author: Mehaffy, J.

text:
    E. L. Bruce Company v. Leake.
    Opinion delivered March 19, 1928.
    1. Master and servant — assumed risk. — A servant does not assume any risk or hazard caused by the negligence of the master, unless he knows that the risk exists, or unless the risk is an ordinary or usual one, of which the servant could have known by the exercise of ordinary care.
    2. Master and servant — safe place to work. — A railroad company owed its brakeman the duty to use reasonable care to make inspection and ascertain that obstructions on or near the track were not so close as to be dangerous to the brakeman in the performance Of his duties, and he had a right to assume that the railroad would perform its duties in this respect.
    3. Master and servant- — assumed risk. — A servant has a right to assume, not only that the master will perform his duty, but also that each of the other servants will perform their duty, and if, while in the exercise .of ordinary care, he is injured either ib-y the negligence of the master or by the negligence of a fellow -servant, he has a right to recover.
    4. Master and servant — contract exemption from negligence.— The master cannot make a valid contract exempting himself from his own negligence, and his servant does not assume the risk of the master’s negligence, since the doctrine of assumed risks is based on contract.
    5. Master and servant — assumed risk — jury question. — In an action by a brakeman again-st the railroad company for injuries caused by the proximity of the track to a stump which caught the brakeman’s foot as he stood on a stirrup after having coupled cars, the question whether he knew of the risks on account of obstructions near the track and therefore assumed the risk, held a question for the jury.
    6. Master and servant — contributory negligence. — While a servant should exercise reasonable care in the performance of his work, the fact that he is engaged in the performance of such work and must give his attention to that should be taken into • consideration in determining whether he was guilty of contributory negligence.
    7. Negligence — contributory negligence as defense. — In an action by a brakeman against the railroad for injuries caused by the master’s negligence, contributory negligence did not bar plaintiff’s recovery, though it could be shown in reduction of his damages.
    8. Trial — jury questions. — Questions of fact about which fair-minded men might differ are properly submitted to the jury.
    Appeal from Nevada Circuit Court; J. H. McCollum, Judge;
    affirmed.

      McRae & Tompkins, for appellant.

      William F. Denman, for appellee.
   Mehaffy, J.

The appellee brought suit in the Nevada Circuit Court against the appellant, alleging that he was employed by appellant as brakeman upon its log-train, which operated from the log camp in the woods to the town of Kilgore, a distance of about twelve miles. That on the 12th day of January, 1927, the train was returning from the log camp with a load of logs, when, on account of the rough and uneven condition of the track, the train, in rounding a curve, became uncoupled or broke in-two. That it was appellee’s duty as brakeman to make the coupling, and he got down from the car, adjusted the drawheads of the couplers, and, after the train started, he stepped upon the step or stirrup on the car he had coupled. That the train was moving, and, as he stood on said step or stirrup, a large stump, standing within a very few inches of the track, caught appellee’s foot between the stump and the step on which he was standing, breaking the bones in his foot and causing severe and permanent injuries. That the injury resulted from the negligence of the company in allowing and permitting said stump to stand within a few inches of the track, when it knew or should have known the same was dangerous to its employees. The suit was for $3,000.

Appellant filed answer, denying all the material allegations, and pleaded contributory negligence and an assumption of risk.

'The appellee is 35 years old; was in the employ of the company as brakeman on a log-train and working under the orders of C. L. York, the engineer, who was his foreman. He was the only brakeman on the train, and his duties were to couple and uncouple cars, set out cars, and make up the train. At the time he was hurt they had made up the train, and were coming into Kilgore. They had several cars of logs and flatcars, and the train became uncoupled. Appellee got off to make the coupling, and it was on a curve, and he had to get out some distance, so the engineer could see him when he flagged him. He made the coupling, gave the signal, and, when the train started up, he got on. He caught the train with both hands and pulled himself up on the car, and had gone but a few yards when he hit the stump. His foot was in the stirrup, and when the stump was hit it broke his foot. He did not see the stump until it was hit. There was no switch-track there. He was confined to his room 91 days, and then had to walk on crutches for 'a time. He had been braking for. the company about four years; was earning 35 cents an hour when he was hit, and is able now to earn but little. He had had experience as brakeman on other log roads.

The train would be taken out to the woods where . the logs were by pushing the empty oars ahead of the engine, and, when the logs were loaded, the engine then pulled the cars into Kilgore. The track is not level, but there are hills and hollows and soft places, and these cause the couplers to miss or pass over each other.

Appellee g-ot on the train after making the coupling as quickly as he could. He had made a statement about how the injury occurred, and admitted signing the statement which was made to the company. In that he stated that the stirrup cleared the stump about two inches. Appellee went over the road twice every day, and sometimes three times. They made-all their trips in the daytime, unless they had trouble.

The physician testified that his foot was broken, and that the injury was permanent. Another physician testiffed that it was impossible to tell whether the foot was broken without an X-ray, and that he did not think the injury was permanent.

The road was just a log-road cut through the bottom, laid on top of the ground on poles and ties. It is not graded. The bottom there overflows, and the track crosses sloughs. There are obstructions along the side of the track too close to clear a brakeman on the side of a car. There are stumps and logs, and sometimes there !are tree-tops. The day appellee was hit the train was. on a curve,- and there was a stump there that would not clear the brakeman. They had in the train that day six or eight cars. They often have trouble with the train becoming uncoupled or breaking in two. The right-of-way is narrow. The road is not fully spiked. The train would break in two all along the road, and it was appellee’s business to couple it.

The company has a section foreman, and it is his duty to keep up the track. The stumps are out in the open, where everybody can see them. There is nothing to hide them. There had been a great deal of trouble with car stirrups being bent back or knocked off by stumps. The road was built to get logs into the mill. There is nothing about the brakeman’s duty that requires him to ride on the side of the car while the train is in motion. After he makes a coupling he has to get on the train, but he does not -have to ride on the side of the car. He would have to catch the side of the car or rear end. If a coupling is made on a curve, the brakeman would have to move back from the track until he got where he could be seen. When the signal was given the train would start, and the brakeman would have to catch the train while it was in motion. The engineer started the train as quickly as he could after getting the signal. There are.sink-holes in the track, stumps, treetops and logs scattered all along the line. They just maintain the track so that they can get the log-cars over it. The track is moved as the timber is cut out. The company has a good deal of trouble caused by obstructions along tbe track knocking stirrups off tbe cars. The right-of-way is very narrow, just wide enough for the train to get over. The road.is not made for people to travel over. It is safe for a brakeman if he is on the cars. When the train breaks in two, the brakeman has to get on the ground to make the coupling. A man making a coupling would not have the opportunity to see all the obstructions. Practically all work connected with a logging railroad is dangerous.

The appellant’s first contention is that the plaintiff assumed the risk, and that the court below should have given a peremptory instruction.

The appellee was the brakeman, and it was his duty to couple the cars and give the engineer the signal to move ahead. At the place where the injury occurred there was a curve that made it necessary for him to get some distance from the track to give the signal, and, when the signal was given, the engineer started the train. After the brakeman had given the signal, he then had to get on the train again after it was in motion. While in the performance of his duty coupling the cars, giving the signal and getting on the train of cars, it was not possible for him to notice obstructions near the track that one could notice who was not engaged in the performance of any duties. Duties must be performed, and there is no contention that he was not performing them in the proper manner.

He testifies that he caught the train with both hands, got his foot in the stirrup, and got on the train as quickly as he could. One riding on a train in the manner that the witnesses testified that the employees had to ride, in the middle of the car, would probably not be able to tell whether the stumps and other obstructions near the track were close enough to injure them or not. He knew there were stumps on the right-of-way, and knew that there were other obstructions. He knew that some of them were near the track, but there is no evidence that he knew that they were near enough to injure him. And, unless it could be said that, riding back and forth on. the track, as appellee had for a long while, he could tell that the obstructions were close enough to be dangerous, then 'it cannot be said he knew the hazard, although he knew the obstructions were near the track.

Appellant, in support of his contention that' the court below should have given a peremptory instruction because appellee had assumed the risk, cites Asher v. Byrnes, 101 Ark. 197, 141 S. W. 1176, and quotes as follows:

“When a servant enters into the employment of' any one, he assumes the ordinary risks and hazards which are incident to the service, and this includes all,those defects and dangers which are obvious and patent. He assumes all the risks which he knows to exist and all those which are open and obvious.”

The above is a correct statement of the law, but it will be observed that it refers to the ordinary risks and hazards incident to the service. And it is true that he assumes the obvious risks, but, because an obstruction is near the track and the object itself or obstruction is obvious, does not necessarily mean that the risk or hazard is obvious. The servant does not assume any risk or hazard "caused by the negligence of the master, unless he knows that the risk or hazard exists. If it were an ordinary or usual risk or hazard, then he would assume the risk, even if he did not know it, if he could, by the exercise of ordinary care, have known it. , But, in order to assume the risk caused by the negligence of the master, he must know that the risk exists. He has a right to assume that the mastér will not be guilty of negligence, and he has the right to rely on that assumption, unless he knows that the contrary is true.

In the instant case it was the duty of the appellant to make inspection and to ascertain whether or not obstructions were, so near the track as to be dangerous, but the employee was not under any duty or obligation to make inspection. He had a right to assume that the master had performed his duty, and did not have to make any investigation or inspection to find out whether or not the master had been guilty of negligence.

This court has many times held that, while an employee assumes all the risks and hazards usually incident to the employment he undertakes, he does not assume the risk of the negligence of the company for whom he was working, or any of its servants. He has a right to assume, not only that the master will perform its duty, hut he has a right to assume that each of the other servants will perform their duty, and if, while in the exercise of ordinary care, he is injured either by the negligence of the master for whom he works or by the negligence of any other servant of the master, he has a right to recover.

The above is substantially the declaration of law by this court in Aluminum Co. of America v. Ramsey, Ark. 522, 117 S. W. 568, and it has been approved many times since that decision.

It was the duty of the appellant in this case to use reasonable care to see that the obstructions on the track were not so close as to injure a servant in the performance of his duty. It was its duty to make inspection and use reasonable care to keep the road in this condition.

“That it was the duty of the railroad company to use reasonable care to see that the cars employed on its road were in good order and fit for the purposes for which they were intended, and that its employees had a right to rely upon this being the case, is too well settled to require 'anything but mere statement. * * * Sound reason and public policy concur in sustaining the principle that a railroad company is under a legal duty not to expose its employees to dangers arising from such defects in foreign cars as may be discovered by reasonable inspection 'before such cars are admitted into its train. This general duty of reasonable care as to the safety of its appliances resting on the railroad, the instructions in question proposed "to limit by confining its performance solely to such foreign cars as are received by a railroad ‘for the purpose of being hauled over its own road.’ * * * The argument wants foundation in reason, and is unsupported by any authority. In reason, because, as the duty of the company to use reasonable diligence to furnish safe appliances is ever present and applies to its entire business, it is beyond reason to attempt, by a purely arbitrary distinction, to take a particular part of the business of the company out of the operation of the general rule, and thereby to exempt it, as to the business so separated, from 'any obligation to observe reasonable precautions to furnish appliances which are in good condition.” Texas & P. R. Co. v. Archibald, 170 U. S. 665, 18 S. Ct. 777, 42 L. ed. 1188.

It is the duty of the company to use this reasonable care with reference to every part of its business and with reference to seeing that obstructions on the track are not so close to the track that , they will injure an employee in the performance of his duty. It will be remembered that the doctrine of assumed risk is based on contract, and the master cannot make a valid contract exempting itself from its own negligence. And this would be the result if an employee was held to assume the risk resulting from the negligence of the master, because assumed risk is based on contract. If the servant assumed the risk of the negligence of the master, this would be permitting the master to contract for exemption from its own negligence.

In a case of injury of a. servant by a railroad com: pany, the following instruction was given at the request of the plaintiff and excepted to by the defendant: “If the exigencies of the situation were such as to make it necessary for them to place the track so near the post as -to be a source of danger, or to allow the post to remain so near the track as to be a source of danger, then it was their duty to notify their employees of that source of danger.” The appellate court said: “This instruction was proper.” Savage v. Roch Island Co., 28 R. I. 391, 67 Atl. 633.

In that case a conductor riding on the running-board of an electric car was struck by á pole near the track. The count said:

“The danger from this pole, if any, was either an obvious risk, and so assumed by the deceased; or else it was non-obvious or extraordinary, and, if so, it was a matter as to which the deceased was entitled to special warning and instruction from the defendant. And, of course, it is well settled that in the latter case the burden of proof is upon the. defendant to show that proper warning and instruction was given. * # * The railroad company and any other employer of labor and any other person cannot be allowed to contract himself out of his own negligence.” Wilson v. New York, N. H. & H. R. Co., 29 R. I. 146, 69 Atl. 364.

It will of course not be contended that the company could contract itself out of its own negligence. That is, it could not contract so as to relieve it from liability for its negligence.

“An examination of the language and reasoning of the courts shows that the question whether a risk is or is not an ordinary one may be determined with reference to either one of two conceptions which are logically distinct. According to one of these, the differentiating test is furnished by the principle already adverted to in § 895, ante, viz., that every risk which is not caused by a negligent act or omission of the master’s part is assumed by the servant.” Labatt’s Master & Servant, 2d ed. vol. 3, 3110.

Whether the appellee in this case knew of the risks and hazards was a question for the Jury. Instruction No. 2, given at the request of the appellee, was a correct .statement of" the law. A servant does not assume the risk of the negligence of the company unless he knows of such negligence. And, for the same reason, instruction 10 was properly refused.

Appellant also complains at the refusal of the court to give its instruction No. 6. Number 6 was a peremp- . tory instruction. When a servant is in the performance of his duty, as the brakeman was in this case, he does -not .have the opportunity to look out for obstructions of-the kind mentioned here that he wbhld have if he was not so engaged. It is Ms duty to perform Ms work. Of course Ire should exercise reasonable care in the performance of it, but the fact that be is engaged in the performance of a duty and must give Ms attention to that should be taken into consideration in determining whether he was guilty of contributory negligence. Contributory negligence is not a bar, but may be shown in order to reduce the damages. ■ And the jury was properly instructed by the court with reference, to contributory negligence.

We think as to whether the servant would know that the obstructions were close enough to injure him was a question about which fair-minded men might differ, and therefore was properly submitted to the jury, and their verdict is conclusive on this court.

Finding no error, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Collum v. Hervey.
    Opinion delivered March 19, 1928.
    1. Judgment — oonclusiveness against wife of decree against husband. — A decree against a husband in a suit brought against him and others to quiet title to land owned by his wife, held binding on the wife, though she was not made a party, where the husband and wife had occupied the land together, and when the writ of possession had issued as the result of such decree, the husband and wife had vacated the premises, since the wife was represented in the suit by her husband and was in privity with him, and her subsequent suit for possession was barred thereby.
    2. Judgment — oonclusiveness.—Where title to land had been quieted against the husband in a suit to which his wife had not been made a party, held that, even if the decree against the husband was not binding on the wife, the fact that, on the issuance of the writ of possession, she claimed no interest separate from her husband, and vacated the premises without claiming that she was not bound by the decree, constituted a ratification of the husband’s subsequent acts so as to bind her by the decree.
    3. Judgment — conclusiveness of decree against privy. — In ejectment for recovery of land, plaintiff was bound by a previous judgment against her grantor, under which the judgm&lit title had 'been quieted as against such grantor, since plaintiff wb.s a privy with her grantor. /
    Appeal from Miller Circuit Court; J. PL. McCollum, Judge;
    reversed.

      J. D. Cook, Sr., and J. D. Cook, Jr., for appellant.

      Pratt P. Bacon, for appellee.
   Mehaffy, J.

The appellee, plaintiff below, began this suit in the Miller Circuit Court, alleging that she was the owner of 15 acres of land in section 33, township 14 south, range 28 west, in Miller County, Arkansas, which land was described in her complaint, and claimed title to said land as follows: That, prior to the year 1909, plaintiff’s sister, Mary Day, was in possession of the 40-acre tract, which included the 15 acres sued for, and had been in possession for many years, working said land and improving same and claiming to be the owner of the whole 40-acre tract. That said Mary Day put plaintiff in possession of the 15-acre tract involved in this suit, and that, immediately upon said gift, the plaintiff entered into possession of said 15 acres, which was then in the woods, and plaintiff cleared same, fenced it, built houses thereon, and put said 15 acres in cultivation, and openly and notoriously held the adverse possession thereof 'all the time, claiming to be the owner for more than seven years,' until she was some time ago dispossessed by some kind of a writ issued against her husband. She alleged that the defendants, appellants here, were in the unlawful and wrongful possession of said lands, 'claiming to be the owners, and that plaintiff was entitled to the possession.

Defendants filed a demurrer, which was by the court overruled. They also filed a motion to make more definite and certain, which was also overruled, and exceptions saved. The defendants then filed answer, alleging that R. B. Collum was the owner of the tract of land claimed by plaintiff; that he purchased from John P. Hervey, and that Hervey inherited the lands from his father, Charles Hervey, and tendered deeds showing title to said lands.

The defendants further answered, alleging that neither Mary Day nor Isom Hervey ever had title to said lands, and denied the material allegations of plaintiff’s complaint. Defendants admitted that at one time Mary Day lived on the land,' and had given plaintiff and her husband the privilege of living on the land. Defendants alleged that defendants’ grantor, being a minor, brought suit by Sally E. Hyden, his guardian, in the Miller Chancery Court, to quiet the title to said land in John B. Hervey. The suit was against Mary Day and Isom Hervey, plaintiff’s husband. It is alleged that the suit included the plaintiff. That in said suit all the rights and equities ever existing in behalf of the plaintiff were pleaded, and the same inquired into and disposed of in said cause, and that the title of John P. Hervey, defendants’ grantor, was quieted in him, and a writ of assistance was issued in support of said decree and the rig’ht of the defendant’s grantor under same, ejecting all of said defendants, including plaintiff, from said 40 acres, which included the 15 acres claimed by plaintiff.

The plea of res judicata was submitted to the court, in the absence of the jury, and the defendants introduced and read in evidence chancery record in the case of John P. Hervey, an infant, by Sally E. Hyden, his guardian, against Mary Day and Isom Hervey. The suit resulting in the decree which was introduced involved the lands -in controversy in this suit, and said decree showed that the lands had been adjudged and decreed to the plaintiff, John P. Hervey; that he was the owner of the legal title, and it was decreed that he have and recover of and from the defendants, Mary Day and Isom P. Hervey, and their tenants, the possession of said lands; and that, upon failure of defendants and their-tenants to deliver possession, plaintiff should have a writ of possession. Said decree also adjudged' and decreed that the title of plaintiff, John P. Hervey, be and it is hereby established, quieted and confirmed against all persons claiming by, through or under any of the conveyances as set out in this decree.

The plaintiff objected to the introduction of the decree because Senie Hervey, the plaintiff, is not a party to the suit. Said objection was overruled, and plaintiff excepted. Defendants then introduced and read in evidence the pleadings in said chancery cause, and it was admitted that Senie Hervey was the wife of Isom Hervey, but objection was made because Senie Hervey was not a party to the suit.

The will of Mary Mays was introduced, Mary Mays being the same person as Mary Day, above mentioned. Objection was made to the introduction of the will, and said objection overruled, and exceptions saved. The defendants then introduced and read in evidence the writ of possession issued by the Miller County Chancery Court, commanding the sheriff that he take from the. possession of the defendants, Mary Day and Isom Hervey, the land and premises described in the chancery decree, and deliver the same to John P. Plervey.

After the introduction of the above evidence the court overruled defendant’s plea of res jtidicata, and thereupon the parties introduced the evidence on the main issue, and the case was submitted to the jury, and a verdict returned in favor of the plaintiff.

The testimony showed that the plaintiff claimed title through Mary Day, her sister; that she was living with her husband at the time suit was brought against Mary Day and her husband; that a decree was rendered against this plaintiff’s husband and Mary Day, and Hervey, the grantor of appellants, was decreed to be the owner and entitled to possession of the land involved in this suit. Plaintiff offered to introduce in the trial of the case before the jury the decree of the chancery court. Objection was made and sustained, and appellants were not permitted to introduce and read in evidence the decree of the chancery court.

As the judgment or the decree of the chancery court, introduced on the question of res judicata, is binding on the wife, the suit being against the husband, the plea should have been sustained by the court. It appears that the husband and wife were living together on this 15 acres as husband and wife; that the suit was against the husband alone, a decree rendered, a writ of possession issued, and, as a result of the decree and writ of possession, both the husband and wife and Mary Day vacated the premised, and possession was delivered to the grantor of appellants.

A majority of the judges are of opinion that this was not the separate property of the wife, but that, the husband and wife living together, the husband’s occupancy was her occupancy, or rather that she was occupying it as a wife and because her husband was occupying it; that the domicile of the husband is the domicile of the wife, and that the decree in the chancery court, although the wife was not a party, under the circumstances in this case, was binding on her.

The writer does not agree with this view, but a majority of the judges do, and it is therefore the opinion of the court that the decree of the chancery court, although the wife was not actually made a party, is binding on her as well as the husband.

“A judgment in favor of or against the husband in an action involving a debt due the community will, it has been held, bind the wife, regardless of her nonjoinder.” 21 Cyc. 1694.

• “The judgment in an action by a husband to determine the boundary line of land which was community property is conclusive on both husband and wife, although the wife was not a party to the action, in the absence of proof that it was brought without her consent.” Leggett v. Ross, 14 Wash. 41, 44 Pac. 111.

“A judgment in an action against a husband only to determine adverse claims to land is a bar to subsequent action by such husband and his wife against plaintiff in the former action involving the same questions, although the land is community property.” Lichty v. Lewis, (C. C. A.), 63 Fed. 535.

“But to give full effect to the principle by which parties are held bound by a judgment, all persons who are represented by the parties and claim under them or in privity with them are equally included by the same proceedings. * . * * The ground therefore upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party, is that they are identified with him in interest; and whenever this identity is found to exist, all are alike concluded. Hence all privies, either in estate, in blood, or in law, are estopped from litigating that which is conclusive on him with, whom they are in privity.” Litchfield v. Goodnose, 123 U. S. 549, 8 S. Ct. 210, 31 L. ed. 199.

It is the opinion of the majority of the judges that Senie Hervey, being the wife of Isom Hervey, living with him at the time that she was represented by the husband in the suit, was in privity with him, and equally concluded by the proceedings.

“A judgment in favor of or against the husband in an action involving a debt due the community will bind the wife, regardless of her nonjoinder. But some courts hold that, where the wife was not a party defendant in an action wherein judgment was rendered against the husband, she is entitled to a determination, in an appropriate action or proceeding, of the question whether the judgment was based on a community debt or liability. A determination as to the community character of certain property is res judicata where it is fairly in issue .and both husband and wife are parties. And in jurisdictions where the wife is not a necessary party in actions against the husband affecting community real property, a judgment against the husband is binding and conclusive upon him, the wife, and the community estate, is not to be impeached by a collateral action, and stands as a valid adjudication until annulled or reversed in some direct proceeding for that purpose. Where the wife directly attacks the judgment and seeks to have it reopened, she can urge only such defenses as existed at the time of the rendition of the judgment, and not those subsequently accruing. And even in jurisdictions where both husband and wife are necessary parties in actions affecting community real property, a judgment either for or against the husband in an action to which the wife is not a party is not necessarily void on collateral attack; where the action was brought by the husband alone, the judgment is binding on the wife, unless she avoids it by showing that it was commenced and prosecuted without her knowledge or consent.” 31 C. J. 160.

This court has many times held that the domicile of the husband is the domicile of the wife, even though the wife may abandon and desert her husband and live in another State. The husband is the head of the family, and, as such, according to the opinion of the majority, had the right to represent his wife in the suit, which resulted in a decree against the husband. Moreover, if he did not have the absolnte right to do so, when the writ of possession was issued the wife made no claim to any interest in the land separate from her husband. She vacated when he did, and made no claim that it was her property and that she was not bound by the judgment against her husband. Her conduct was a ratification of the acts of her husband, and she is bound by the judgment, and the plea of res judicata should have been sustained. Again, the person under whom she claims was a party to the suit, and that judgment would bind her. She claimed under Mary Day, and the suit was against Mary Day, and the decree was against Mary Day, specifically awarding to appellants’ grantor against Mary Day and the husband of the appellee. And judgments are binding upon all parties and their privies.

“In regard to the persons in whose favor or against whom the doctrine of res judicata is 'applicable, it is well settled that a judgment or decree is binding upon all parties to the proceeding in which it was rendered and their privies.” 15 R. C. L. 1005.

“As nsed when dealing with the estoppel of a judgment, privity denotes mutual or successive relationship to the same right of property, and it is classified as privity in estate, privity in blood, and privity in law, in all of which kinds there must be an identity of interest. A privy in estate is one who derives title to property from another. He comes in by succession to property by contract or law. To make one person a privy in estate to another, that other must be predecessor in respect to the property in question, from whom the privy derives his right or title. Examples of this-class of privies are joint tenants, donor and donee, lessor and lessee, and successors in office. Privies in representation are illustrated • by executor and testator, administrator and intestate.”. 15 R. C. L. 1015.

In this case the appellee here was certainly privy in estate to Mary Day, under whom she claimed. Claiming under Mary Day and being the wife of Isom Hervey, living with him at the time, the husband being the head of the family, the judgment against Mary Day and the husband of Senie Hervey is binding on Senie Hervey.

Having held that the plea of res judicata was proper and should have been sustained, it becomes unnecessary to discuss the other points raised by counsel.

The judgment of the court is reversed, and remanded with directions to sustain the plea of res judicata and dismiss plaintiff’s complaint.


text:
    Webb v. State.
    Opinion delivered March 19, 1928.
    1. Animals — permitting stock to run at large. — Evidence held to sustain a conviction Of permitting stock to run at large in violation of Sp. Acts 1921, No. 593, § 4, as amended by Sp. Acts 1923, No. 237. •
    2. Constitutional law — legislative powers. — The State Constitution is not a grant or enumeration of legislative powers, but is a limitation on the exercise of such powers, and the Legislature can exercise all the powers not expressly or by fair implication forbidden by the Constitution.
    3. Constitutional law — when statute invalid. — Courts will not declare an act of the Legislature unconstitutional, unless it clearly appears that some provision of the Constitution has been violated or that the Legislature is prohibited, either expressly or by implication, from enacting the statute.
    Appeal from Crawford Circuit Court; J. O. Kin-cannon, Judge;
    affirmed.

      O. D. Thompson, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Mehaffy, J.

Appellant, Joe T. Wehb, was indicted, charg’ed with permitting stock to run at large in section 23, township 10 north, range 31 west, in Crawford County, Arkansas. The act under which he was indicted is a special act of 1921, prohibiting the running at large of stock in certain territory and fixing the punishment for a violation of said act.

Act No. 467 of the Acts of 1923 amended act 593 of the Acts of 1921, enlarging the restricted territory so as to include the lands mentioned in the indictment. The original act, act 593 of the Acts of 1921, contains the following provision:

Section 4. If any owner or person having charge of any such stock or fowls allow or permit the same to run at large in said territory, he shall b<= deemed guilty of a misdemeanor, and, on conviction, shall he fined $10, and for each subsequent offense shall be fined said sum. and imprisoned in the county jail some period- of time, not exceeding 30 days.”

This case was tried upon an agreed statement of facts containing the following:

“The defendant, Joe T. Webb, did permit cattle, on the 8th day of March, 1927, to run at large, and outside of an inclosure, within section 23, township 10 north, range 31 west, 'Crawford County, Arkansas. That the said Joe T. Webb was the owner of said cattle, knowingly permitting them to run at large as aforesaid.”

The cause was tried before the court sitting as a jury, and appellant was found guilty and his punishment fixed at a fine of $10.

Appellant filed a motion for a new trial, which was overruled, exceptions saved, and he prosecutes this appeal to reverse said judgment. The appellant filed a demurrer in the court below, and in his argument he discusses two questions only. First, it is insisted that the evidence is insufficient to justify the conviction.

We do not agree with appellant in this contention. The Legislature passed the act creating the district, fixing its boundaries, prohibiting the running at large of stock within said district; and appellant, in the agreed statement of facts, 'admits that he owned the stock and knowingly permitted them to run at large within said district. If he did this, he violated the act, and the evidence was ample to sustain the conviction.

The next contention is that the court erred in overruling his demurrer to the indictment, because he alleges that the act under which the indictment was drawn is unconstitutional. It is argued that the act of 1921 was a general act, and that in 1923 the Legislature passed a special act amending the general law, and it is contended that the Legislature could not constitutionally do this. In the first place, the original act of 1921 was a special act, and it was amended in 1923 by another special act simply by including additional territory or adding additional territory to the original district. In 1915 the General Assembly enacted a statute providing for stock-law districts to be formed upon vote of the qualified electors of three or four townships in any county. The act provided for the county court ordering an election upon the petition of a certain per cent, of the qualified electors. Under this general act a stock law was formed in Carroll County. In 1919 a special act was passed by the Legislature, exempting one of the townships and the electors and citizens of said township from the provisions and effect of the general act. It was contended that the special act was void. The court said, in passing on the Carroll County case:

“The court also sustained the attack on the ground that it is not within the power of the Legislature to dismember a district created under a valid statute by vote of the electors in accordance with the terms of the statute. The answer to this is that the statute, when put into operation, is a police regulation, and is entirely subject to legislative control. The organization of the district is dependent upon legislative will, and it is entirely within the power of the lawmakers to either repeal or amend the statute, or to abolish the district, or to. exclude any territory from it. In other words, the power of the Legislature over the subject is supreme, there being no fixed right in a mere police regulation.” Johnson v. Pinckley, 141 Ark. 612, 217 S. W. 805.

The State Constitution is not a grant or enumeration of legislative powers, but is a limitation upon the exercise of such powers, and the Legislature can exercise all the powers not expressly or by fair implication forbidden by the Constitution. We know of no provision of the Constitution that prohibits the Legislature from creating the district, amending the act, abolishing the district, or making such changes as, in its judgment, are desirable. The Legislature can do anything which is not forbidden, either expressly or by implication. See Butler v. Bd. Dir. Fourche Drain. Dist., 99 Ark. 100, 137 S. W. 251; St. L. I. M. & S. R. Co. v. State, 99 Ark. 1, 136 S. W. 938; Vance v. Austell, 45 Ark. 400.

Courts will not declare 'an act of the Legislature unconstitutional unless it clearly appears that some provision of the Constitution has been violated or that the Legislature is prohibited either expressly or by implication from enacting the statute. The Legislature clearly had the right to pass the original act and the right to amend it, as it did in 1923.

The judgment of the circuit court is affirmed.


author: McHaney, J.

text:
    Yeager v. State.
    Opinion delivered March 19, 1928.
    1. Criminal law — sufficiency of evidence. — Where there is any substantial testimony tending- to support a verdict, the judgment of conviction will not foe set aside; but, if there is no substantial evidence tending to connect the defendants with the commission of the crime, or if the evidence is purely speculative or conjectural, the verdict will be set aside.
    2. Intoxicating liquors — making mash — sufficiency of evidence. • — Evidence held to sustain a conviction of unlawfully making and fermenting mash fit for distillation.

      3. Intoxicating liquors — making mash — sufficiency of evidence. —-Where, in a prosecution for unlawfully making mash fit for distillation, the only evidence was that defendant was seen handing whiskey over a fence to his co-defendant, it was insufficient to sustain a conviction of the co-defendant for unlawfully making and fermenting mash fit for distillation.
    Appeal from Miller Circuit Court; J. H. McCollum, Judge;
    reversed as to Beil Yeager; affirmed as to George Yeager.

      Dexter Bush and Will Steel, for appellant.
    H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   McHaney, J.

Appellants were indicted, tried, convicted and sentenced to one year each in the penitentiary on a charge of unlawfully making and fermenting mash fit for distillation. They prosecute this appeal to reverse the judgment on the sole issue that the evidence is insufficient to support the verdict.

The rule of law governing this court on this assignment of error is that, if there is any substantial testimony tending to support the verdict, the judgment of conviction will not be set aside, for the reason that the guilt or innocence of the defendants is purely a question of fact for the determination of the jury. If, however, this court finds that there is no substantial evidence tending to connect the defendants with the commission of the crime, or if the evidence in this regard is purely speculative or conjectural, then it is the duty of this court to set aside the verdict. Hogan v. State, 170 Ark. 1145, 282 S. W. 984; Cook v. State, 173 Ark. 711, 293 S. W. 32; Holford v. State, 173 Ark. 998, 294 S. W. 33.

The evidence on behalf of the State, briefly stated, is that the officers had information that a still was being operated in the vicinity of the residence of the appellants, and, acting upon such information, they went into that locality and made a search. They found a still located from a half to one mile north of George Yeager’s residence, and two large vats of mash. It had rained recently, and the officers found wagon tracks leading from the still into George Yeager’s lot. They followed this wagon track from the still right in behind George’s residence, where they found a wagon with a 3%-inch tire on it, which one of the officers said looked like the wagon that had made the trip to the still. Another road or trail led from George Yeager’s house east through his field into a ravine, where a still-site was found. A vat was also found at the still-site containing a quantity of mash fit for distillation. Apparently the still had been moved, or was in the process of being removed, from the site east of the house to the place where it was found north of the house, and apparently the mash was being transported from the old to the new still, as the officers found mash scattered along the road where it had spilled from the containers while being transported, and this condition existed right up to George Yeager’s house. Two of the officers saw Ben Yeager and George in the field back of George’s house, Ben being on the inside and George on the outside of the fence, and Ben was.handing whiskey over the fence to George in half-gallon containers. They halloed at them, and George ran away. The officers found some broken half-gallon containers of moonshine whiskey, and they found Ben with a half-gallon still unbroken. These are substantially all'the facts that tend to connect either of them with the unlawful possession of mash fit for distillation.

Under this state of the record, we are of the opinion that the evidence was sufficient to go to the jury on the question of the guilt or innocence of George Yeager, but was insufficient as to Ben. Ben lived with his brother Gus a mile and a half to the southwest of George’s place, and the only evidence in the record tending to connect him with any offense was. the fact that he was handing liquor over the fence to George. This might have been sufficient on a charge of possessing and transporting, but certainly was insufficient to show that he ever had anything to do with the making or possessing of the mash for which he was indicted. While it may be true, as the jury has found, that Ben is. equally guilty with George on the charge against him, yet there is no substantial testimony in the record to show that he was guilty. The jury, in order to convict him, would have to deal purely with speculation and conjecture, which are insufficient in law to justify a conviction.

The judgment of conviction as to George Yeager will therefore be affirmed, and as to Ben Yeager.it will be reversed, and remanded for a new trial.


text:
    Lyons v. Smith.
    Opinion delivered March 19, 1928.
    1. Damages — mental suffering. — Where defendant trespassed upon plaintiff’s property and prevented her from having her land put into cultivation by intimidation and threats of violence, an instruction permitting recovery for plaintiff’s humiliation and mental suffering was not erroneous, as the rule excluding recovery for mental suffering unaccompanied by physical injury was inapplicable.
    2. Trial — instruction not applicable to evidence. — Where, in a suit for damages by reason of defendant’s trespass on plaintiff’s property and interference with the cultivation thereof, the evidence showed only threats of violence, refusal of defendant’s requested instruction that the jury must have found that actions of violence prevented cultivation of the land, held proper.
    Appeal from Marion Circuit Court; J. F. Koone, Judge;
    affirmed.

      J. H. Black, for appellant.
   McHaney, J.

Appellee had been in the peaceable possession for 35 or 40 years of a certain plot of ground in Rush, Arkansas, containing about three-fourths of an acre, on which she lived, and which she cultivated for garden and truck purposes. In the spring of 1926 she employed one John Melton to plow her land so that she could plant same for garden and other purposes for such year. When said Melton appeared with team and plow for this purpose, appellant, who is the president of the Morning Star Mining Company, came upon the property and forbade Melton from plowing the lands,’ and by threats and intimidation, in the presence of appellee, prevented him from doing such work, cláiming that the Morning Star Mining Company was the owner of such land. An argument then occurred between appellant and appellee regarding the title to the land, in which appellant did some ugly talking. According to the testimony of appellee, which is not disputed, appellant became angry and conducted himself in such a manner as to shock and hurt appellee’s feelings, causing her to cry and to become sick on account of the worry and trouble over this matter; that appellant also prevented any one else from plowing up said land for her. According1 to Mrs. John Melton, who was present and heard the conversation, appellant used some rough language to appellee, acted angry, and appeared vindictive. The proof further showed that the usahle value of the land was $100, and that it would cost' approximately $25 to grow the crop. No evidence was offered on behalf of appellant.

Appellee brought this action against the Morning Star Mining Company and appellant, to recover actual and punitive damages, but, at the conclusion of the testimony, the court instructed a verdict for the Morning Star Mining Company, and submitted the case to the jury as to appellant. There was a verdict and judgment for appellee for $75 actual damages, and $25 punitive damages.

Error is assigned on account of instruction No. 1 given by the court. It is as follows: “The court instructs the jury that, if you find for the plaintiff, you will assess her damages in any sum not to exceed $100, as you may believe from the evidence will compensate her for being wrongfully deprived of the use of her land for the year 1926, and if you find for the plaintiff, and further find that plaintiff was caused to suffer insult, annoyance, humiliation, oppression, aggravation, mental suffering, by the willful, malicious, vindictive or wrongful acts of James K. Lyons, at times when said Lyons was ordering the employee or employees off or from her premises, who had gone there to work for plaintiff, or by fear, frightening or threatening prevented other parties from working for plaintiff on her lands, or that defendant acted with oppressive or vindictive spirit and manner in presence, about and toward the plaintiff, then you have a right to give the plaintiff exemplary damages in addition to compensatory damages, in any sum which you may believe proper, not excéeding $300, as shown from the evidence you may believe will be commensurate with the wrongs done to plaintiff. ’ ’

It is said that this instruction is erroneous for the reason that mental suffering, annoyance, fear, intimidation, etc.-, unaccompanied by physical injury, will not sustain a cause of action for damages, and the cases of C. R. I. & P. Ry. Co. v. Moss, 89 Ark. 187, 116 S. W. 92, and St. L. I. M. & S. R. Co. v. Taylor, 84 Ark. 42, 104 S. W. 551, 13 L. R. A. (N. S.) 159, are cited in support of this contention. These cases are authority to the effect that mental anguish or mental suffering cannot be made the basis of an action against a railroad company, in the absence of physical injury accompanying same. Many other cases may be found in the reports to the same effect, but these cases are not controlling here, and have no application to the facts in this case. Here the appellant, by the undisputed evidence, committed a willful and wanton wrong against appellee, trespassing upon her property and preventing her from having her land put into cultivation by intimidation and threats of violence. By such acts he caused her to lose the productive value of such land, which the jury has found to be $75. This- loss she sustained directly from 'appellant’s tortious acts. By its verdict the jury has also found that his acts were willful and malicious, and has penalized him therefor in the sum of $25. Having suffered this actual loss, we think the court correctly instructed the jury in this regard.

It is next insisted that the court erred in refusing to give appellant’s requested instruction No. 1, to the effect that, before they could find for-the plaintiff against appellant, they must find that appellant, through acts of violence, prevented the plaintiff from cultivating the lands in question. This instruction was properly refused, as there was no evidence of .violence in the case, only threats and putting in fear of violence.

We find no error, and the judgment is affirmed.


author: Hart, C. J.,

text:
    St. Louis-San Francisco Railway Company v. Road Improvement District No. 7 of Little River County.
    Opinion delivered March 26, 1928.
    1. Appeal and error — holding on former appeal. — In an action by a road district against a railroad company for a sum expended in the construction of a railroad crossing, the holding of this court on a former appeal that the. railroad had notice to construct a crossing, held res judicata.

    2. Railroads — liability for construction of crossing. — In a road district’s action against a railroad company for a sum expended in the construction of a crossing, as required by Road Acts 1919, No. 292, p. 1205, held that the railroad was liable for the sum expended over the entire width of its right-of-way, and not merely across its tracks.
    S. Evidence — judicial notice. — It is a matter of common knowledge that public travel is conducted largely by motor vehicles, and this is especially true where public highways are improved.
    4. Railroads — construction of crossing — notice to railroad. — In an action by a road district against a railroad under Road Acts 1919, No. 292, p. 1205, for a sum expended for construction of crossings where, after notice had been given to the railroad, plans were altered by execution of a supplemental contract because of increased price immaterial and the necessity of more material, held that the supplemental contract was not a substantial change in the plans requiring additional notice to the railroad.
    5. Railroads — liability for construction of crossing. — In an action by a road district against a railroad company for a sum expended in the construction of a crossing, where the railroad contended that it could not be compelled to construct the crossing because it had paid assessments for benefits under provision of Road Acts 1919, No. 292, p. 1205, and could not legally be required to pay an additional amount, held that the construction of highway crossings is under the police power of the State, and had no part in the assessment of benefits, and that the railroad company was liable.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    affirmed.
    STATEMENT OP PACTS.
    Road Improvement District No. 7 of Little River County, Arkansas, instituted this action in the circuit court against St. Louis-'San Francisco Railway Company to recover judgment in the snm of $1,929.36 for an amount expended by it in constructing a railroad crossing, which the defendant was required to construct, under act 292 of the road acts of 1919, and which it had failed and refused to construct as required by the terms of said act. This is the second appeal in the case.
    Upon the former trial the court sustained a demurrer to the complaint, and dismissed it for want of equity. Upon appeal the judgment was reversed, and the court held that a road improvement district, compelled to construct a highway crossing at a railroad, is not a mere volunteer, and' is therefore entitled to recover the cost thereof from the railroad. It was further held that the act under which the road district was organized, having provided that, whenever the contemplated highways should cross the track of any railroad, the company owning the track should make the crossing and bear the cost and maintenance thereof, notice to the railroad company to construct such highway crossing was not necessary. Road Imp. Dist. No. 7 v. St. Louis-S cm Francisco Ry. Co., 172 Ark. 368, 288 S. W. 881.
    Upon the retrial of the case it was shown that the commissioners of -the road improvement district had filed in the office of the county clerk plans and specifications for the highways to be improved, as required by the act, and that the plans covered the four crossings involved in the suit. The amount of yardage of each crossing and an itemized statement of the materials out of which it should be constructed and the cost thereof were filed with the plans and specifications. The contract for the construction of the highways provided for the crossings to be constructed in the same manner and at the same cost as the balance of the highways. After the original contract was entered into, the price of materials increased, and it became necessary to make an additional contract in order to secure the construction of the proposed highways. The amount of materials to be used in the crossings was also increased. This supplemental contract was entered into about a year after tbe execution of tbe original contract, and tbe highway crossings in question were constructed under its terms. An itemized statement of the materials used and the cost of construction was introduced at the trial in the court below. The attorney of the road district notified the section foreman and the station agent of the railroad company to construct the crossings in question, and the railroad company failed and refused to construct the same. Evidence was adduced by the railroad company tending to show-that the cost of materials and price of labor in the account of the road district were excessive. Other facts will be stated or referred to in the opinion.
    The jury returned a verdict for the plaintiff in the sum of $1,500, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      King, Mahaffey & Wheeler and A. P. Steel, for appellant.

      J. O. Livesay and Otis Gilleylen, for appellee.
   Hart, C. J.,

(after stating the facts). The road district in question was organized pursuant to a special act passed by the General Assembly of 1919. Boad Acts of 1919, vol. 1, p. 1205. Complaint is again made that no notice to construct the crossings in question was given the railroad company. This question was decided adversely to the contention of counsel for the defendant upon the former appeal, to which attention has been called above. Upon the former appeal the court had under consideration the provisions of § 24, which provides that, when the highways shall cross the track of a railroad, the company owning the track shall make the crossing of the same material and in the same manner as the highway on either side, and shall bear the cost of constructing the crossing and its maintenance. The court said that, under the statute, it was the duty of the railroad company to construct and maintain the crossing, and that the railroad company must take notice of the duties imposed upon it by the statute. The court also called attention to the fact that the plans for the crossing bad been prepared and filed with the clerk, and that no additional notice was necessary to make. the requirements of the statute binding upon the railroad company. This holding of the court upon the former appeal became the law of the case and governs us upon the present appeal.

It is next contended that the judgment- should be reversed because the crossing was constructed over the entire width of the right-of-way, and not merely across its tracks. This contention of counsel for the defendant was decided adversely to them in Chicago, Rock Island & Pacific Ry. Co. v. Redding, 124 Ark. 368, 187 S. W. 651, Ann. Cas. 1918B, 183. In that case it was held that, in constructing and maintaining crossings over public roads and streets, railroad companies must anticipate the reasonable demands of the public, and, where the traffic requires it, the crossing must be made available for the entire width of the road-or street. The road improvement district in question was organized for the purpose of improving certain public highways in the district. The plans for the proposed improvement contemplated that the railroad crossings should be constructed of the same material as the roads on either side. This was proper, in order to secure safety in travel. It was also proper that the whole of the right-of-way should be considered a part of the crossing. The crossing of the railroad would be more dangerous than if the crossing was not constructed of the same material and in the same manner as the highways on either side of it. It is a matter of common knowledge that public travel is conducted largely by motor vehicles, and this is especially true where the public highways are improved, as in the present case.

It is next contended that the judgment should be reversed because the original plans were altered after they were filed in the office of the county clerk. This is true, but such a course became necessary in order to secure the construction of the proposed improvement. The price of materials greatly advanced, and it became necessary to execute a supplemental contract in order to secure the construction of the improved highways according to the plans and specifications on file in the office of the county clerk. In order to accommodate the public travel and meet its reasonable requirements, it became necessary to change the plans of the public crossings, so that they required more material to be used in the construction thereof. No material change in the plans was had, however; and we do not think that the additional material and the advance in price which caused the execution of the supplemental contract could be said to be such a substantial change in the plans and specifications as to require additional notice to the railroad company.

It is next insisted-that the railroad company could not be compelled to construct the crossings, because it had paid its assessment of benefits under the provisions of the act, and could not legally be required to pay any further additional amounts of taxes for the improvement of the highways. We do not agree with counsel in this contention. The construction of the highway crossings was under the police power, and had no part in the assessment of benefits. In State of Minnesota v. St. Paul, Minneapolis & Manitoba Ry. Co., 98 Minn. 380, 108 N. W. 261, 28 L. R. A. (N. S.) 298, 120 Am. St. Rep. 581, 8 Ann. Cas, 1047, it was held that the State may, in the exercise of its police power, impose upon railroad companies whose lines intersect public highways laid out after the construction of the railroad the uncompensated duty of -constructing and maintaining at such crossings all such safety devices as are reasonably necessary for the protection of the traveling public. It was further held that such a requirement, being referable to the police power, is not a taking of private property for public use, in violation of the Constitution. This case was affirmed by the Supreme Court of the United States in 214 U. S. 497, 29 S. Ct. 698, 53 L. ed. 1060, on the authority of the Northern Pacific Railway Co. v. Duluth, 208 U. S. 583, 28 S. Ct. 341, 52 L. ed. 630. In the latter case it was held that, under the police power, a municipal corporation could require a railway company to repair, at its own expense, a viaduct and its approaches which carried a street over the right-of-way, notwithstanding the fact that the street was opened after the construction of the railroad, and that the railroad company’s charter did not expressly require it to construct or maintain crossings at streets thereafter opened. It was also held that the right to exercise the police power is a continuing one that cannot be limited or contracted away by the State or its municipality, nor can it be destroyed by compromise, as it is immaterial upon what consideration the attempted contract is based.

This holding is in accordance with our previous decisions bearing on the question. In St. Louis-San Francisco Rd. Co. v. Fayetteville, 75 Ark. 534, 87 S. W. 1174, it was held that, upon the opening of a new street across a railway right-of-way, the railway company was not entitled to the prospective cost of erecting an overhead crossing, as the Legislature might at any time compel it, without compensation, to construct such a crossing and keep it in repair.

Again, in Kansas City Southern Ry. Co. v. City of Mena, 123 Ark. 323, 185 S. W. 290, it was held that, where a city opened a street across the right-of-way and tracks of a railroad company, the railroad company is required to construct and maintain the crossing, but it cannot recover from the city any damages or compensation on that account.

The judgment of the circuit court was correct, and it will therefore be affirmed.


text:
    Missouri Pacific Railroad Company v. Elvins.
    Opinion delivered March 26, 1928.
    1. Release — mistake as ground for rescission. — A release of damages for personal injuries cannot be avoided on the ground of mistake, merely because the injuries proved more serious than the releasor at the time of executing the release believed them to be, even though his opinion may have been based upon that of the physician employed by the releasee to examine and report on the extent of his injuries.
    2. Release — innocent misrepresentation by releasee’s physician. —Innocent misrepresentations of the releasor’s injury made by the releasee’s physician may be effective to avoid a release induced thereby.
    3. Release — execution under a mutual mistake. — In an action by an automobile driver injured by being struck by a train while crossing the railroad track, brought after execution of his release, evidence held to sustain a finding that the settlement was made under mutual mistake of the parties as to whether the injuries were temporary or permanent.
    4. Release — rescission—tender of consideration. — In an action to rescind a release obtained under mutual mistake as to whether the injuries were temporary or permanent, held that a tender of the consideration received was not a condition precedent to the maintenance of the action.
    5. Release — ratification of settlement under mistake. — In an action to rescind a release for personal injuries where plaintiff collected a draft given for such release after he had ascertained from an X-ray picture that there had been no union of bones in his leg, and that the injuries were probably permanent, held that collection of the draft did not constitute a ratification of the settlement.
    6. Railroads — negligence—sufficiency of evidence__In an action by an automobile driver injured by being struck by a train at a railroad crossing, evidence held to sustain a finding that his injuries were occasioned by the negligence of the railroad company.
    7. Railroads — invitation to cross track. — In an action by an automobile driver against a railroad company for injuries sustained by being struck by a train while crossing the track, where the flagman failed to raise his stop signal, held that there was an implied invitation to cross the track resulting from the flagman’s action.

      8. Damages — when not excessive. — A verdict of $18,500 for a broken leg, bones of which failed to unite, held not excessive, in view of Crawford & Moses’ Dig., § 8575.
    9. Evidence — judicial notice — value op money. — Courts and juries may take judicial notice that money today has much less purchasing power than it had 20 or even 15 years ago.
    Appeal from Hempstead Circuit Court; James 77. McCollum, Judge;
    affirmed.
    STATEMENT OF FACTS.
    Jesse J. Elvins instituted this action in the circuit court against the Missouri Pacific Bailroad Company to recover damages for personal injuries caused by the negligent operation of one of the defendant’s passenger trains while he was driving over a public crossing in Hope, Arkansas. The defendant denied any negligence, and set up in bar of the action a release of all damages executed by the plaintiff.
    The record shows that the plaintiff was injured' while driving an automobile across a public crossing where the tracks of the Missouri Pacific Bailroad Company cross Walnut Street, in Hope, Arkansas. Walnut Street is 36 feet wide between the curbs where it crosses the tracks of the Missouri Pacific Bailroad Company in Hope. At that point the railroad runs east and west, and Walnut Street runs north and south. There is a large freight station to the right of the crossing, which obstructs the view of any one approaching the railroad tracks from the south. There is a house-track between the freight depot and the main track. North of the main line are several other tracks. There are stop-gates at the crossing, operated from a tower, but they were not in use on the day of the accident because they were out of repair. A flagman was stationed at the crossing, whose duty it was to hold up a stop flag when trains were approaching the crossing. Passenger train No. 5 was late on that day. The flagman had held up his stop sign for a passing switch engine. A. E. Holstead, who was approaching the crossing from the south in an automobile, saw the switch engine on the north side of the main track, and stopped to let it pass over the crossing. Then he started up his automobile, and drove on across the track. He did not hear any warning of an approaching train by the ringing of a bell or the sounding of a whistle. The crossing watchman or flagman was on the north side of the track, standing with his flag down, talking to other persons. Other witnesses near the scene of the accident said they did not hear the warning of an approaching train by the ringing of a bell or the sounding of a whistle. They also testified that the flagman was standing with his flag down, and did not give any warning of the approach of a train.
    According to the testimony of Jesse J. Elvins, the plaintiff, he drove up to the Walnut Street crossing of the Missouri Pacific tracks from the south, and stopped his automobile behind another car which had stopped for the crossing. The gates were open, and he heard no bell or whistle warning him of the approach of a train. He had some acquaintance in Hope, but was not familiar with conditions there. When he saw a man ahead of him drive across the track, he followed. He saw two men on the north of the track, but they did not hold up any stop sign. Just as the plaintiff drove across the first track on the main line, he saw that the train was right in his face, but could not avoid it. The train struck the automobile in which he was riding, and severely injured him. His leg was broken between the knee and the hip.
    The plaintiff was carried to a hospital in Hope, and attended by Dr. J. H. Weaver, a resident surgeon at Hope for the Missouri Pacific Hospital Association. The plaintiff was kept in the hospital for about 30 days, with his leg in a cast. During this time the plaintiff talked with the claim agent of the defendant about settling his damages. Dr. Weaver measured his leg every day, and told him that there would be a good alignment of the bones, and that there would only be a normal shortening of the limb amounting to one-half inch. Dr. Weaver told the plaintiff that he would not make an X-ray of his leg, because it might disturb him. He said that the bones had knit together in good alignment, and that he would be up in a couple of weeks and out of the hospital in less than 30 days. Relying on these representations, the plaintiff signed a release of all damages in favor of the railroad company for $3,500 and his hospital fees for 30 days. On the day after the settlement an X-ray picture was made of the plaintiff’s leg, and it was ascertained that the bones'had not united, and Dr. Weaver admitted to the plaintiff that he was responsible to the plaintiff for the condition of his leg. The plaintiff was then carried to Dr. Willis Campbell, at Memphis, Tennessee, and Dr. Campbell performed three operations on his leg. These operations were very painful, but did not cause the bones of the leg to unite. Subsequently an operation was also performed by Dr. Risner of Chicago. None of these operations were successful, arid the plaintiff has to wear a brace on his leg to use it. He spent all the money received in settlement for treatment, and $800 more. The plaintiff was forty-four years of age, and had contracted a venereal disease while in the army, but had been pronounced cured.- He would not have made the settlement if he had known that he was permanently injured. He relied upon the statement of Dr. Weaver to the effect that there would be a good alignment of the bones of his leg and that they had united.
    Another witness who was present when the settlement was made corroborated the plaintiff as to the representations made by Dr. Weaver and as to the subsequent fact that the bones of the plaintiff’s leg had not united.
    According to the evidence of Dr. Willis Campbell, there was no approximation of the ends of the bones. A blood test showed that the plaintiff had had syphilis, and no union of the bones was obtained by the operations performed upon Mm. The bone showed no sign of syphilis when Dr. Campbell first examined him. Sometimes bones fail to unite in persons who have not had syphilis, and sometimes the bones of persons with syphilis do unite. According to the evidence of the witness, syphilis was the cause in the present case of' the bones not uniting. Witness said that he did not believe plaintiff would ever have a normal limb even with a successful bone graft operation.
    According to the testimony of Dr. L. M. Lile, the leg of the plaintiff which was injured is of no use, and his injury is permanent.
    According to the evidence adduced for the defendant, the bell of the passenger train was ringing and the whistle was. sounding as it approached the Walnut Street crossing. The engineer and fireman were both keeping a lookout, but were not able to stop the train after they saw the. plaintiff attempting to drive over the crossing. The flagman at the crossing testified that the gates were out of order, and that it was his duty to hold up a stop signal when a train was approaching the crossing. He had held up his stop sign for a switch engine to pass over the crossing. After the switch engine had passed, he lowered his signal and turned to talk to some persons who were near him. He had forgotten that the passenger train in question was late, and did not see it until it was right at the crossing. Other witnesses testified that the flagman had up his signal when the switch engine passed, and that he had it up just as the passenger train in question approached the crossing.
    According to the testimony of Dr. J. H. Weaver, he examined the plaintiff after the accident, and found .the right femur, the large bone running from the knee to the hip, broken in-two. He put the plaintiff in a wire splint, with a weight extension on it to overeóme the rigidity of the muscles. The witness had set a great many bones, and was competent to perform that operation. He put the bones in place at the time he set it. He-had three bricks for weights for the first ten. days, and for the following ten days he had two bricks. Ordinarily he would expect results in twenty-five or thirty days to permit a removal of the splint. On the next morning after the injury he asked the plaintiff expressly if he had ever had syphilis, and the plaintiff told the doctor he had never had it. The splints were taken off at the end of four weeks, but this was not done with reference to the settlement. It was not necessary to take an X-ray before that time. The witness had been keeping measurements daily and regarded that as his guide. There was no indication of overlapped bones. After removing the splints he took an X-ray, and this showed that there was about one and one-half inch overlap in the bones. If there had been an overlap before the measurements, this would have been shown. If for any reason there is a non-union of the bones, when the splints were removed the contraction of the muscles would misplace the bone. The plaintiff did not lie quietly in bed, and would not leave his extension alone. He would raise up in bed and reach down and take the extensions off his leg. This might have prevented the bone from uniting. Another reason is that syphilis might have prevented the bones from uniting. The witness had nothing to do with the settlement. According to the testimony of this witness and of the claim agent, the plaintiff. was anxious to make the settlement, and on several occasions tried to hurry it up.
    In rebuttal the plaintiff denied that Dr. Weaver asked him if he had ever had syphilis, and said that if he had he would have told him that he had it while in the army.
    The jury returned the following verdict: “We, the jury, find for the plaintiff, and assess his damages in the sum of $18,500, less credit of $3,500.”
    Judgment was rendered upon the verdict, and the defendant has appealed to this court.

      E. B. Kinsworthy and R. E. Wiley, for appellant.

      Lithe F. Monroe and Steve Carrigcm, for appellee.
   Hart, C. J.,

(after stating the facts). The main reliance of counsel for the defendant for a reversal of the judgment is that the plaintiff is bound by the release which he executed in favor of the railroad company. The release recites that, for the sum of $3,500, the plaintiff releases, discharges'"''find receives full satisfaction of all damages for personal injuries growing out of the accident in question.

In 48 A. L. R. 1464, it is said that the general rule is that a release of damages for personal injuries "cannot be avoided on the ground of mistake merely because the injuries prove more serious than" the releasor, at the time of executing the release, believes them to be, and several Arkansas cases are cited. On page 1467 of the same case-note it is said that the rule is well settled, according to the great weight of authority, that a general release of a claim for personal injuries may, under proper circumstances, be avoided on the ground of mutual mistake as to the nature or circumstances of the -injuries, and several Arkansas decisions are cited on page 1471 in favor of the rule. It is true that, where there is no misrepresentation or fraud" on the part of the releasee, a releasor cannot subsequently avoid his release on the ground that his injuries were more serious than he had thought them to be, even though his opinion at the time of making the settlement may have been based upon that of a physician employed by the releasee to examine and report on the extent of his injuries. It is equally true, however, that an innocent misrepresentation of the releasor’s injury, made by the releasee’s physician, may be effective to avoid a release induced thereby. In the first type of cases the parties rely upon opinions and in the latter cases upon statements of existing facts.

In St. Louis, Iron Mountain & Southern Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, it was held that, if the chief surgeon of a railroad company fraudulently represents to an injured employee that his injuries are slight and temporary, when they are serious and permanent, and this induces him to sign a release of the railroad company from damages, such release is not binding. It was also held that, if the chief surgeon of a railroad company in good faith represents to an injured employee that his injuries are slight and temporary, when they are serious and permanent, and thereby misleads him into signing a release of the railroad company from damages, such release is not binding.

Again, in St. Louis, Iron Mountain Southern Ry. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187, where, in an action for injuries to a railroad employee, there was evidence sufficient to warrant a finding that the physician or surgeon who treated the plaintiff at the hospital represented to him that he was not permanently injured, and that .the settlement was induced by this statement, the court held that, even if this statement of the company’s physician was made in good faith, the release was not binding if the injuries were not slight and temporary, as represented, but were serious and permanent.

In a later case, F. Kiech Manufacturing Co. v. James, 164 Ark. 137, 261 S. W. 24, it was held that, where a plaintiff, injured in the defendant’s employment, signed a release, relying upon a mistaken opinion of the defendant’s doctor that his injury was not permanent, he was not bound thereby, notwithstanding the release recites that he acted on his own judgment, and that no representations were made on which he relied.

In St. Louis-San Francisco Ry. Co. v. Cox, 171 Ark. 103, 283 S. W. 31, it was held that, where a release of liability was procured from a passenger injured in the derailment of a train, by means of false representations made by a surgeon connected with the railroad hospital, to the effect that her injuries were cured, when in fact they were not, the release was not binding.

In Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9, it was said that this court has frequently held that a release executed by an injured party, relying upon the mistaken opinion of the physician of the party responsible for the injury, that it was slight and temporary, and not permanent, is not binding upon the party making it.

Under the evidence in the ease before us the jury was fully warranted in finding that the settlement was made under a mutual' mistake of .fact as to the nature and extent- of the plaintiff’s injuries. In fact, the undisputed evidence shows that the injuries to the plaintiff turned out to be permanent, when, at the time of the settlement, both parties thought they were only temporary. . The physician uf the' defendant, who set the leg of the plaintiff and had him under his charge for about thirty days after the accident, told the plaintiff that the bones had been placed in good alignment and that they were united. It turned out that there had been no union of the bones, and that, as soon as the splint was removed, which was done on the next day aftér the settlement was made, the bones overlapped, and that, after successive operations by eminent surgeons, no union .of the bones could be had. In the opinion of the physician, non-union was caused because of the bad condition of the blood of the patient resulting from syphilis, which he had contracted during the World War. According to the evidence for the defendant, its physician expressly asked the plaintiff, after the accident, if he had ever had syphilis, and the plaintiff replied that he had not. The plaintiff denied that the physician 'asked him this question, and said that he would have told him the facts if such question had been asked him. The jury found this issue in favor of the plaintiff, and the case stands as if no such question had been asked. It follows then that the undisputed proof shows that the settlement was made under a mutual mistake of the parties as to whether - the injuries were temporary or permanent.

It is earnestly insisted, however, by counsel for the defendant that the release must stand because the plaintiff did not tender the consideration received by him before he instituted the present action. It may be conceded that this is the general rule laid down by the text-writers, but we are of the opinion that this court has adopted the contrary rule. The text-writers recognize that there is much confusion and doubt in the adjudicated cases bearing on the question. It is conceded that there need not be a return of the consideration where the settlement was induced by fraud, or when it was made at a time when the releasor was suffering great pain, or when he was under the influence of opiates; but it is contended that, where it was made and intended to be made by the parties, a return of the consideration should be made before bringing suit, even though the settlement was the result of á mutual mistake of the parties or of a mistake on the part of the releasor coupled with, fraud on the part of the releasee.

In the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, it was argued that the court erred in entertaining the suit without the plaintiff having made a tender of the amount received in the settlement. The court held that tender was not necessary. It is now claimed that the court based its holding in this respect 'on the ground that the •release was induced by fraud, because the plaintiff only thought he was making a settlement for doctor’s bills, expenses and wages, and did not know that the element of compensation for his injuries entered into the settle- . ment. It is true that this seems to be the reasoning of the court, but it will be remembered that the court also submitted to the jury the question whether the settlement was made under a mistake of fact, that both parties believed the injuries to be slight and temporary, when, in fact, they were serious and permanent, and that the plaintiff was thereby misled into signing the release. The court held that a tender of the consideration of the ■ release before- suing was not necessary, and this was bound to apply to the question • of mistake of fact as well as to the question of fraud in inducing tbe release.

This will be seen to be tbe reasoning of the court in St. Louis, Iron Mountain & Southern Ry. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187. In that cáse it was contended that tbe Hambright case could and should have been decided entirely on the question that the release was obtained by fraud, but the majority of the court based their views upon the decision of the law that, even if the settlement was not fraudulent, it constituted a mistake of fact which absolved the parties from the binding force of the contract. The court then quoted the. syllabus on this phase of the case, and said that it correctly reflects the' substance of the decision.

In the case of St. Louis-San Francisco Ry. Co. v. Cox, 171 Ark. 103, 283 S. W. 31, it was expressly held that, where a passenger was induced to sign a release of liability for personal injuries by a false representation, he is not bound, in this State, to return the sum had before suing to recover the damages sustained, though the injury was received and the release executed in another State, in which he would have been bound to make such return before suing, if his suit had been brought in that State. In that case the injury was received in the State of Missouri, and the settlement was made there. According to the evidence for the plaintiff, the release of liability was secured from her by means of false representations made by a surgeon connected with the railroad hospital, to the effect that her injuries were cured, when in fact they were not; and the court held that, under such a state of facts, the release was not binding, and no return of the consideration was necessary. Attention was called in the opinion to the Hambright case, and it was construed as a case holding that it is not a condition precedent to a maintenance of the action that the consideration for the release be tendered to the defendant before the action is instituted. In the Cox case the court expressly said that, under our decisions, as reviewed in the opinion, a failure to return or make tender of the consideration for the release relates only to the remedy, and is not a matter of substance pertaining to the right of the action itself. Hence it was held that it was not necessary to return the consideration for the execution of the release as a condition precedent to the maintenance of the action. The court said that, in this jurisdiction, the failure of tender is a matter that does not reach to the basis of the right of the action itself, but is connected merely with the remedy.

There can be no difference in principle whether the release was the result of a mutual mistake of the parties or whether it was the result of a mistake on the part of the releasor coupled with fraudulent representations on the part of the releasee that the injuries were temporary, when in fact they were permanent. In each case the releasor signed the release because he relied upon the representations of the physician of the releasee, who told him that his injuries were temporary, when in fact they were permanent. The gist of the matter is that he signed the release believing that his injuries were temporary, when in fact they were permanent, land that he was' induced to do this by the representations of the physician of the releasee stating matters as an existing fact, and not merely as his opinion. No good reason appears to us why there should be any distinction as to the restoration of the consideration in the two classes of eases. The decision in the Cox case is our latest enunciation on the subject, and, from the opinion, appears to have been made after a deliberate review of our former decisions by a judge who has been on the bench during the whole period of time when the subject has come up for consideration, and there does not appear to have been any dissenting voice from the decision. Therefore the decision' in the Cox case will be taken as the rule governing cases of this sort in this State.

Again, it is insisted that there was a ratification of the settlement by the plaintiff because he collected the draft given him by the railroad company in settlement after an X-ray picture had been made and he had ascertained that there had been no union of the bones, and that his injuries were probably permanent. If we are correct in holding that the plaintiff was not required to return the consideration, there would seem to be no useful purpose to be served by him in refraining from collecting the draft. If he was entitled to receive the consideration, he might expend it for any necessary purpose and use it as a credit on his ultimate settlement with the railroad company. This was what the plaintiff said that he did in the present case. According to his testimony, which is not disputed, he expended the full amount of the release and in addition $800 in a vain attempt to secure a union of the bones in his injured leg by operations performed by eminent specialists. Hence we hold this assignment of error was not well taken.

On the subject of the negligence of the defendant but little need be said. In addition to the statutory presumption of negligence arising from the injury having been caused by the operation of one of the defendant’s trains, it may be said that the great weight of the affirmative evidence shows that the injuries were caused by the negligence of the defendant. There was an implied invitation to cross the track resulting from the action of the flagman in failing to raise his stop signal. Chicago, Rock Island & Pacific Ry. Co. v. Hamilton, 92 Ark. 400, 123 S. W. 379; Bush v. Brewer, 136 Ark. 246, 206 S. W. 322; and Mo. Pac. Rd. Co. v. Havens, 164 Ark. 108, 261 S. W. 31.

It is next insisted that the court erred in failing to give an instruction requested by the defendant on contributory negligence. We do not think the court erred in refusing to give the instruction. The Legislature of. 1919 passed an act providing, in substance, that in all suits against railroads for personal injury or death caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of a less degree than the negligence of the employees of the railroad causing the damage complained of; provided, when such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence. Crawford & Moses’ Digest, § 8575. The instructions given by the court on the question of contributory negligence or comparative negligence were in accord with the construction of the statute by this court in Missouri Pacific Rd. Co. v. Robertson, 169 Ark. 957, 278 S. W. 357.

Finally, it is insisted that the judgment should be reversed because the verdict is excessive. We do not agree with counsel in this contention. There was a verdict of $18,500. The plaintiff was forty-four years of age at the time of the accident which caused him to have a fractured thigh bone. He was first carried to' a hospital for about thirty days, and during this time suffered great pain. When the splint was removed from his leg it was found that the bones had not united, and he was compelled to undergo several operations in a vain endeavor to secure a union of the bones of his leg.. This he was unable to do, and his injury appears to be permanent. He lay in a hospital for many months while undergoing these operations, and suffered intense pain. He was a fruit and melon packer, and in that capacity earned $50 a week. He is not able to do that work any more, because it necessitates his standing on his feet. He has expended more than $4,300 in hospital bills and expenses. The great weight of the evidence tends to establish that the defendant was negligent and that the plaintiff was not guilty of contributory negligence.

Under these circumstances we do not think that it can be said that the verdict of the jury was the result of passion or prejudice, and so excessive. We are asked to make a comparison with other cases, and have examined many cases with a view of determining whether or not it is excessive, but no useful purpose could be served by reviewing the cases in this opinion.

Especial reliance is placed on the case of Aluminum Company of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568, where the plaintiff suffered an injury to one of his legs, resulting in amputation and a verdict for $20,000, which was reduced by the court to $12,000. It is true that in that case the yijured person was only twenty-two years of age, while in the present ease the plaintiff is forty-four years old. The earning capacity of Ramsey was $2.40 per day, while Elvins was capable of earning $50 per week as a fruit-packer. Ramsey!s medical bill and hospital fees only amounted to $386.22. Elvins has already spent more than $4,300, and has suffered intense pain throughout a period of many months.

In Boyle-Farrell Land Co. v. Haynes, 161 Ark. 183, 256 S. W. 43, a laborer 35 years old, earning $2.25 a day, sustained permanent injuries by his leg being shortened and its use almost totally impaired, and in addition will continue to suffer pain and be disfigured for life, and a verdict for $18,500 ivas held not to be excessive.

In Zumwalt v. Chicago & A. R. Rd. Co. (Mo.), 266 S. W. 717, the Supreme Court of Missouri upheld a verdict for $18,500-damages for a compound fracture of the leg, which, evidence indicated, might never heal properly.

In Gulf, C. & S. F. Ry. Co. v. Crow (Tex. Civ. App.), 220 S. W. 237, the Court of Civil Appeals of Texas, upheld a verdict for $18,000 to a railroad engineer, where he was thirty-two years of age, the injury consisting of an oblique fracture of the thigh bone resulting in a shortening of the leg.

In Hurst v. Chicago, B. & Q. R. Co., 280 Mo. 566, 219 S. W. 566, 10 A. L. R. 174, the Supreme Court of Missouri held not to be xcessive- a verdict of $15,000 to a railroad conductor for the loss of his leg below the knee by an accident which caused him great pain and suffering, and where his earning capacity was reduced from $150 to $20 per month.

In this connection it may be also stated that the jury may consider to some extent that money today has much less purchasing power than it had twenty or even fifteen years ago. This is a matter of common knowledge to all, of which courts and juries may take judicial notice. On this point see notes to 18 A. L. R. 564, 10 A. L. R. 179, and 3 A. L. R. 610.

We find no prejudicial error in the récord, and the judgment will therefore be affirmed

Smith, J., dissents.-