districts. Hale v. Brown, 70 Ark. 471; Stephens v. School District No. 85, 104 Ark. 145; Carpenter v. Leatherman, 117 Ark. 531; School Dist. No. 45 v. School District No. 8, 119 Ark. 149, and Rural Special School District 17 v. Special School District No. 56, 123 Ark. 571. The same reason would apply for holding that the county board of education has discretion under the statute. As we have just seen, the statute only changes the jurisdiction to act from one tribunal to another, and we are of the opinion that the county board of education acts in a quasi judicial manner in the premises. No appeal from the order of the board of education is given by the statute. .It follows that a writ of certiorari will lie to review the proceedings of the hoard. Hall v. Bledsoe, 126 Ark. 125.

As we have already seen, the petition of appellants show that the statutory requirement as to notice was not given, and the circuit court should have issued the writ of certiorari and granted the prayer of appellants’ petition.

The judgment of the circuit court is therefore reversed, and the cause is remanded, with directions to overrule the demurrer to appellants’ petition and for further proceedings according to law.


source: Caselaw Access Project

license: Public Domain

text:
    Bank of Commerce of Earle v. Fairbank.
    Opinion delivered April 3, 1922.
    1. Mortgages — absolute deed as security. — The chancellor’s finding that a deed absolute on its face was intended as a mortgage held sustained by the evidence.
    2. Interest — allowance of compound interest. — Where a loan was made in a foreign country in which it was customary to compound interest, it was not error to charge the borrower compound interest in ascertaining the indebtedness due to the lender.
    3. Account stated — failure to make objection. — An account ren- . dered, after lapse of a reasonable time, without objection by the debtor, becomes an account stated.

      4. Tenancy in common — liability for improvements. — A tenant in common is not required to contribute to permanent improvements made by his cotenant without his knowledge or consent.
    5. Mortgages — bad faith of.trustee. — evidence.—Evidence held insufficient to prove that a trustee who held land for purpose of sale acted in bad faith in selling it for less than the market price'.
    6. Appeal and error — conclusiveness of chancellor’s finding.— Findings of fact made by a chancellor will not be disturbed on appeal unless against the preponderance of the evidence.
    Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor;
    affirmed.
    STATEMENT OR RACTS.
    Appellant brought this suit in equity against appellees to recover judgment on certain notes executed to appellant by William English, and to have a deed, absolute on its face, executed to Isaac G-reenizen -by the other appellees declared to be a deed of trust, and for an accounting between the parties.
    Appellant states that it has a second mortgage on said lands to.secure it in a large indebtedness owed it by English, and asks that an attachment be levied on said lands.
    Appellees defended on the ground that the conveyance of the lands to Greenizen by the other appellees was an absolute conveyance, and that, if such conveyance be declared a deed of trust, the property embraced therein is not sufficient to pay the indebtedness mentioned therein.
    It appears from the record that in 1907, J. H. Fair-bank and William English of Petrolea, Ontario, Canada, purchased something like 4,300 acres of land in Crittenden and Cross Counties, Ark. Fairbank conducted a banking business in the town of Petrolea and furnished the money with which to purchase the lands. The title was taken in the name of English, but it was agreed between the parties that Fairbank should* have a fourth interest and English a three-fourths interest in the lands. The lands were principally timber lands, and they operated a sawmill on them for about six years. English came to Arkansas and had personal charge of the mill. Fairbank furnished the money with which they operated it. English put about three hundred acres of the lands in cultivation. Their lumber business was not profitable, and on July 31, 1913, English owed Fairbank $43,005.25. On that date English conveyed all of said lands to Fair-bank, and on the same date Fairbank reconveyed to English an undivided three-fourths interest in said land, reserving a lien thereon to secure said debt of $43,005.25. After this time English operated on his own account and cleared and cultivated a part of the lands, using them for his own benefit. Fairbank, however, made English additional loans of money. Fairbank died testate on February 24, 1914, leaving surviving him a son, C. 0. Fairbank, and a daughter, Mary Edna Eock, as his sole heirs at law and the devisees under his will. The children of J. H. Fairbank, deceased, became his executors and as such made further advances to English until his indebtedness to the Fairbank estate amounted to something like $140,000 on November 22, 1916. . On this date, William English and his wife and C. O. Fairbank and Mary Edna Eock individually, and as executors of the estate of J. H. Fairbank, deceased, united in a conveyance of all said Arkansas lands to Isaac G-reenizen, a solicitor and barrister of Petrolea, Ontario, and the representative of the Fairbank estate.
    According to the testimony of G-reenizen, this conveyance on the part of English was absolute, and G-reenizen held the title as trustee for the Fairbank estate in order to facilitate future sales and conveyances of the lands.
    According to the testimony of English, the instrument was intended as a deed of trust to secure the indebtedness that English owed the Fairbank estate. On November 23, 1916, G-reenizen leased to English for the years 1917, 1918 and 1919 about 600 acres of said lands which had been cleared, at an annual rental of $6,000. English did not pay the rent for 1917, and in May, 1917, G-reenizen obtained judgment against him for $6,000, "with interest, from November 15, 1917.
    Subsequent to tbe execution of tbe deed to Greenizen and after it was filed for record, English, on February 19, 1917, executed to appellant and another bank in Memphis, Tenn., a mortgage on said lands for $30,000, which is now due and unpaid. The Memphis bank duly transferred its mortgage and the debt it was given to secure to appellant. At the time of the conveyance to him by English and Charles O. Fairbank, and Mary Edna Bock, Greenizen was given the power to sell said lands after paying off the mortgage indebtedness of English to account to him for his share of the proceeds according to his interest in the lands.. In May, 1917, and in April, 1918, when making title to certain of said lands to certain purchasers, Greenizen discovered other encumbrances which English had placed on the lands before the deed to Greenizen was executed, and paid off same. The amount of one of these incumbrances was $5,650.60, and the other amounted to $7,552.30. Greenizen made sales of all of said lands except two tracts, and had made executory contracts for the sale of these two tracts at the time this controversy arose. After paying the proceeds of English’s three-fourths interest in the lands towards the satisfaction of his mortgage indebtedness to the Fairbank estate, English was still in debt to that estate in the sum of $20,582.42 on December 31,1918.-
    Other facts will be stated in the opinion.
    The chancellor made a special and general finding of fact in favor of Isaac Greenizen and O. O. Fairbank and Mary Edna Bock individually and as executors of the estate of J. H. Fairbank, deceased, and it was decreed that the complaint of appellant be dismissed as to it for want of equity. The appellant was given judgment against "William English in the sum of $30,000.
    To reverse that part of the decree which was against it, appellant has duly prosecuted an appeal to this court.

      Ewing, King <& King and Hub Blair, for appellants.

      Hughes S Hughes, for appellees.
   Hart, J.

(after stating the facts). We are of the opinion that the chancellor was right in holding that the conveyance of the Arkansas lands hy William English and C. 0. Fairbank and Mary Edna Bock to Isaac Greenizen, although absolute on its face, was intended as a deed of trust to secure the Fairbank estate in the amount owed it by English, and that the title was placed in Greenizen to enable him to sell the lands and. to account to the parties for their respective interests after the mortgage indebtedness was taken out of the share of the lands owned by William English. This was the construction put upon the instrument by the parties themselves. Greenizen was allowed to take charge of the lands and to begin to sell the same, and to account to the parties for the proceeds according to their respective interests, and to apply the proceeds from the sale of the interest of English towards the satisfaction of his mortgage indebtedness to the Fairbank estate. There is no dispute between the parties as to their respective interests in the lands, or to the principal of the mortgage indebtedness of English to the Fairbank estate.

Counsel for appellant, however, contend that there is an error against English in a large amount on account of interest charges. In other words, it is claimed that the court erred in allowing interest in favor of the Fair-bank estate against English calculated at the rate of 6% per annum on monthly or quarterly balances.

According to the testimony of English, J. H. Fair-bank, in his life time, promised to adjust the interest account between them on an equitable basis.

A. M. McQueen, under power of attorney from the executor, was in full control of the estate of J. H. Fair-bank, deceased, until May, 1916. He had also been in charge of the Fairbank estate from 1892 to the time of the death of J. H. Fairbank. According to his testimony, accounts were rendered by the 'bank to English at stated intervals. These accounts showed that 6 per cent, per annum was charged English. This was the lowest and the customary bank rate. It was the general banking custom in Ontario to compound interest monthly on overdrafts, but, where notes were given to cover overdrafts, the custom was to compound the interest quarterly. English’s bank pass book and the statement of his accounts was submitted to him periodically, perhaps monthly, and the accounts so submitted to English included the interest charges; and at no time while McQueen was bank manager did English in person, or through another, make any complaint about the interest charges.

Grreenizen testified that English never made1 any complaint to him that the interest charged on his accounts was excessive, but, on the contrary, admitted the correctness of his accounts on more than one occasion.

C. 0. Fairbanks testified that he made no agreement with English relative to any matter in the case. It was shown that these bank statements were regularly submitted to English’s agent in Canada while English was in Arkansas.

It also appears from the record that English made periodical trips back to Ontario. It does not appear that McQueen has any interest whatever in this case. If bis statement about the submission of the accounts to English’s agent in Ontario is not correct, that fact could have been easily established by such agent. It was the duty of English to have examined his accounts when they were delivered to him by the bank and to have notified the bank in a reasonable time that the charges were improper, if he deemed them to be so. It will be remembered that the bank belonged to J. H. Fairbank, and the account it rendered to the agent of English of the state of the accounts between English and-J. H. Fairbank became a stated account when English failed to object to the same within a reasonable time after they were delivered to him. Citizens’ B. & T. Co. v. Hinkle, 126 Ark. 266.

Appellant could have no greater rights in the premises than English. Therefore, the chancery court did not err in holding against appellant on the item of interest charges.

In connection with the interest charge, the contention is made that it was unlawful to charge compound interest. Isaac Greenizen was a practicing barrister and solicitor of Petrolea, Ontario, and as such has been engaged in the practice of the law there for’ many years. He had represented J. H. Fairbank as attorney for many years prior to his death in 1914, and since that time has' represented the estate. Greenizen stated further that he had been familiar with banking transactions in that country for over thirty years, and knew that it was the custom of banks in Ontario to charge interest at the rate of 6 per cent, on loans of money and to compound the interest quarterly, and that such compounding of interest was legal in Ontario.

As we have already seen, McQueen, who had charge of the bank until in 1916, testified to the same fact. Hence the transaction was not an illegal one, and, as above stated, the accounts became accounts stated after the lapse of a reasonable time after their delivery to English.

It may also be stated that counsel for appellant claim that the court erred in not allowing English for the amounts expended by him in clearing some of the lands. We do not agree with counsel in this contention. It will be observed that Fairbank and English were tenants in common in the lands, and that English owned a three-fourths interest therein. The lands were principally timber lands, and it was expected that their chief profit would be derived from the sale of the timber. Fairbank furnished English with money with which to cut and remove the timber. English, after cutting the timber off of the lands and disposing of it, cleared and cultivated a part of them. The lands were situated in Arkansas, and English acted for' his own benefit in clearing and cultivating them. Fairbank remained in Ontario, and it does not appear that he knew anything about English clearing the lands and cultivating the same. English collected the rents and used them. Under these circumstances Fairbank would not be required to contribute to the permanent improvement of the lands made without his knowledge or consent. Dunavant v. Fields, 68 Ark. 534, and Lemly v. Works, 138 Ark. 426.

It is next contended that Greenizen committed a breach of trust in his disposition of the lands. It will be remembered that when the deed to Greenizen to the lands was executed by William English and C. 0. Fair-bank, and Mary Edna Rock, on November 22,1916, it was contemplated that Greenizen should sell the lands and distribute the proceeds between the parties according to their respective interests, after satisfying the mortgage indebtedness of English out of his interest. English had a three-fourths interest in the lands, and the Fair-bank estate a fourth interest in the lands. Greenizen had sold all of the lands except two tracts and had applied English’s share towards the satisfaction of the mortgage indebtedness before the present controversy. It is not contended by counsel for appellant that Greenizen was guilty of any breach of trust with regard to these sales, but it is contended that .Greenizen was guilty of a breach of trust with regard to the remaining tracts which he had made an executory contract to sell at the time the present controversy arose.

' It is contended by counsel for appellant that Greenizen had contracted to sell these lands .for $40 per acre and less, when in fact they were worth and he could have sold them for $60 to $65 per acre. Witnesses for appellant testified that the lands in question were worth $65 per acre and upwards and that Greenizen sold them for $40 per acre, and that he had sold one of the tracts to his own agent for something less than $40 per acre.

On the other hand, witnesses for appellees stated that Greenizen acted in perfect good faith in the matter and sold the lands for all that he could get for them. He employed local agents to sell the lands with direetions to sell them for the best price obtainable. The local agents bargained to sell both of these tracts for the best price obtainable, but the sale was prevented on account of the present controversy. Subsequently one of the local agents told Greenizen that he would take the lands at the price he had sold them for, if Greenizen would deduct his commission from the purchase price. Greenizen agreed to do this. This act resulted in no loss to the estate. For, if the sale to the third party by the agent had been carried out, the local agent making the sale would have been entitled to his commission and the purchase price would have been reduced by that amount. The local agent and other witnesses for appellees testified that the lands were sold for1 the best price obtainable and that the price which they sold for was a fair one.

One of the witnesses for appellees testified that other lands had been sold in the same neighborhood for a somewhat less price. Three witnesses on each side testified with regard to the price for which the lands were sold. Those for appellant maintained that the lands were sold too low, and those for appellees being equally positive that the lands sold for all they could have been sold for, and for all they were worth.

■ Greenizen rendered a full account of all his acts as trustee, and there is nothing in the record which tends to reflect upon his conduct. At any rate, the chancellor found the issues with regard to his alleged breach of faith in the sale of the lands in his favor, and it cannot be said that his finding is against the weight of the evidence and on that account should be reversed.

It may be here noted that, under the settled and familiar -rules of practice, the findings of fact made by a chancellor will not be disturbed on appeal unless they are against the preponderance of the evidence.

Complaint is made against the trustee with regard to ether items of his account. But the chancellor found the issues in his favor, and we cannot say that his finding is against the preponderance of the evidence. We do not deem it necessary to discuss these matters in detail, for the reason that, even if it should be said that the finding of the chancellor as to them is against the weight of the evidence, no error prejudicial to the rights of appellant would be committed. The reason is that the aggregate amount of these omitted items would not total by a good deal the amount of the balance of the mortgage indebtedness of English to the Fairbank estate. English has not appealed..

It follows that the decree will be affirmed.


text:
    Wisconsin & Arkansas Lumber Company v. Scott.
    Opinion delivered April 3, 1922.
    1. Negligence — proximate cause. — To be actionable, negligence must be the proximate cause of the injury complained of; “.proximate cause” being a cause from which a person of ordinary experience and sagacity could foresee that the result might probably ensue.
    2. Master and servant. — proximate cause op injury — instruction. — Where a workman, engaged in unclogging a conveyor trough which had become clogged by reason of its defective condition, fell and caught his clothing on a set screw of a revolving line shaft, and was killed, while it was proper to submit to the jury whether the master was negligent in failing to cover the set screw as the proximate cause of the injury, an instruction which permitted the jury to find negligence in allowing the conveyor chain to become clogged by reason of the defective condition of the trough was erroneous, as such negligence, if proved, could not have been the proximate cause of the injury.
    3. Master and servant — questions for jury. — In an action for the death of an employee, caught on a set screw of a revolving line shaft, while obeying his superior’s command to unchoke a conveyor chain, held that the question of contributory negligence and assumed risk were for the jury.
    Appeal .from Howard Circuit Court; A. P. Steel, special Judge;
    reversed.

      STATEMENT OP PACTS.
    This is an action by the administrator to recover damages for the death of his decedent, and damages were awarded by the jury under the instructions of the court.
    The case is here for the second time. On the former appeal it was held that the trial court erred in telling the jury as a matter of law that his decedent assumed the risk. It was held further that the question of the negligence of the defendant and the. question of contributory negligence on the part of the decedent and his assumption of risk under the surrounding circumstances should be left to the jury. Scott v. Wisconsin <& Arkansas Lumber Go., 148 Ark. 66.
    On the first trial of the case the circuit court was of the opinion that the plaintiff, on account of his position and familiarity with the machinery of the defendant, assumed the risk, and the most part of the opinion of this court was directed to a discussion of that phase of the case and in setting forth the reasons why, under the peculiar circumstances of the case, it should not be said as a matter of law that Scott assumed the risk. After concluding a lengthy discussion of this branch of the case the court said:
    “Therefore, if the appellee was negligent in having a projecting set-screw at the place where the same was located, and if the deceased had no knowledge of such defective condition and did not appreciate the danger thereof, and if the defect and danger were not so open and obvious that, in the exercise of ordinary care in the performance of his duties, he should have discovered same and have known and appreciated the danger, then he did not assume the risk if he was discharging his duty of unclogging the sprocket wheel and conveyor chain in the customary way acquiesced in by the appellee. ’ ’
    Continuing, the court discussed the feature of the case bearing upon the liability of the defendant resulting from Scott carrying ont the orders of his superior in keeping the machine running, and his consequent injury while so employed.
    It appears from the record that Roy Scott had been lath foreman for about two and a half years before he was killed. It was his duty to keep the conveyor chain going, but he had nothing to do with making repairs on it. On the ground floor there was a machine called a hog, that cut slabs into pieces from a half inch to four inches long. These particles were carried away by convey- or chains to the fuel house and supplied the 'boilers with fuel. The fuel was carried from the hog on a conveyor chain about twelve or fourteen feet long, and was then poured into a second conveyor trough, which carried it up an incline about 100 feet long to a height of about 15 or 18 feet from the floor. • This conveyor chain ran over a sprocket wheel at its upper end, and was endless. The fuel passed over the sprocket wheel and was poured into another conveyor trough at right angles, which carried it to the fuel room next to the boilers. The bottom of the second or long conveyor trough was lined with tin or sheet iron and was worn in holes in places. Close to the top of it was the worst place. These defects in the lining caused particles of fuel to catch in the defective places and accumulate and eventually to clog the chain. Sometimes a long plank would fall down from the floor above and catch on the conveyor chain and be carried along it and then become entangled in the sprocket wheel, and thereby cause the chain to be lifted off of the sprocket wheel. This condition was discovered to exist after the accident in question. When in such condition the sprocket wheel would revolve but it would not catch the chain and carry it around. This condition would cause the chain to become choked or clogged. There was a plank walk-way to the left of the conveyor trough which was used for the purpose of going up there to -unchoke the conveyor chain. It was customary to go up there on this plank run-way and unchoke the chain before the machinery stopped.

      On the morning of the injury, Scott’s superior told him that they -were short of fuel and to shove along all the fuel possible. Scott told Ms superior about the defects in the conveyor trough and said that he did not know whether he could do as required until the defects were repaired. His superior said, “Watch it close today, we have to have fuel today, and keep it going and I will have it fixed tomorrow.” Scott told him that he would do his best. Early in the afternoon Scott was informed that the conveyor trough had 'become choked with accumulated fuel, and he went up the walk-way to see about it. It is fairly inferable from the evidence that he went to the end of the walk-way, which was about two feet from the sprocket wheel, and found that a plank three or four feet long had in some way been carried up the conveyor chain and fastened itself into the sprocket wheel, pushing the conveyor chain off of it so that it did not revolve and thereby allowed particles of fuel to accumulate. While endeavoring to unchoke the conveyor chain, Scott had evidently slipped or fallen to one side, and his clothes became entangled in a set screw which was attached to the collar on a revolving line shaft near by. In any event, when his body was found, his clothes were attached to the set screw and had become wrapped around the revolving line shaft, thereby causing his death. The set screw was attached to a collar on the revolving line shaft to the left of and near to the sprocket wheel to which the conveyor chain was attached and around which it revolved. No one was present when Scott was killed, but it is fairly inferable that he slipped and fell while unchoking the sprocket wheel, and in falling his clothes became fastened to the set screw and wrapped around the revolving line shaft.
    From the judgment rendered against it the defendant has duly prosecuted this appeal.

      T. I). Wynne, W. P. Feazel and W. B. Bonham, for appellant.
    1. The appellant’s request for peremptory instruction should have been given. The court’s conclusion on f ormer appeal that the issues of alleged negligence of the appellee and the assumption' of risk and contributory negligence on the part of the deceased should have, been sent to the jury under appropriate instructions, is not the law of the case on this appeal, because the facts are different. 138 Ark. 267. If either of these questions ceases, under the present record, to be jury questions, then a verdict should bave been directed by the defendant,
    On the question of assumed risk, see 56 Ark. 216; 57 Id. 76; 58 Id. 125; 65 Id. 98; 68 Id. 316; 77 Id. 367; 81 Id. 343; 85 Id. 600; 87 Id. 44; 89 Id. 50; 90 Id. 387; 92 Id. 102; 93 Id. 140; 95 Id. 560; Id. 136; 98 Id. 202; 99 Id. 377; 100 Id. 462; Id. 156; 101 Id. 537; Id. 197; 104 Id. 489; 105 Id. 434; 107 Id. 528; Id. 341; 108 Id. 483; 113 Id. 359; 115 Id. 350; 116 Id. 56; 118 Id. 304; 119 Id. 477; 112 Id. 552; Id. 272; 133 Id. 336; 140 Id. 135; 141 Id. 438; 143 Id. 390; 147 Id. 95; 232 S. W. (Ark.) 8.
    2. The court erred in submitting to the jury, in plaintiff’s instruction No. 1, a double issue of negligence i. e., negligence of the defendant and negligence of defendant’s servants, whereas, the testimony justified the submission of only one issue of negligence. 148 Ark. 500.
    3. When, as in this case, the servant is required to make his own place of work safe, the rule as to the- duty of the master to exercise ordinary care to furnish a reasonably safe place to work is not applicable, and the court erred in submitting that question to the jury. Every danger about this place of work was open and obvious, and deceased contracted with reference thereto. It is the duty of the master to exercise ordinary care to discover and repair latent defects only.
    The court’s instruction on this subject in effect as•sumes that- the defects and dangers were latent. This was erroneous. 14 Ark. 286; 93 Id. 29; 14 R. C. L. 738.
    4. The defects in the lining of the conveyor trough did not cause or contribute to the injury. It was error therefore to base an instruction on such defects, — upon a promise to repair such defects. 101 Ark. 537; 141 Id. 438. See also 77 Ark. 367; 136 Id. 602.

      D. D. Glover and Andrew I. Boland, for appellees.
    The law of the case was announced on the former appeal. There is no material difference in the facts' developed in the last trial from those developed and in the record on former appeal, and the case was sent to the jury under proper instructions.
    This court has said that the servant has a right to rely upon the superior knowledge of the master* and to proceed upon the assurance that it is safe to do so, and that the defects will be repaired. 84 Ark. 78. For correct rule, as we view it, see 1 'Shearman & Redfield on Negligence, § 215. See also 88 Ark. 34.
    Even though a servant knows of a particular risk, if he makes complaint thereof to his foreman, as was done in this case, who promised to repair the defect, and the servant, relying on that promise, continues his work, it is a question for the jury to say whether he assumed the risk, unless the danger was so obvious and imminent that a person of ordinary prudence would not have continued in the work. 86 Ark. 508; 97 Id. 347; 102 Id. 646; 105 Id. 353.
    Deceased at the time of his death was occupying the only position he could have occupied to obey the commands of his master; still, if he adopted a less safe of two ways to do-the work, the court would not be justified in declaring as a matter of law that he was negligent or assumed the risk, .in adopting the less safe way, unless it was so dangerous that a person of ordinary prudence would not have undertaken it. Ill Ark. 9. See also 123 Ark. 119; 90 Id. 226; 1 Labatt, Master & Servant, §§ 7-14; 91 Ark. 389; 87 Id. 321; 92 Id. 502; 88 Id. 549; Id. 29; 91 Id. 102; 92 Id. 554; 95 Id. 291.
    ' Where the facts are such with respect to the negligence of the parties that reasonable minds might differ, the case should go to the jury. 79 Ark. 53; 86 Id. 244; 87 Id. 321.

      The set screw could not be seen when the line shaft was running. It was a question for the jury whether deceased knew and appreciated the danger. 124 Ark. 58; 132 Id. 385; 134 Id. 136, 139; 77 Id. 458; 86 Id. 325.
    There was no duty of inspection resting on the deceased, neither is it shown by uncontradicted evidence that he had actual knowledge of the set screw. 90 Ark. 564; 141 Id. 386.
   Hart, J.

(after stating the facts). The effect of our opinion on the former appeal was to hold that the use of an uncovered set screw upon the collar on an elevated line shaft was not negligence, as a matter of law, under the conditions set out in the statement of facts, but that the question of negligence in this respect was for 'the jury. Although the use of set screws and projecting bolts upon line shafts is generally held not to be negligence as a matter of law, it does not follow that it would not be negligence to use them without being guarded or covered where, by their proximity to the floor and other places of work, workmen would be subjected to unusual danger. If the accident happened as claimed by counsel for the plaintiff — that is, if in trying to pull out a plank from the cog wheel, or from unclogging the conveyor chain while standing near the uncovered or unprotected set screw, Scott slipped or lost his balance, and. while falling his clothing caught in. the set screw and wound around the line shaft and thereby killed him, the case falls within that line of cases in which it has generally been held that, where an employee is injured by unguarded machinery with which he comes in contact by reason of some such cause as leaning over, slipping or losing his balance, he cannot be held to have assumed the risk as a matter of law. The defective condition of the conveyor trough and the consequent clogging of the conveyor chain is only important as accounting for Scott’s fall. It may be stated in this connection that, notwithstanding Scott was a mill foreman, he was doing the work of another under the command of his superior at the time he was killed, and his rights were practically the same as those of any other workman who possessed the same knowledge and skill in the premises as he did.

To constitute actionable negligence, there must be negligence and injury resulting as the proximate cause of it. Proximate cause has been defined as a cause from which a person of ordinary experience and sagacity could foresee that the result might probably ensue.

It is true that, according to the theory of the plaintiff and.the evidence introduced to support it, Scott was injured by falling from the walk-way while engaged in unclogging the conveyor chain which had become clogged on account of the accumulation of particles of wood by reason of the defect in the lining of the conveyor trough, nevertheless it. is conceded, or in any event it may be fairly assumed from the evidence, that the set screw caught his clothes and caused them to be wound around the revolving shaft, and thereby killed him. It does not follow that which caused Scott to fall was the proximate cause of his injury. The set screw would have caused the injury whether or not the defendant had been guilty of negligence with reference to the defective condition of the conveyor trough. This alleged defect was only a condition, and was not the proximate cause of the accident which resulted in Scott’s death. The set screw would have produced the same injury if Scott had fallen 'because of the slippery condition of the walk-way or as the result of his own carelessness while going along the walk-way to see if the conveyor trough had become clogged. Hence it is apparent that if the set screw had been covered Scott might not have been killed, and that if it was left uncovered he would be injured if he fell against it while the line shaft was revolving. Hence the negligence of the defendant in failing to cover the set screw, if the jury should find that it was negligent in this respect, was the direct and proximate cause of the injury, and the clogging of the conveyor chain was only a-condition, and as such was not the efficient cause of the injury.

Of course the opinion on the former appeal is the law of the case and must govern here. We have stated-, however, the effect of that opinion as we understand it from the language used, without quoting at length from it. Therefore, we are of the opinion that the instructions of the court at the instance of the plaintiff are erroneous. The instruction of the court should have only submitted to the jury the negligence of the defendant in leaving an exposed set screw under the surrounding conditions, and should not have left to the jury the question of negligence ‘of the defendant in allowing blocks or particles of wood to have accumulated on the conveyor chain and thereby clogging it by reason of the defective condition of the lining in the conveyor trough. If the alleged defect in this respect was not the direct and proximate cause of the injury, it necessarily follows that the court' erred in submitting it to the jury as a question of negligence on account of which the plaintiff might recover.

In instruction No. 1 as well as other instructions given at the request of the plaintiff, the court submitted to the jury, in general terms, the negligence of the defendant on all the grounds alleged in his complaint. The allegations of negligence with regard to the defective condition of the lining of the conveyor trough was one of the allegations of negligence set out in the complaint. Then, too, in instruction No. 15 this allegation of negligence was expressly submitted to the jury, and the jury was told that, if such negligence -contributed to the decedent’s death, it should take this into consideration in arriving at its verdict.

On the question of negligence, as we have already seen, the trial court could only submit that which was the direct and proximate cause of the accident, and it was error to submit other alleged grounds as a basis for the jury to find for the plaintiff. The instruction should have limited the jury upon the subject of negligence to that which was the direct and proximate cause of the injury, and, not having done so, the trial court committed prejudicial error, which calls for a reversal of the judgment.

It is insisted by counsel for the defendant that the undisputed evidence on the present appeal shows that Scott had helped to repair the collar in which the set screw in question was placed, and that he necessarily knew of its existence. Hence they claim that the case should not be remanded for a new trial, but that the cause of action should be dismissed^ We do not agree with counsel in this contention. As we have already seen, the question of whether the use of the uncovered set screw, under the facts and circumstances in the case, constituted negligence on the part of the defendant was one for the jury, and this would not be changed by the fact that Scott knew that the set screw was there. That fact would be for the jury to consider on the question of the assumption of risks, which should be still left to the jury.

Therefore, we are of the opinion that the judgment must be reversed, and that the cause should be remanded for a new trial. It is so ordered.


author: Smith, J.

text:
    Carl-Lee v. Griffith.
    Opinion delivered April 3, 1922.
    1. Executors and administrators — authenticating affidavit— pleading. — A. complaint against an executrix which fails to allege the making of an affidavit of the justness of the demand is not fatally defective; the statute merely requiring the production of the affidavit at the trial.
    2. Appeal and error — presumption from absence of bill of exceptions. — In a controverted suit against an executrix for cancellation of a deed given hy a deceased person, it will be conclusively presumed on appeal, in the absence of a bill of exceptions, that the court found that the required authenticating affidavit had been made.
    Appeal from Woodruff Circuit Court; J. M. Jackson, Judge;
    affirmed.

      E. M. Carl-Lee, for appellant.
    There was no verification of the complaint. This is imperative. 66 Ark. 327; 65 Ark. 1; 48 Ark. 360; Id. 304. It is a jurisdictional requirement. 105 Ark. 97; 110 Ark. 225; 14 Ark. 234; 7 Ark. 78. It is a condition precedent to the right of action, and cannot be waived. 30 Ark. 578.

      Harry M. Woods and Brvmdidge & Neelly, for appellee.
    All claims not presented within one year after the grant of letters of administration are barred. O. & M. Digest, sec. 97.
    Want of verification must be pleaded before judgment is entered. C. & M. Digest, sec. 1246; 71 Ark. 609; 88 Ark. 433.
   Smith, J.

Ed S. Carl-Lee and wife executed to G. C. Griffith a warranty deed to a certain tract of land. This deed was later assailed and canceled, the suit for that purpose having been brought after the death of Carl-Lee, but notice of the pendency of the suit was given to his widow, who was his executrix. Later' the present suit was brought by Griffith against the estate of Carl-Lee to recover the price paid for the land with the interest thereon and the cost of the litigation, and there was a trial and verdict and judgment for the amount sued for, and this appeal is from that judgment.

We have before us no bill of exceptions preserving the evidence of the proceedings at the trial from which this appeal comes; but the insistence is that error appears upon the face of the record proper, in this, that the complaint does not allege that an affidavit was made showing the justness of the demand.

In the case of Davenport v. Davenport, 110 Ark. 222, we said: “It has been frequently decided by this court that in suits against estates, either by ordinary action or before the probate court, it is necessary to produce at the trial an affidavit of the justice of the claim.and of its nonpayment, made before the commencement of the action, or the claimant will be nonsuited. Hayden v. Hayden, 105 Ark. 97; Ryan v. Lenon, 7 Ark. 78; State Bank v. Walker, 14 Ark. 234. ” We there also said: ‘ ‘ The essential thing, the jurisdictional requirement, is the making of the affidavit, and a nonsuit must be suffered when it is not made within the proper time, and the statute prescribes its form. iBut it is held that a substantial compliance in the matter of the form of the affidavit is sufficient. Hayden v. Hayden, supra; Eddy v. Lloyd, 90 Ark. 340; Wilkerson v. Eads, 97 Ark. 296.”

The statute construed in those cases is section 106 C. & M. Digest, which reads as follows: “If the affidavit required for authenticating claims against deceased persons 'be not produced in an action' against an executor or administrator for debt against the deceased, the court shall, on motion, enter a judgment of nonsuit against the plaintiff; and the affidavit must appear to have been made prior to the commencement of the action.”

The making of the affidavit is said to be the essential thing; but the statute does not make it a condition precedent to the institution of the suit. It is not provided that suits shall not be brought unless an affidavit be made and presented to the administrator or executor. ‘Upon .the contrary, the provision of the statute is that, if the affidavit is not produced in an action against an executor or administrator, the court shall, on motion, enter a judgment of nonsuit against the plaintiffs. The making of the affidavit must be proved. It is evidentiary of the validity of the demand sued on — made so by statute — but it is part of the evidence in the case. The affidavit must be produced at the trial, but, not being made a condition precedent to the right to sue, a complaint is not fatally defective which fails to allege the making of the affidavit.

In the case of Wilkerson v. Eads, 97 Ark. 296, it was said: “The affidavit is a prerequisite to the right of action, but not an exhibition to the administrator, though, if not exhibited and the suit is not controverted, the claimant cannot recover costs.”

In the case of Ross v. Hine, 48 Ark. 304, it was. said: “The appellee sued an executor without first making the affidavit authenticating his claim against the. estate as required by statute. The executor moved to dismiss the action upon this ground. No affidavit was produced except the ordinary form of verification to the complaint, but neither this nor the allegations of the complaint conformed with any degree of substantiality to the statute authenticating claims against estates. Mansf. Dig., sec. 102. The statute is peremptory in its terms, directing a nonsuit if the authentication is not made, (Ib., sec. 107), and this court has universally given effect to it. Alter v. Kinsworthy, 30 Ark. 756, and cases cited.”

These cases, as well as others both earlier and later, recognize the affidavit as the basis of the suit. It must be produced at the trial if the suit is controverted, or if the existence of the affidavit is controverted, or a non-suit will be ordered.

But, in the absence of a bill of exceptions in this case, it will be conclusively presumed that the court found the fact to be that the essential affidavit had been made.

Judgment affirmed.


text:
    Missouri Pacific Railroad Company v. Kennedy.
    Opinion delivered April 3, 1922.
    1. Carriers — right op passenger to rely on brakeman’s statement. — A passenger, temporarily alighting 'from a railroad train at an intermediate station, was entitled to rely upon information as to prospective movements of the train given him by the brakeman based on the custom of such train.
    2. Carriers. — relation op passenger — termination,.—A passenger, by leaving- a railroad train temporarily for a purpose not connected with his trip, does not lose his character as such passenger.
    3. Carriers — boarding train in motion — contributory negligence. — A passenger who has temporarily left his train at an intermediate station is not guilty of contributory negligence as matter of law in attempting to board the train while it is moving slowly.
    4. Trial — separate instructions. — In a personal injury action, it is not error to instruct the jury separately as to the elements of damage and the effect of contributory negligence, provided the instructions, when read together, properly state the law, but the better practice is to include both in a single instruction.
    5. Carriers — injury to passenger — contributory negligence.— In an action by a passenger against a railroad company for personal injuries resulting from the operation of one of its trains, contributory negligence of such passenger does not defeat recovery but merely reduces damages unless such contributory negligence is equal to or greater than the negligence of the company or its employees.
    Appeal from Ashley 'Circuit Court, Turner Butler, Judge;
    affirmed.

      E. B. Kinsworthy, B. S. Kinsworthy, for appellant.
    Appellee had no primary right to hoard the moving train and was guilty of contributory negligence in doing so. 179 S. "W. 417, L. R. A. 1916-B, 830; 116 Iowa 279, 90 N. W. 59; 86 Ark. 325. The failure to stop a train at the usual place will not justify a person in trying to board it while in motion. 118 Gra. 259, 45 S. E. 268; 67 Miss. 601, 7 Sou. 401; 108 N. C. 34, 12 S. E. 958-51 Tex. 189; 10 C. J. p. 1104-5, p. 1488; White, Pers. Inj. on Railroads, § 783, p. 1176. There was no invitation on the part of any servant of the company for appellee to board the moving train, which might in some measure tend to relieve him from negligence. 45 Ark. 256; 10 C. J. p. 1105, par. 1488; 86 Ark. 325; 99 Ark. 248; 108 Ark. 292; 122 Ark. 429.
    Appellant’s instruction No. 14 declared the law with reference to a person boarding a moving train without invitation to do so by a servant of the company, and should have been given. 84 App. Div. 414, 82 N. Y. S. 307; 36 Fed. 879; 133 111. A. 503; 77 111. A. 66; 210 Pa. 363, 2 Ann. Cas. 938, note.

      Persons who voluntarily put themselves in places of danger assume the risk. 86 Ark. 325; 99 Ark. 248; 129 Ark. 257; 128 Fed. 540; 90 111. 586; 87 N. J. L. 284; 141 N. W. 353; 31 S. D. 512. Appellant’s instruction No. 4, refused, covered this question.
    Appellant’s refused instruction No. 11 would have told the jury to find for appellant if the employees of defendant did not see appellee in a dangerous position, or know that he intended to board the moving train. This is the law. 179 S. W. 417; L. R. A. 1916-B 830; 59 111. App. 620; 139 Mass. 238;.31 K. L. Rep. 679.
    Appellant’s 'instruction No. 8 on the question of negligence should have been given. 210 Pa. St. 263.
    It was error to give instruction No. C asked by appellee on the question of custom of stopping the caboose at the station, since no custom was established by the evidence. 112 Ark. 446. Appellant’s requested instruction No. 5 as to the obligation of the company to stop at a designated place, in the absence of passengers, should have been given. 143 Ark. 135.

      Compere <& Compere, for appellee.
    Lundell was a regular station, and from information and presumption appellee thought the train would stop there. 66 Ark. 543; 135 Ark. 546.
    Instructions B and E, taken together, properly stated the measure of damages. 233 S. W. 683.
    Appellee did not lose his rights as a passenger when he got off the train. 82 Ark. 393; 88 Ark. 225; 10 C. J. 628, sec. 1051.
    It is not negligence per se to board a moving train. 86 Ark. 325; 101 Ark. 128.
   Smith, J.

Appellee became a passenger on one of appellant’s local freight trains at the town of Ferguson, with a ticket to the town of Mellwood. When the train arrived at the intervening station of Lundell, it stopped with the caboose some distance from the station platform. Lundell was a small station at which no depot was maintained, but tickets were sold there, and a passenger train each way each day stopped there regularly. Another passenger train stopped there when flagged. Appellee left the train at Lundell and went to a store of a customer, to whom he sold goods. This store was near the railroad and just off the right-of-way. Before leaving the.train, appellee asked the brakeman if the train would stop a second time with the caboose at the station platform, and the brakeman answered that it would. There was also testimony that it was the custom to stop the train with the caboose opposite the platform before the train pulled out of the station. The members of the train crew testified, however, that there was no such custom except when there were passengers to be received or discharged, and that on the occasion in question there was no passenger to or from Lundell, and the conductor testified that, before giving- the signal for the train to pull out of Lundell, he looked and saw that there was no one standing at the platform to take passage on the train. Appellee admits that he was not standing at the platform when the train was set in motion, but he reached the platform before the caboose passed that point, and the train did not stop as appellee had been told it would do. Appellee had some grips and other baggage in the caboose, and when it came by him he undertook-to swing on at the'rear steps of the caboose, but his hand slipped and he fell and broke his arm and sustained other injuries, to compensate which he brought this suit and Avas- awarded damages in the sum of $500, from which is this appeal.

Appellee was a commercial traveler, and testified that Lundell was in his territory, and that for a period of six years and a half he had beén making that point, and that he generally used this local freight train in doing so, and that it had always been the custom for the train to stop at the platform. There was testimony corroborating appellee, although, as has been said, the testimony on the question of this custom was not undisputed, and the brakeman denied having told appellee that the train would stop a second time, and there was testimony also on the part of the railroad company that the brakeman had no authority to make statements in regard to the movement of the train.

Several instructions requested by the railroad company were refused, among which was one for a directed verdict in its favor. Other instructions were given, however, at the request of both appellee and the railroad company. We do not set out or discuss all these requested instructions, as we find it unnecessary to do so to announce the law applicable to the issues joined.

The theory on which the cause was submitted clearly appears from an instruction numbered 10 requested by the railroad, and which we .do set out. As requested, this instruction reads as follows: “The court instructs you that the uncontradicted evidence in this case shows that the conductor was in charge of the . train upon which plaintiff was riding; that he alone had authority to govern the movement of said train, and that the brakeman would not and could not know, without being advised by the conductor, what would be the movement of the train. So the court tells you that the brakeman had no authority to make any statement as to whether the train would or would not stop at Lundell the second time, and that the defendant would not be bound by any statement made by the brakeman, as his statement would simply be a matter of opinion as given by any outsider, and the plaintiff had no right to rely upon any statement made by said brakeman.” The court struck out the last clause of the instruction reading as follows: “as his statement would simply be a matter of opinion as given by any outsider, and the plaintiff had no right to rely upon any statement made by said brakeman,” and, in lieu thereof, added the following: “unless the statement of the brakeman was in accord with the custom, if any, of the defendant in stopping their trains at Lundell.”

It thus appears that the court accepted the view of appellant that appellee had no right to rely on the statement made by the brakeman in regard to the movement of the train unless his statement conformed to the customs of the railroad.

We think no error was committed in modifying the instruction in the manner indicated. Indeed, after its modification, it was still more favorable than appellant was entitled to have it. It is true the brakeman was shown to have no authority to direct the movement of the train except as he received orders to that effect from the conductor. But the brakeman’s statement to appellee did not relate to any order in regard to the movement of the train which he (the brakeman) had agreed to give. He merely stated to appellee what the custom was in regard to stopping the train and what would be done that day. The brakeman would have no authority to agree what movement the train would make, but we do not have that question before us. If the brakeman knew under what orders the train would move, or what the custom in regard to its movement was, we see no reason why, when he had imparted this information to a passenger, the passenger might not rely on it. Simmons v. Lusk, 128 Ark. 336; Railroad Co. v. Adcock, 52 Ark. 406.

Under the instructions given the jury was required to find that the statement made by the brakeman in regard to the movement of the train accorded with the custom of stopping trains at Lundell, and, as we have said, the railroad company had no right to complain of the law as thus declared. K. C. S. R. Co. v. Worthington, 101 Ark. 128; L. & N. R. R. Co. v. Johnson, 79 Ala. 436; 3 Hutchinson on Carriers, p. 1392; 2 White’s Personal Injuries on Railroads, § 686; 2 Rorer on Railroads, p. 1097.

Appellant requested an instruction to the effect that, if appellee left the train for any purpose not connected with his trip, and attempted to board the train after it was set in motion without any invitation so to do from a member of the train crew, the railroad would not be liable. This and other instructions to the same effect were asked, and were properly refused as asked, but they were so modified as to permit the jury to take into account the alleged custom to stop the caboose at the platform in determining whether appellee had lost his character as a passenger.

We think no error was committed in thus modifying the instructions. It is true appellee was not a passenger for Lundell, but we do not think that the jury should, on that account, have been told that, as a matter of law, appellee had lost his character as a passenger if he got off the train there for any purpose not connected with his trip. We have held that a passenger is not compelled to continuously remain aboard a train until he reaches his destination, and that he may, at regular stopping places, leave the train for refreshments, exercise, or other matters of convenience or necessity, provided he exercise proper care in doing so. St. L., I. M. & S. R. Co. v. Glossup, 88 Ark. 225; Ark. Cent. Rd. Co. v. Bennett, 82 Ark. 393; 3 Michie on Carriers, § 2739.

The testimony shows that the train was moving very slowly as it passed the platform where appellee was standing, and the court refused to declare, as a matter of law, that appellee was guilty of contributory negligence in attempting to board the train while it was in motion, but submitted that question to the jury. No error was committed in this respect, as we have repeatedly held that it could not be declared negligence as a matter of law for one to board a train, or to alight from it, while it was passing the place where it should stop, to permit him to board it or alight from it, unless the attending circumstances show so clearly that he acted imprudently that reasonable minds could fairly arrive at no other conclusion, and that otherwise it is a question for a jury to determine whether the attempt to board or leave a train while in motion is one of negligence. K. C. S. R. Co. v. Worthington, 101 Ark. 128; St. L., I. M. & S. R. Co. v. Rush, 86 Ark. 325.

At appellant’s request the court charged the jury that, if appellant was negligent and appellee was equally negligent, to find for the railroad company. In addition, the court told the jury that the contributory negligence of a person injured by the operation of a train • wouid not defeat a recovery where the negligence of the person injured was of less degree than that of the employees of the railroad causing the injury complained of, but that in such event the amount of recovery should be diminished in proportion to the contributory negligence. This was instruction “B.” But the court gave another instruction designated as “E” and reading as follows: “If the jury find for the plaintiff, they should assess his damages at a sum that will, in their judgment, be a just and fair compensation for the mental and physical pain caused by the injury, and in addition any expense he may have incurred in attempting to effect a cure, as well as any losses sustained by reason of loss of earning capacity on account of said injuries.” Objection was made to this instruction upon the ground that it was in conflict with instruction “B” and permitted a recovery to compensate all the damage sustained by appellee, although his own negligence may have contributed to his injury. We think the instructions are not open to this objection when they are read together, as all instructions should be. Instruction “ E ” told the jury what the elements of damage were, and instruction “B” dealt with the diminution of those damages if there was a finding of contributory negligence, and, when read together, they correctly declare the law. Central Coal & Coke Co. v. Burns, 149 Ark. 533.

We take occasion, however,; to say that a better practice would be to include both directions in a single instruction, to first tell the jury what the elements of damage are, and then to state the effect of contributory negligence if the testimony establishes it.

No prejudicial error appearing, the judgment is affirmed.


text:
    Moore v. Long Prairie Levee District.
    Opinion delivered April 3, 1922.
    1. Levees — delinquent taxes — sufficiency of complaint. — Long Prairie Levee District, under Acts 1921, p. 573, could sue for delinquent levee taxes, though the collector had not filed the delinquent list with the clerk of the chancery court, and though a copy thereof was not made a part of the complaint by the district as required by § 4.
    2. Pleading — general demurrer. — Under Crawford & Moses’ Dig., § 1190, a general demurrer not specifying the ground of objection to a complaint must be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action.
    3. Constitutional law, — levee assessments — confiscation.—In ah action to recover delinquent levee taxes, an answer alleging that the combined effect of the separate assessments on the land for levee, road and drainage purposes was confiscatory was insufficient, since the assessments were levied in pursuance of statutes affording the landowner opportunity to complain of improper assessments.
    Appeal from Lafayette Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      Henry Moore, Jr., for appellant.
    The demurrer should have been sustained. The plaintiff failed to comply with act 534 of Acts 1921.
    The assessment of benefits was arbitrary, excessive and confiscatory. 83 Ark. 5i8; 81 Ark. 562; 100 Ark. 369; 98 Ark. 116; 141 Ark. 253; 147 Ark. 459; 147 Ark. 1.9.

      R. L. Searcy and R. L. Searcy, Jr.t for appellee.
    The demurrer should have been overruled. 32 Ark. 446; 53 Ark. 476; 43 Ark. 543; 126 Ark. 67.
    The Legislature is the sole judge in the matter of creating improvement districts. 98 Ark. 543.
   Smith, J.

This suit was brought to enforce the payment of certain delinquent levee taxes for the year 1920. A demurrer to the complaint filed for that purpose was overruled. Appellant, who was the defendant, declined to plead further, and a decree was entered ordering his lands sold, from which is this appeal.

It is first insisted, that the demurrer should have been sustained because of the failure of the levee district to comply with the provisions of act No. 531, Acts 1921, p. 573. This is an act entitled, “An act to. provide for the filing of a delinquent list of lands, town lots, railroads, and tramroads, in road and drainage districts, and for the collection of delinquent taxes thereon.” By the provisions of section 1 the act is made to apply to levee and fencing districts, as well as to road and drainage districts. Section 1 of the act provides that, if the taxes are not paid on or before April 10th of the year in which they are due, the collector shall, on or before the second Monday in June, make out and file with the clerk of the chancery court a list of the property returned delinquent, which he is required to verify.

Section 4 of the act provides that when those authorized by law to file suit for the collection of delinquent taxes desire to commence suit, “they shall obtain a certified copy of said list from the said clerk, which shall be filed with the complaint and taken as a part thereof.” A fee for the clerk is fixed for this service, which is to be taxed as costs. The insistence is that the complaint is demurrable because this list was not filed with the complaint and made a part thereof.

We do not agree with the counsel in this contention. Other sections of the act provide for a record of the lands so returned delinquent to be kept by the chancery clerk, and for their redemption from sale, and for a record to be made of the redemption when lands are redeemed. Any landowner may go to this record and ascertain if his lands were returned delinquent, and, if they are returned delinquent, may redeem them and have a record of this redemption then made.

Section fi of the act under which the taxes were levied provides that, if the board should fail to bring suit within sixty days after the taxes become delinquent, the right is given to the holder of any bond issued by the levee district to bring suit for the collection of such delinquent assessments.

This suit was 'begun June 7, 1921. The clerk of the chancery court is not required to record this delinquent list before the 1st day of July, which is, of course, more than sixty days after the date (April 10th) on which the taxes are required to be paid; and it is not to be presumed that the Legislature intended to impair the remedy given to enforce the collection of the bonds issued pursuant to the authority of the act creating the levee district.

The appellant does not deny that his lands are delinquent. The demurrer filed by appellant is a general one, and, as it does not specify the grounds of objection to the complaint, it must be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action. Sec. 1190, C. & M. Digest.

We do not think the filing of this delinquent list by the collector and the furnishing of a copy thereof by the clerk is made a condition precedent to the right to sue; and, as it is not denied that the allegations of the complaint are otherwise sufficient to state a cause of action, the demurrer to the complaint was properly overruled.

The real question in this case relates to the sufficiency of the allegations of the answer to constitute a defense, as a demurrer was sustained to the answer.

Prom the pleadings it is shown that appellee, Long Prairie Levee District, was created by act No. 106, passed at the session of 1905; and by act No. 339, of the Acts of 1917,' additional powers were conferred upon the district. By virtue of the latter act the scheme of taxation was changed, and a bond issue of $500,000 was authorized to refund the outstanding bonds, and for raising and strengthening the levee.

The complaint alleges that, pursuant to these acts of 1905 and 1917, the levee district had issued bonds, and had. built a levee, and the board of assessors of said district had assessed benefits against all lands within the district accruing by reason of the protection given said lands against overflow from the waters of Red River, and appellant’s lands, among other,-were thus assessed.

The answer of appellant contains no denial of these allegations, hut its recitals are, in substance, as follows: appellant’s lands are so assessed that a benefit of $1.20 per year per acre is levied against his lands up to and including the year 1922, after which the assessment for levee purposes is increased to the sum of $1.60 per acre per year. That, pursuant to -the Alexander road law, appellant’s lands, with others lying within the levee district, were organized into a road district, and by a special act of the General Assembly passed in 1919 the burdens of the road district were increased. And at the special session of the General Assembly of 1920 an act was passed organizing a drainage district which included appellant’s lands here sued on and other lands lying within the levee district. That these three districts have issued, for their respective purposes, bonds which are liens on appellant’s lands and together amount to approximately $30 per acre on all of appellant’s lands; and that the effect of this action has been to confiscate the lands by destroying their value. It was alleged that in 1913 .the lands were worth $10 per acre, and that sum could have been obtained for them, whereas now appellant is unable to sell them at any price, as the total taxes for all three districts amount to $2.70 per acre per annum.

Appellant tendered with the answer a deed to his lands, leaving blank the name of the grantee, which he offered to supply by inserting the name of any one who would pay him $8 per acre for the lands.

It was alleged that the same persons had promoted all three of these districts, and the result of their action in so doing was to destroy the value of appellant’s property, in violation of the Constitution of the State and the Fourteenth Amendment of the Constitution of the United States.

There is no allegation that the legislation creating this district is unconstitutional. That question was set-tied by this court in. the case of Salmon v. Long Prairie Levee Dist., 100 Ark. 366, and Moore v. Long Prairie Levee Dist., 98 Ark. 113.

The constitutionality of the legislation conferring additional powers, rights and duties, is not questioned; nor is it contended that there was a failure to comply with any provision of the statutes as to the time and manner of. making the assessments which this suit seeks to enforce.

We cannot review, in this proceeding, the assessments for road and drainage purposes. Our concern is only with those assessments which this suit seeks to enforce, and, as we have said, no showing is made that these assessments were not levied in conformity with a valid statute affording appellant the opportunity to complain if he thought his lands were being improperly assessed. He has heretofore had his day in court for the purpose of questioning his assessments for levee purposes, and as his answer sets up no defense to the suit to enforce the payment of these assessments, the demurrer to his answer was properly sustained.

Decree affirmed.


author: Humphreys, J.

text:
    Oberste v. Missouri Pacific Railroad Company.
    Opinion delivered April 3, 1922.
    1. Waters and water-courses — questions for jury. — In an action by a landowner against a railroad company for damages for causing a stream to overflow plaintiff’s land, whether the overflow was caused by sediment deposited in the stream on plaintiff’s land, or because defendant’s culvert afforded too small an opening for the stream, held under the evidence a question for the jury.
    2. Waters and water-courses — duty of landowner to keep ditch open — instruction.—In an action by a landowner against a railroad company for causing a stream to overflow plaintiff’s land an instruction that, if the overflow was .caused by the bed of the stream on plaintiff’s land being filled by sediment, defendant was not liable, was responsive to the evidence tending to show that the • overflow was due to sediment deposited in the bed of the stream on plaintiff’s .land, and was correct, even if such deposit was caused by surplus water diverted from its natural course .and turned into the stream by defendant.
    Appeal from Johnson Cironit Court, A. B. Priddy, Judge;
    affirmed.

      Eeartsill Ragon, for appellant.

      Pryor & Miles, for appellee.
   Humphreys, J.

Appellant instituted suit against appellee in the Johnson Circuit Court for damages to his land and improvements south and east of appellee’s depot in Hartman in the years 1917, 1918 and 1919, caused by overflow of his land alleged to have occurred on account of the failure of appellee to provide suitable culverts and openings in constructing its roadbed near Hartman, in said county, to carry off water which had been diverted from its natural course and thrown into a ditch across appellant’s land which had theretofore been adequate to carry off the natural drainage. Appellee filed an answer denying that the culverts were inadequate to carry off the natural drainage and the additional waters diverted from the Logan branch into the branch across appellant’s land. The cause was submitted to a jury upon the pleadings, evidence and instructions, which resulted in a verdict and judgment against appellant, from which is this appeal.

The record reveals that the roadbed and culverts were constructed in 1902. The road ran east and west by the depot. Two culverts were constructed across the roadbed near the depot, one just west and the other about 250 yards east of it. Prior to the construction of the roadbed the lands north and west, as well as south and. east, of the depot were drained by a branch over which the two culverts were constructed. The lands as far north as the Logan branch drained into the branch over which the culverts were constructed. The Logan branch itself flowed south through the Gray farm, and did not connect with the first branch. Lands further north were drained by the Logan branch. Both branches were dry-weather branches, forming the route of drainage when it rained, and were ample, prior to the construction of the roadbed, to carry off the water during hard rains. In constructing the roadbed appellee formed a dam across Logan branch, no culvert being placed at that point, and turned or diverted the water during rains down the north side of the track until it entered the first branch. The first branch, or the one over which the two culverts were constructed, ran across the roadbed toward the south and through appellant’s land to a point about 250 yards east of the depot, where it turned and crossed the roadbed again, over which the culvert on the east side was also constructed. The culvert on the east side of the depot was smaller than the one on the west side.

The testimony adduced on the part of the appellant tended to show that the culverts, especially the one on the east side of the depot, were too small to carry the water diverted from Logan branch, in addition to the natural flow, during hard rains or freshets; that the ditch across appellant’s land had 'been partially filled by sediment deposited by the excess flow of water, and this, in connection with the insufficiency of the culvert east of the depot to carry the excess volume of water, caused the water to back over the banks and flood appellant’s land in the years mentioned, to his damage in the several sums alleged.

The testimony introduced on behalf of appellee tended to show that, if the ditch or branch across appellant’s land was not obstructed by sediment, or otherwise, the culverts were large enough to carry off the natural drainage, as well as the water diverted from the Logan branch into the first branch.

Appellant’s first contention for reversal is that the only reliable evidence in the case disclosed that the east culvert was insufficient in size to carry off the natural drainage and the additional water diverted from Logan branch into the branch across his land during hard rains. It is argued that the witnesses introduced by him were eye-witnesses to the fact that the east culvert did not furnish sufficient outlet during hard rains in the years 1917, 1918 and 1919, and that on this account his land was overflowed and damaged as alleged. It is true that the witnesses introduced by appellant actually observed the conditions in those years and testified that appellant’s land overflowed because the waters entering the branch or ditch were not carried off through the east culvert as rapidly as they entered it. It is also true the testimony shows that the land never overflowed at any time before appellee constructed its roadbed and culverts. It does not follow, however, as a matter of course, that the overflow was due to the insufficient size of the culvert east of the depot. There was evidence tending to show that sediment and dirt had been washed down from the lands west and north of the depot and deposited in the branch running across appellant’s land, thereby partially filling the ditch and obstructing the free flow of the water. The obstruction caused by this sediment may have caused the overflow. The inference from the testimony is that no overflow occurred between 1902 and 1917, or until the ditch had been partially filled up on account of the sediment. Appellee had no right- to. enter upon the land of appellant and clean out the branch or ditch running through it. Appellant could not sit idly by and permit this sediment to accumulate, even though it was deposited from surplus water thrown through this branch or ditch by appellee, and then recover damages from appellee on account of an overflow occasioned by this deposit. If the sediment was deposited on account of the unnatural flow of water, diverted from its natural course into the branch in question by appellee, it was appellant’s duty to remove same, being upon his own land, and thereby prevent the water from flooding his land, if possible. In addition to the proof tending to show that the sediment caused the overflow of appellant’s land, appellee introduced an engineer who testified that he figured the rainfall, the area to be drained, and the size of the culverts, and from these measurements was of the opinion that the culverts were ample in size to carry off all the water when the branch above appellant’s land was in its normal condition. We think the testimony presented a disputed fact determinable solely by the jury.

Appellant also insists that the court erred in giving instructions 4 and 5, which are as follows:

“4. Now there has been some contention that the openings there' were not the proximate result of the damages that was done to plaintiff, but that it was a ditch that filled up; so I will give you that theory of it.

“5. You are instructed that, if you believe from the evidence in the case that the ditch which heretofore carried off the water south of Mr. Oberste’s gin became filled up by natural wash from nearby land into said ditch, then no duty rested upon the railway company to open said ditch, and it became Mr. Oberste’s duty to open said ditch, and for the filling of said ditch the railway company is not liable, and your verdict will he for the defendant. ”

It is argued that there is no evidence in the record to sustain these instructions.. We think the instructions objected to were responsive to the evidence tending to show that the overflow was occasioned by sediment deposited in and partially filling the 'branch running across appellant’s land. Even if this were occasioned by surplus water diverted from its natural course and turned into the branch by appellee, it was appellant’s duty to keep the branch cleaned on his own land, as appellee had no right to enter upon appellant’s premises and clean the branch.

No error appearing, the judgment is affirmed.


text:
    Caddo River Lumber Company v. White.
    Opinion delivered April 3, 1922.
    1. Master and servant — assumed risk. — One engaged in unloading a sleek and crooked pole from a flat car assumed the risk incident to handling it, its condition necessarily being patent to any one.

      2. Master and servant — contributory negligence — jury question. — Whether injuries to an employee’s hand while unloading a pole from a' flat car were caused by the negligent handling of the pole by fellow employees, held for the jury under the evidence.
    3. Damages — opinion op physician as to permanency op injury.— In an action for injuries to plaintiff’s hand, the court properly permitted a physician to testify that the hand was permanently injured, though there was evidence tending to prove that the condition of his hand resulted from former injuries.
    4. Appeal and error — harmless error — exclusion op evidence. —In an action for injuries to an employee’s hand while unloading a pole from a flat car, the court’s refusal to allow a fellow servant who was standing between plaintiff and the car to testify that plaintiff could not have got his hand in position to be crushed between the pole and the car was not prejudicial error where he was permitted to testify as to his and plaintiff’s positions in such way that the jury could draw a correct conclusion.
    Appeal from Pike Circuit Court, James 8. 8teel, Judge;
    reversed.

      Tomphins, McRae & Tomphins, for appellant.
    The allegations of complaint stated a clear case of assumed risk. 97 Ark. 486.
    The court erred in refusing to allow appellant’s witness Lawrence to testify that the injury could not have happened in the manner alleged. Even if this be considered opinion evidence, under the circumstances it was admissible. 2 Jones on Ev. § 360; G-reenleaf on Ev. (16 Ed.) § 430-G; 94 Ark. 538; 43 Ohio St. 270; 74 Conn. 554; 39 N. Y. Sup. 944; 36 N. Y. 132; 115 Iowa 80; 101 Cal. 585.

      Rountree & Coblentz and W. T. Kidd, for appellee.
    Before it can be said appellee assumed the risk it must be shown that he knew and appreciated the danger. 77 Ark. 458; 97 Ark. 364. He had a right to assume that the master had furnished safe tools or appliances. 67 Ark. 209; 90 Ark. 223; 89 Ark. 427; 90 Ark. 555;' 92 Ark. 102; 95 Ark. 291.
    The evidence of Lawrence was properly excluded, as he was called upon to state conclusions, which would be an invasion of the province of the jury. 11 B. C. L. 565; 167 Ind. 402; 24 Ark. 251; 29 Ark. 448; 66 Ark. 416; 66 Ark. 494; 70 Ark. 423; 95 Ark. 157.
   Humphreys, J.

Appellee instituted suit against appellant, a lumber corporation, in the Pike Circuit Court to recover damages in the sum of $8,000 on account of an alleged injury sustained to his hand while assisting other employees in unloading a long pole which was on one of its flat cars where it had served as a support for a house which appellant was moving. Two grounds of negligence were alleged in the amended complaint as a basis for recovery, the first being that appellant, its agents and servant, negligently furnished appellee with a crooked skid pole,' which was slick and unsafe; and the second being that the pole was moved or shoved without notice or warning to appellee when he was assisting in moving the same, which caused it to fall upon and break two bones in his hand and otherwise injure it. Appellant filed an answer, denying the allegations of negligence and injury, and, by way of further defense, pleading assumed risk and contributory negligence on the part of appellee. The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment in favor of appellee in the sum of $2,500, from which an appeal has been duly prosecuted to this court.

The evidence, in substance, reflected that appellant was engaged in moving a house from one point to another on a flat car; that the house being wider than the car, was supported by two skid poles about 16 feet long and 8 or 10 inches in diameter at the butt end, lying across the car; that the skid poles were pine; that after the house was unloaded appellant’s foreman directed appellee and others to unload the poles; that the skid pole which appellee testified fell upon and injured his hand was crooked, partially disbarked and slick, due to a rain which fell during the afternoon; that appellee’s hand had been twice injured before, once in 1914 when a cross-tie fell upon it, breaking one bone and leaving a knot on the báek part of the hand, and again in 1920, when a large rock fell upon it, causing him to cease work for a time. Appellant testified that in removing the pole he was standing against the car on the left side, and that the man on top gave the pole a sudden j erk, which turned it over and mashed his hand between the pole and the ódge of the car; that two of his fingers were broken, which stiffened and rendered them useless; that the injury caused him great pain and suffering; that the injuries received to his hand theretofore did not seriously injure his hand; that the injury received to his hand by the falling pole rendered it useless for purposes of labor.

In the progress of the trial T. F. Alford, a practicing physician, over the objection of appellant, testified that the injury was permanent on account of lack of elasticity in the muscles and tension in the ligaments that supply the broken fingers. Appellant objected to the evidence of the physician concerning the permanency of the injury to the hand, because it might have been produced by the injuries received in 1914 and 1920.

The evidence adduced by appellant tended to show that appellee’s hand was not crushed by the pole, but that the condition of his hand was due to the injuries received in 1914 and. 1920. Some of appellee’s co-employees testified that appellee assisted in removing the pole without making any complaint of injury or exclamation during the time it was being removed; that he continued to work that day and part of the next day without making complaint. Nat Lawrence testified that he assisted in moving the crooked pole, and was standing against the car; that appellee was on his right side, away from the ear. At this point appellant offered to prove that, owing to the position of Nat Lawrence, appellee could not have reached the arm of witness and gotten hold of the pole so that it could fall on or mash his hand. This evidence was- excluded, over the objection and exception of appellant.

The court sent the cause to the jury on the theory that appellee might recover if the evidence supported either or both allegations of negligence set forth in the complaint. In other words, the court authorized a recovery by appellee if the evidence showed that the pole was crooked and slick. This was error. The slick and crooked condition of the pole was necessarily patent to any one, and appellee therefore assumed the risk incident to handling a slick, crooked pole. This court said, in' the case of Chicago R. I. & P. R. Co. v. Grubbs, 97 Ark. 486: ‘£ The plaintiff knew that the effect of creosote upon cross-ties was to make them slick and therefore liable to slip. * * * * Their condition was patent to him. ***** It was obvious, therefore, that these ties were liable to slip whenever any force or weight was applied to them. The risk or injury which might result by reason of the ties slipping or moving was obvious, and when plaintiff undertook the service of straightening them out he assumed the risk. * # * * A master is not bound to warn the servant as to dangers which are obvious and patent to him.”

There is a dispute in the evidence as to whether appellee was injured through the negligent and careless handling of the pole by appellee’s co-employees. The cause, therefore, should have been submitted to the jury, upon the sole question of whether the injury resulted' to appellee on account of the negligent and careless handling of the pole by appellee’s co-employees, without notice that the co-employees were about to move or shove the pole.

Appellant next insists that the court erred in permitting Dr. Alford to testify that the injury to plaintiff’s hand was permanent. The appellant’s insistence is that the effect of this testimony was to allow appellee to recover for the condition of the hand resulting from the fall of the cross-tie in 1914 and the rock in 1920 upon his hand, as well as the injury inflicted by the pole falling upon it in 1921. We do not think so. There was evidence tending to show that the first two injuries received were slight and left the hand unimpaired. There was evidence, however, to the contrary. It therefore became a disputed question of fact for the jury to determine which injury stiffened and deformed appellee’s hand. The court specifically instructed the jury that the burden was upon the appellee to show the nature and extent of the injury he received on June 23, 1921, and that he could not recover for conditions produced by prior injuries. It was not necessary for Dr. Alford himself to know or testify which injury stiffened and deformed appellee’s hand before testifying concerning its condition at the time of the trial. It was perfectly proper to show the stiffened and deformed condition of appellee’s hand at the time of the trial by a physician, and to show by other witnesses the cause that produced the condition thereof. The physician himself may not have known the immediate cause of the injury to the hand, but, on account of his expert knowledge, was peculiarly qualified to explain the nature and extent of the injury.

Appellant’s last insistence for reversal is that the court erred in refusing to allow Nat Lawrence to testify that appellee did not reach, and could not have reached, under his (Lawrence’s) arm and gotten his hand in position to be crushed between the pole and the edge of the car. We do not think any prejudice resulted to appellant on account of the exclusion of this evidence, as Lawrence was permitted to testify concerning the position of appellee and himself with reference to the car and the pole in such way that the jury itself could draw a correct conclusion as to whether appellee was near enough to reach the pole and receive the injury in the manner alleged. It would not perhaps have been error to admit the evidence upon the theory that it was a conclusion of fact drawn from appearances which could not otherwise be clearly produced to the jury. Fort v. State, 52 Ark. 180.

For the error indicated, the judgment is reversed and the cause remanded for a new trial.