text:
    Street v. Shull.
    4-2953
    Opinion delivered April 3, 1933.

      Claude V. Holloway and Geo. W. Emerson, for appellant.

      Trimble, Trimble & McCrary, for appellee.
   Butler, J.

On November 8,1930, the appellant, Dr. H. N. Street, brought suit in the court of common pleas in Lonoke County against the appellee, O. L. Shull, to recover for professional services as a physician, the same having been rendered at various times between February 13, 1920, and July 23', 1929. The appellee filed an answer and cross-complaint, in which cross-complaint he alleged that Dr. Street was indebted to him in the sum of $360, the pri.ee of an automobile purchased from him by one Woodall which appellant agreed to pay by deducting from Woodall’s salary (Woodall was then in the doctor’s employ) the sum of $15 twice a month and pay the same to the appellee. He alleged that the doctor was further indebted to him in the sum of $846.54 as expense incurred in removing railroad rails from one location to another, which expense the doctor had agreed to pay.

This cause reached the circuit court, where the appellant demurred to that portion of the cross-complaint relative to the Woodall matter upon the ground that the same was within the statute of frauds and barred by the statute of limitation. The demurrer was never passed upon by the court, and the appellant filed a reply to the cross-complaint denying the alleged agreement for the payment of the automobile, and that appellant had collected any sums from Woodall to be applied to the purchase price thereof, and pleaded in bar the statute of frauds and that of limitation; and as to the claim for removing the railroad equipment he alleged that the same was removed under a contract which limited the recovery to the sum of $1.

On the trial of the case, it developed that the appellant and the appellee at one time had been interested in a short line railroad; that, in addition to appellee’s interest in the railroad, he owned several miles of spur track which led to a sawmill he then owned and operated, and this spur track was used to haul lumber manufactured at the sawmill to the short line railroad. Appellee sold Ms interest in the railroad to the appellant, and agreed that the latter should continue to use the spur track for a time, and that upon the request of appellee the appellant was to take up and move the rails to a certain point on the main line of the Rock Island Railroad. At the time of these transactions a written contract was entered into between the two containing numerous provisions which have no relevancy to this lawsuit except that part which is as follows:

“That said second party agrees to, at the termination of the free use of the above mentioned rails, take up and deliver said rails from the terminus of the rails leased from the C. R. I. & P. R. R. Co. at or near Grlahe’s sawmill to a point at sawmill of said party of the first part known as the Seaton Mill on T. M. Fletcher’s place near the Wat Worthen Railroad Dump, together with all attachments thereto, to said party of the first part, f. o. b. cars, MeCreanor, Arkansas, at second party’s own expense, and, if said second party neglects or fails to-deliver said rails when demand is made therefor by the said first party, his agents or assigns, reserves the right to enter upon said property and take up and remove same at the actual costs and expense of said second party and pay to said first party, by reason of his failure, refusal or neglect to carry out this contract, the sum of $1 as liquidated damages for said refusal or delay.”

Appellee was permitted to testify over the objection of appellant as to the request made that the rails be moved as provided in the contract and the refusal or failure of the appellant to comply therewith, that he was obliged to remove them himself at an expense of $846.54, an itemized statement of which he introduced. Over appellant’s objection appellee was also permitted to testify as to what the mutual understanding between them was regarding the removal of the rails, and that it was their understanding that if he (appellee) was obliged. to move the rails he was to be paid the expense thereof, and if he (the doctor) failed to move the rails the appellee was to be paid $1 in addition to the actual costs; that this was their understanding as to what was meant by the $1 as stipulated damages. Appellee was permitted to testify without objection that he sold an automobile to Ed Woodall, who at the time was working on the railroad which then belonged to Dr. Street, and the latter agreed to pay $30 per month until the automobile had been paid for; that, subsequent to this agreement between the two, Dr. Street informed him that he had collected the price of the automobile from Woodall and that no part of this had been paid to him. He further testified that he was not informed 'by Dr. Street as to his indebtedness on the doctor’s bill until some time in 1927 when the controversy arose between them over some bills owing by the doctor to the appellee, and then it was that mention was made of the doctor’s bill, and the appellee informed the doctor that he was ready to settle with him, but that nothing further was done. He admitted that he owed the doctor the amount sued for, subject to the set-offs, but that the doctor owed him the difference between the amounts he had collected for the automobile and the expense for moving the rails.

Appellant testified denying having made the agreement relative to the Woodall matter or that he had collected any money from Woodall for the appellee on the purchase price of the car. Regarding the written contract, he stated that appellee brought it to him already prepared, and he refused to sign it because the space for the amount of liquidated damages was blank, but that he agreed to sign the contract if that space should be filled in for the sum of $1; that this was done, and he thereupon signed the contract.

The court instructed the jury as follows:

No. 1A. “If you find from the testimony that the parties to the contract agreed that the liquidated damages in removing the rails as mentioned in the contract to be $1, then O. L. Shull would be bound thereby, and your verdict should be for the plaintiff. ’ ’
No. 2A. “The plaintiff in this case is H. N. Street and the defendant is the cross-complainant, O. L. Shull. Shull admits he owes Dr. Street this doctor’s bill, the amount of $304. Dr. Street would be entitled to recover this amount plus interest at the rate of 6 per cent, from July 23,1929, to date. Shull, in his cross-complaint, contends that Dr. Street is indebted to him for more than the amount he admits owing him. If you find that to be true from the evidence in this case, you would strike a balance and subtract the amount of $304 plus interest at the rate of 6 per cent, from July 23, 1929, to date, from the amount you find for Shull, if you do find for him, provided that you find that the debt of Shull’s exceeds that of Dr. Street’s. If you find that this is a binding contract, entered into between these two parties and that the liquidated damages should be only $1, then O. L. Shull would only be entitled to recover $1 and you will deduct that amount from the $304 plus interest thereon.”

The jury was also instructed that it might determine from the testimony in the case as to what was the intention of the parties to the contract, whether, upon the failure of the appellant to remove the rails, the appellee was entitled to be paid for the reasonable expense actually incurred in moving them plus $1 as damages; or whether it was the intention that the entire damages for moving the rails should be limited to $1 only; and that, “in determining whether or not damages were to be limited to the sum of $1, you have a right to take into consideration the testimony given on the part of the cross-complainant and testimony given on the part of the cross-defendant, and also to consider whether or not the sum stipulated appears to be a reasonable compensation for injuries occasioned by the failure of the said cross-defendant, H. N. Street, to perform the contract.”

The court refused, at the request of appellant, to tell the jury to find for the appellee on his cross-complaint in the sum of $1. There was no request made, and the court did not give an instruction on the statute of frauds or that of limitation.

The jury rendered the following verdict: “We, the jury, find for the plaintiff on the cross-complaint in the sum of $486.78.” There was no objection to the form of the verdict, and the court, treating it as a finding* by the jury that appellee was entitled to recover on his cross-complaint the sum of $486.78 in excess of the doctor’s bill.of the appellant admitted to be due, rendered judgment to the effect that the appellant “take nothing by reason of his cause of action, and that cross-plaintiff, O. L. Shull, do have and recover of and from the cross-defendant the sum of $486.78” with interest and costs.

The appellant here contends that the court erred in refusing to sustain his motion to strike parts of appellee ’s cross-complaint and in not sustaining his demurrer to the cross-complaint. Sufficient answer to this contention is that the court did not refuse to strike, nor did it refuse to sustain the demurrer. It failed to make any ruling on the motion or on the demurrer, and, by failing to insist on a ruling and filing his answer, the appellant waived the motion and the demurrer. Pratt v. Frazier, 95 Ark. 408, 129 S. W. 1088; Hill v. McClintock, 175 Ark. 1063, 1 S. W. (2d) 564.

It is next insisted that the court erred in permitting the appellee to testify regarding the expense incurred in moving the rails* and as to his understanding as to the agreement between himself and the appellant regarding the moving of the rails on the ground that this testimony tended to vary the terms of the written contract. We are of the opinion that the contract was sufficiently ambiguous to permit the testimony complained of, and that it did not tend to vary its terms but to clarify and explain them. The contract expressly provides that, should the appellee remove the rails upon the failure of the appellant .to do so after request by the appellee, he was to receive payment of the expense incurred, and, as it is undisputed that the actual cost of moving the rails was more than $800 the sum stipulated is clearly out of all reasonable proportion to the actual expense, and, as it appears uncertain from the contract itself what was in the minds of the parties, the testimony explaining its terms was competent.

There was nothing at the time the contract was made or at any time thereafter, considering the nature of the contract, to make it uncertain or difficult to ascertain what the cost of moving the rails would be. In the instructions given by the court the issue on the amount of recovery under the contract to which objection was made was as favorable to the appellant as he was entitled to. Barr v. Vaughan, 134 Ark. 207, 203 S. W. 589; American Bank & Trust Co. v. Langston, 180 Ark. 652, 22 S. W. (2d) 381; Quaile & Co. v. William Kelley Milling Co., 184 Ark. 722, 43 S. W. (2d) 369.

The court instructed the jury that if they found from the evidence that the appellant had collected from Woodall any money for the appellee he would be entitled to recover whatever that amount was. It is insisted that this instruction, should not have been given because the cross-complaint showed on its face that the claim was barred by the statute of limitation and by the statute of frauds. We have examined the complaint and do not find such to be the case as to the statute of limitation, and, if the evidence justified the conclusion that the appellant’s claim was barred by reason of it, no request wqs made of the court to instruct on that subject. It will be remembered that there was testimony offered without objection to the effect that the Woodall money had been actually collected by the appellant and the complaint would be treated as amended as an action on this branch for money had and received. But it is clear that the jury disregarded the claim on the Woodall transaction, for the amount found by the jury on the cross-complaint is. practically the difference between the cost of removing the rails and the doctor’s bill.

From the record as abstracted and briefed, it is our best judgment that no prejudicial error was committed in the trial of the case. The judgment is therefore affirmed.


source: Caselaw Access Project

author: Johnson, C. J.,

license: Public Domain

text:
    Southern Ice & Utilities Company v. Bryan.
    4-2963
    Opinion delivered April 10, 1933.

      H. B. Means and James D. Head, for appellant.

      John L. McClellan, for appellee.
   Johnson, C. J.,

(after stating the facts). Appellant 'first complains that the trial court erred in permitting a nonexpert witness to testify that her children, after being exposed to ammonia fumes, “were pale and sick.” This question was decided adversely to appellant’s contention in the case of Kansas City Southern Ry. Co. v. Cobb, 118 Ark. 569, 178 S. W. 383, where the court held: “Where one person is acquainted with another, and they come in contact with each other frequently, it is not a matter of expert knowledge for one to tell whether the other appears to be sick or well. These are matters of common experience and observation, and a nonexpert witness, after stating the facts upon which his opinion is based, may even give his opinion in such matters.”

Appellant next complains that the trial court erred in giving certain instructions on behalf of appellee, in refusing to give certain instructions on behalf of appellant, and in modifying certain instructions. The instructions given on behalf of appellee are quoted at length in the statement of facts.

Appellee’s first instruction is a quotation from Ex parte Foote, 70 Ark. 12, 65 S. W. 706. Appellant contends that, notwithstanding the instruction is a correct definition of a nuisance, the same is academic in so far as application to this case is concerned. This is not the fact. A nuisance was the thing complained about, and, of course, it was perfectly proper for the trial court to explain to the jury and give to them a definition of what a nuisance was in law.

Appellee’s instruction No. 2 was likewise a correct declaration of law, and the trial court did not commit error in giving it to the jury.

It is earnestly insisted on behalf of appellant that the trial court assumed in appellee’s instructions that the Bryan property was chiefly valuable for residential property when that was a sharply contested issue. Appellant is mistaken when it says that this was a contested issue in the lawsuit. The uncontradicted testimony shows that appellee and his family were occupying this property and residing thereon long prior to the time that appellant undertook and did establish its ice plant adjacent to his property, and this, notwithstanding it was notified by appellee that he protested its manufacturing plant adjacent to his home.

This court held in Bickley v. Morgan Utilities Company, Incorporated, 173 Ark. 1038, 294 S. W. 38: “ And it may be said here that it matters not how well constructed or conducted an ice plant may be, it is nevertheless a nuisance if built and operated in a residential district so that it destroys the comfort of persons owning and occupying adjoining premises, creating annoyances which render life uncomfortable. Certainly, it cannot be said that the erection and operation of an ice plant within six feet of a bedroom window would not very greatly annoy the persons occupying the room, in addition to the fact, as shown by the proof in this case, that the property itself would be greatly damaged, worth much less than if the ice plant was not operated there.”

The effect of the holding of this court in Bickley v. Morgan Utilities Co., Inc., supra, was that, whosoever undertakes to, and does, establish in a residential section an ice manufacturing plant is responsible as a matter of law for all damages which flow directly from its operation. This was the theory on which the instant case was presented to the jury by the court’s instructions, and we think the court committed no error in so doing.

It is contended by appellant that certain of the instructions are in conflict with each other. To this we cannot agree. We think that when the court’s whole charge is read together it presents the issues of the case concisely, fairly and clearly.

Appellant next complains that the trial court erred in telling the jury that, if they found for the plaintiff, they should award him the difference between the fair market value of his property immediately prior to the erection of the ice plant and its fair market value after the erection and operation of said plant, it being’ contended on behalf of appellant that the correct measure of damag’e in the case was the difference between the rental value of the property prior to the erection of the ice plant and its rental value after the ice plant was erected and in operation.

The case of Junction City Lumber Company v. Sharp, 92 Ark. 538, 123 S. W. 370, is relied upon by appellant as establishing its contention. This case is not authority for appellant’s contention. This court, in the Junction City Lumber Company v. Sharp case, supra, said: “In the case at bar it is not claimed that any injury was caused to the health by the maintenance of a nuisance, etc.”

In the case at bar. the testimony shows that people who occupied appellee’s home were made sick by the ammonia fumes which were permitted to escape from its ice plant. Again, in the Junction City Lumber Company case, supra, the nuisance there complained of was a sawmill in close proximity to Sharp’s home. This court knows that country sawmills are usually temporary in duration. In the instant case, the ice plant is of a permanent character and will probably be maintained much longer than appellee’s dwelling. No intimation appears in this record that appellant expects to occupy its property for only a temporary length of time. On the contrary, the record reflects that its ice plant is a well-built and regulated establishment, and is of a permanent character, and therefore its continued operation will effect a continued injury to appellee and his property. Therefore, we think that the court was correct in giving .this instruction on the measure of appellee’s damage to the jury.

Other contentions are made by the appellant for reversal of the case, but we do not deem them of sufficient importance to discuss in this opinion.

Let the judgment be affirmed.


author: Smith, J.

text:
    Burton v. Drainage District No. 7 of Poinsett County.
    4-2905
    Opinion delivered April 10, 1933.

      C. T. Carpenter, for appellant.

      Chas. D. Frierson, for appellee.
   Smith, J.

Appellants, plaintiffs below, owned 270 acres of land near the mouth of a floodway constructed by Drainage District No. 7 of Poinsett County. The land is on the west bank of the St. Francis Biver, just below the mouth of the floodway. These lands lie within the district, and, to protect them from the waters discharging through the floodway, plans were prepared for improvements, designated as improvements 71, 73 and 74, consisting of a levee along the bank of the river, a ditch, and a Watergate, which a paragraph of the complaint describes.

As a result of impounding the waters of the St. Francis and Little rivers in the reservoir constructed by the drainage district, and of discharging these waters through the floodway, plaintiffs’ lands began to be flooded as soon as the floodway was opened, and they have been flooded every year since. This has resulted in great damage to plaintiffs’ lands.

After the floodway was opened, plaintiff brought suit on November 5, 1923, for damages to his lands. Plaintiff alleged and offered testimony to the effect that a member of the board of directors of the drainage district told him that, if he would dismiss his suit, the board would complete the levees near the Crittenden County line which were planned to protect his lands from the backwater, and would also adjust the assessments on other lands owned by the plaintiff. Later in the same year plaintiff had an oral understanding with the district board to the effect that the board would complete the levees and adjust the assessments, and plaintiff authorized the dismissal of his suit. Thereafter the board had its engineer make a survey of the proposed work and gave plaintiff a contract to perform it. To perform this contract plaintiff purchased a certain 40-acre tract of land, but the board failed to permit plaintiff to proceed with the work, for the reason that the district did not have the money to pay for it. The district took no steps to complete the work, and this suit was filed on June 12, 1929, to recover the same damages sued for in 1923.

The plaintiff was represented in the 1923 suit by L. C. Going, who had also filed a number of other suits against the district. Counsel for the drainage district wrote Mr. Going a letter in which he inquired what suits would be pressed for trial at the ensuing term of the circuit court where all the actions were pending. In answer to this letter, Mr. Going- wrote:

“Tour inquiry of the 24th is at hand, and, in reply to same, beg to say that the cases of W. P. Cooper, J. D. Dubard, Farmers’ & Merchants’ Bank and E. P. Burton against the drainage district will be dismissed at the coming term of the chancery court. I much prefer that they be dismissed at the cost of the defendant, but, if you cannot see your way clear to do this, we will dismiss them at our own costs.
“With reference to the cases of Dr. Baird, Causey, Sloan and Denton, beg to advise that I shall insist on trying these cases. I think the decision in the Sainé case reported in the advance sheet of the Law Reporter on December 24th settles all the cases involving lands within the district. ’ ’

The case Mr. Going referred to as being decisive of the suit of the plaintiff Burton and of certain other plaintiffs is that of Sain v. Cypress Creek Drainage District, 161 Ark. 529, 257 S. W. 49, in which case the opinion was delivered on December 24, 1923.

It is unnecessary to inquire whether Mr. Going was correct in his opinion that certain of his clients — the plaintiff Burton, among others — were barred from recovering damages sued for or not under the Sain case, supra.

The cases referred to by Mr. Going were dismissed on May 12, 1924, at the cost of the drainage district, and the costs were paid by it. The attorney for the drainage district testified that he had no other understanding with Mr. Going except that reflected in the letter from him.

After hearing the testimony recited, the court dismissed the cause of action, and, by way of explanation of that ruling, said: ‘ ‘ The court is of the opinion that the original judgment precluded a pause of action on the original matter, and that, if Burton had any cause of action subsequent to that time, it would have been upon the breach of the contract entered into between him and the district whereby he was to complete the work.”

We concur in this view of the law, and therefore affirm the judgment from which is this appeal.

In 12 C. J., at page 337 of the chapter on Compromise and Settlement, § 33, it is said: “After a valid compromise agreement has been entered into, any subsequent remedy of the parties, with reference to the matters included therein must be based on the agreement, it operating as a merger and bar of all included claims and preexisting causes of action, and it is not necessary that the compromise shall have been performed.” Many'cases are cited in the note to the text quoted.

Plaintiffs below, appellants here, cite and rely upon the case of Prothro v. Williams, 147 Ark. 535, 229 S. W. 38, as authorizing this suit. In that case the owner of property in an improvement district had delayed having her damages assessed, as provided by statute, until after the expiration of the time limited by law for that purpose, but it was there held by a majority of the court that the limitations of the statute (as said in a headnote in that case), “as to the time in which a landowner may make complaint of assessment of benefits or damages in a drainage district, were not intended to deprive a property owner of the right to complain of such assessments where she was led into not making such complaint by the conduct of the commissioners of the district causing her to believe that the route of the ditch would be changed.” The controlling thought in that case was that the commissioners of the district had misled the plaintiff to an extent that amounted to a fraud upon her, in that she had relied upon their representations as to the permanent location of the ditch and had been deceived thereby, and that, as the commissioners had the power to alter the location of a ditch at any time before constructing the work, even after a judgment of the county court had been rendered confirming the assessment of benefits, the property owner in the district was not barred from suing for damages resulting from the location of the ditch at a particular place, where they were representing to the property owner that it would be located elsewhere.

In the instant case there is no allegation of fraud in the pleading, nor proof thereof in the plaintiff’s testimony, nor argument to that effect in the plaintiff’s brief. It is insisted that the district did not permit the performance of the contract under which the plaintiff had dismissed his suit, for the reason that the district ran out of money. Yet no action was taken by the plaintiff until 1929, when the right to sue upon this oral contract was barred.

It may be said, in this connection, that it is the contention of the drainag-e district that the suit was dismissed without'any condition not expressed in Mr. Going’s letter, and, for the reason there stated, to-wit, that the Sain case, supra was a bar to the original suit.

Counsel for the drainage district assign other reasons for the affirmance of the judgment appealed from which we do not discuss, as we think the reason assigned by the court for the conclusion reached is valid, and of itself sufficiently supports the judgment rendered. The judgment must therefore be affirmed, and it is so ordered.


text:
    Chicago, Rock Island & Pacific Railway Company v. Wooldridge.
    4-2942
    Opinion delivered April 10, 1933.

      Geo. B. Pugh and Thos. S. Buzbee, for appellant.

      Caviness & George, John P. Roberts and Evans & Evans, for appellee.
   Smith, J.

Appellee, the plaintiff below, recovered a judgment for personal injuries and for damages to his automobile upon testimony substantially as follows. On November 9, 1931, at about 6 or 6:15 o’clock p. m., the plaintiff was driving west in his automobile over State Highway No. 10 from Danville to Booneville. At a point on the highway about a mile and a half west of Way eland, he was compelled to pass under the defendant’s railway track by driving his car through and between pillars or piers extending from the ground in the middle of and on each side of highway No. 10 upwards to the defendant’s railway track; in other words, throiigh an underpass. A plat was offered in evidence showing the highway, the railroad, and a creek which it crossed on a 14-panel pile trestle. These panels, which support the railroad trestle or bridge, were twenty feet wide, and the witnesses placed the distance between-these panels at from six to twelve feet. The railroad there runs nearly east and west, and the highway runs north and south, running under the railroad at a right angle. This road is divided by one of these piers. The travel west usually goes to the right of this dividing pier, and that to the east is on the left, but there is some use of the right side of the road by eastbound travelers and traffic. The highway south of the railroad makes a left turn as it runs through the underpass, and a right turn as it leaves it. The curve on the south side is sharper than that on the north. Some of the witnesses speak of the curve which plaintiff followed as he approached the railroad as a right-angle curve, but the plat referred to, which was offered in evidence by the railroad company, and two pictures, which were offered in evidence by the plaintiff, show that it is not a right-angle curve, although it is a sharp one.

The pictures show that the outside piling of each of three piers is painted with stripes resembling large barber poles. These are the piers east of the road, west of the road and the pier in the center of the road. The preponderance of the testimony is to the effect that this piling had been painted before plaintiff sustained his injury, but there was testimony that the piling had been painted subsequent to that occasion, and the jury evidently accepted that version. There was testimony to the effect that there were three warning signs along the highway south of the railroad, the one nearest thereto reading: “STOP, SOUND TOUR HORN”; but testimony was offered on behalf of the plaintiff to the effect that only one of these signs was present when plaintiff was injured, and that this was so located that the curving road kept the lights of the car from shining thereon and rendering it visible after dark. There were no lights on the bridge. The Highway Department had worked this road a few days before plaintiff’s injury, and, in so doing, had scattered loose gravel at the point of the curve.

Plaintiff testified that his car had good lights and good brakes, and that he was driving 25 to 30 miles per hour, and that he had “made all of the curve excepting just a little bit, when I turned the car down the side of the underpass.” He did this because the piers presented to him the appearance of a solid wall into which he was about to drive. He did not run into any of the piling which are now painted, but ran off the highway about 8 or 10 feet before he got to the underpass. He stated that he “did not strike the center pillar, nor the next one, nor the next one, but it was the third pillar down in the branch that I struck.”

At the point of the curve on the left side of the road there was a railing erected by the Highway Department to prevent speeding cars from running off the road. Plaintiff did not run into this railing, 'but after driving beyond it, turned to the left, leaving the road in so doing, and ran into the creek.

Nicholson, a witness for the plaintiff, testified that he lived about 200‘ feet west of the highway and south of the underpass, and was standing on his front porch when plaintiff drove by his house. Plaintiff was driving “something like 30 miles an hour. He did not slow down until he got, I would say, 20 or 30 feet from the underpass. I heard his wheels skid and he went on over the dump.”

Vaughan, a witness for the plaintiff, testified that he lived about 90 yards from the underpass on the north side of the railroad, and that when he reached the plaintiff the latter said, “I thought I was going right into a solid wall, and gave a turn, ’ ’ and then his car slid in the gravel, and he lost control of it. The car was running, according to this witness, “ 30 to 35 mpLes per hour, ’ ’ and he stated that “the highway man had just put that gravel in a day or two before, and it was banked in there a right smart.” This witness further stated that, according to measurements which he made on the following day, the middle pier was 17 or 18 feet from the outside of the track of the plaintiff’s car, in other words, instead of going through the underpass to the right of the middle pier, plaintiff turned off or skidded off before reaching it and ran a distance of 4 piers into the bridge. ■

A Mrs. Weatherall, testifying on behalf of the defendant, stated that she was in her home, 300 yards north of the underpass on the opposite side of the railroad, and she and her husband heard from that distance the noise of the impact as plaintiff’s car struck the pier. She and her husband went at once over to the scene of the collision, and she said, as they reached plaintiff’s car, “He was going quite a speed,” and the plaintiff answered, “Yes, mam, around 40.”

The negligence charged as constituting plaintiff’s cause of action is that the railway company “had failed to build, erect and maintain a reasonably safe crossing or underpass across or under its line of railway on highway No. 10 at said point west of Waveland, Arkansas.”

The court charged the jury, without objection on the-part of the plaintiff, that the railway company was under no duty to maintain lights at the underpass, and gave other instructions defining- the duty of the railway company to maintain a safe crossing.

The railway company insists that no negligence on its part was shown, as it had no control of the location of the highway leading to its right-of-way, the route of the road having been recently relocated by the State Highway Department, and that it was an employee of the Highway Department, and not its own employee, who had so recently placed the gravel in the road where plaintiff’s car skidded.

Without further recital of the testimony, and assuming, without deciding, that the defendant railway company was negligent in the particulars alleged, it appears more certain that the plaintiff was guilty of contributory negligence, and that'this negligence was the cause of his injury. He knew he was approaching a railroad, although he had driven through this underpass on only one previous occasion and did not remember how the road divided. The railing on the left of the road was a warning that there was a curve and the consequent danger of rounding it too rapidly, even 'though the signs did not convey the information, either by not being seen or by not being present. Plaintiff must have known that he was on a curving road as he approached the underpass, yet he did not reduce his speed until he struck the gravel. Whatever the exact distance may have been between the panels or piers of the bridge, that space was half the width of the road, less the space occupied by the piling constituting the middle pier, and this space was ample for one to have driven through safely while exercising ordinary care. The road was level on both sides of the railroad track. When plaintiff became confused about the road he should have put his car in control, but he drove on with a carelessness which appears to us nothing short of recklessness.

The court should therefore have charged the jury, as a matter of law, that plaintiff’s right to recover was barred by bis own contributory negligence, and, for this error, the judgment must be reversed, and, as the cause appears to have been fully developed, it will be dismissed.


text:
    Fowlkes v. Central Supply Company.
    4-2965
    Opinion delivered April 10, 1933.

      H. A. Midyett and Tom W. Campbell, for appellant.

      Barber & Henry, for appellee.
   Smith, J.

On July 24,1931, the Central Supply Company filed suit on an account against B. M. Fowlkes in a justice of the peace court for Jefferson Township, in White County, and on September 2, 1931, .judgment was rendered therein in favor of Fowlkes. The plaintiff prayed and perfected an appeal to the circuit court, and at the January, 1932, term thereof entered a nonsuit “without prejudice to the right of bringing another suit.”' On February 4,1932, the supply company filed a new suit on the same cause of action in the White Circuit Court, to which suit the defendant pleaded the justice judgment in bar. This plea was overruled at the July, 1932, term of the circuit court, and judgment was rendered for the plaintiff for the amount sued for, from which is this appeal.

For the affirmance of this judgment, appellee says: “The sole question at issue is whether a nonsuit without prejudice is tantamount to a dismissal of an appeal so as to leave a judgment of a justice court still in full force and effect.”

The case of Brenard Mfg. Co. v. Pate, 178 Ark. 163, 10 S. W. (2d) 489, is decisive of this question and of this case. It was there held, to quote a headnote, that, “Where a justice of the peace, in actions on certain notes, rendered judgments in favor of the defendant, and on appeal to the circuit court a nonsuit was taken by the plaintiff, the judgments were properly held to be res judicata in a second action on the same notes. ’ ’

The attempt is made to distinguish the instant case from the Brenard case, supra, upon the ground that the instant case was dismissed without prejudice to the right to bring another suit, whereas the appeal in the Brenard case was dismissed unconditionally. This ’ distinction is not, however, of controlling importance.

It was said in the Brenard case that judgments of justices of the peace adjudicating the rights of parties to causes over which they have jurisdiction are effective and valid until set aside in some manner provided by law. Their enforcement may be suspended by appeals to. the circuit court,' provided bonds for that purpose are given as required by law, but the judgments remain effective and decisive of the question adjudicated, notwithstanding the appeal, until they are reversed or set aside.

Now, if a.justice judgment, is a valid adjudication of a question within the jurisdiction of the justice court, it becomes final and conclusive of the question adjudicated, unless an appeal be taken within thirty days after the judgment was rendered, and the appeal must be taken within that time, and not thereafter. ‘Section 6513, Crawford & Moses’ Digest. Here an appeal was taken within the time limited, but that appeal was dismissed. It is true that appellee announced that this action was taken without prejudice to its right to bring another suit. But this condition was ineffective. It had no right to impose a condition, for the reason that it contravened the provisions of the statute in regard to appeals from judgments rendered in justice courts. The plaintiff could not disregard the judgment of the .justice of the peace as it attempted to do. The judgment was in force as an adjudication of the question in issue, and the plaintiff could not set this judgment aside and render it ineffective by bringing another suit. The right to sue and enforce payment of the demand upon which the suit was based had been adjudicated, and the remedy provided by law to review this judgment was by an appeal to the circuit court within thirty days after the judgment was rendered, and not thereafter.

More than thirty days after the rendition of the judgment the appeal was dismissed, and the plaintiff’s attempt to reserve a right not permitted by law was abortive. The appeal having been dismissed, and the thirty days having expired within which to appeal, the .justice judgment became conclusive of the issue in the case, and the plea of res judicata should have been sustained.

Appellee insists that it had the right to abandon its appeal from the judgment of the justice of the peace and to take a nonsuit without prejudice to a future action under § 1201, Crawford & Moses’ Digest, which provides that an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. But this section has no application to suits reaching the circuit court on appeal from justice courts. It defines the practice in circuit and chancery courts and relates to suits brought in those courts. Here, before the nonsuit was taken, there had been a final submission of the cause to a court having .jurisdiction thereof, and that jurisdiction had been exercised and a judgment rendered which determined the rights of the parties thereto. An appeal to the circuit court was the remedy provided by law for the review of the justice judgment, where, upon a trial in the circuit court, the cause would have been heard de novo. There was neither necessity nor authority to bring a new suit to obtain this de novo trial, and the judgment of the circuit court, from which this appeal comes, must he reversed; aud, as the cause of action upon which the judgment was rendered was concluded by the judgment of the justice court, the suit will be dismissed. It is so ordered.


author: Kirby, J.

text:
    Fee v. Taylor.
    4-2960
    Opinion delivered April 10, 1933.

      Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Golden & Golden and Williamson & Williamson, for appellee.
   Kirby, J.

This appeal comes from a judgment against appellants, stockholders in the Bank of Dermott, insolvent, for $200 each in three cases brought by the Bank Commissioner to enforce payment of the double assessment upon bank stock owned by appellants, the eases being consolidated for a hearing in the circuit court.

The insolvency of the bank was alleged, and that it was taken over by the Bank Commissioner for liquidation, who, after ascertaining the necessity therefor, levied a hundred per cent, assessment against the stockholders of said bank. That the assessment was duly levied against each of the defendants in this action, and notice thereof given to them as provided by law. That each defendant was at the time the holder and owner of stock in the bank of the par value of $200. That due demand had been made upon each of the defendants for the payment of their respective assessments, and each had failed and refused to pay any part thereof.

Each defendant answered, denying every material allegation of the complaint, and alleged that the proceedings of the Bank Commissioner were by collusion and fraud, and the approval of the sale of the assets was with a view to liquidate the assets of the bank without the supervision of the Bank Commissioner and without any remedy to the defendants, the plan being carried out according to the orders of the chancery court. That the proceedings in the chancery court were not instituted with a bona fide purpose of liquidating the bank, “but for the collusive purpose of enabling certain stockholders of Dermott State Bank to liquidate the assets of Bank of Dermott to the detriment of the defendant.” That defendant had had no. day in court and no opportunity to protect himself against unlawful and improper liquidation of the assets of the bank, and, if required to pay the assessment, would be deprived of his property without due process of law.

The testimony of the assistant bank commissioner, who had also had to take over the Exchange Bank & Trust Company for liquidation, the concern to which the assets, etc., of the failed Bank of Dermott were sold, showed that the assets of the Bank of Dermott, including the stock assessments, would fall short and lack by some $16,000 of being sufficient to pay all the liabilities of the Bank of Dermott that were assumed by the Exchange Bank & Trust Company.

These suits were brought by the Bank Commissioner to enfoi'ce the collection of the double stock assessment against the appellants as stockholders of the failed bank, which was in liquidation by the Bank Commissioner, and there is no allegation that the assets of the bank, including the assessments of stock even, were sufficient to pay its liabilities. The testimony showed that all the assets were insufficient to pay all the liabilities of said Bank of Dermott assumed by the Exchange Bank & Trust Company, which also failed and went into liquidation.

This court has already held that the necessity for the levy and call of stock assessments is conclusive as to the necessity for the call and the amount to be assessed in an action to enforce that liability against the stockholders. In White v. Taylor, ante p. 1, a case where, on the suit for his assessment, the stockholder insisted upon a transfer of his cause to equity that he might show that the old bank was not really insolvent, and that, if certain of its property wrongfully transferred to others could be recovered, it was sufficient to pay all the liability of the bank without any stock assessments, the court said:

“But, however this may be, this action is not the proper one to try the question of fraud or insolvency. Necessity for the levy and call of the stockholder’s assessment by the Bank Commissioner was discussed at length in Davis v. Moore, 130 Ark. 128, 197 S. W. 295, where the court held that the action of the Bank Commissioner in making the assessment of liability of individual stockholders is conclusive in an action to inforce that liability. It was also said in Poch v. Taylor, 186 Ark. 618, 54 S. W. (2d) 994: ‘In any event, it is definitely settled that the action of the Bank Commissioner in levying an assessment against the stockholders is conclusive as to the necessity for the call and the amount to be assessed against the stockholders. Davis v. Moore, 130 Ark. 128, 197 S. W. 295; Aber v. Maxwell, 140 Ark. 203, 215 S. W. 389.’ The language of the section of the statute relating to assessments was copied from the National Banking Act, which had been construed by the United States Supreme Court prior to the-enactment of our statute, and such construction was necessarily adopted with it. The Supreme Court of the United States said in Casey v. Galli, 94 U. S. 680, 24 L. ed. 307, that the comptroller’s order that each stockholder should pay to the receiver the par of his stock cannot be controverted in a suit against the stockholder, saying: ‘It is conclusive upon him and makes it his duty to pay. What may be done or intended with respect to other stockholders is immaterial in his case.’ The appellant could not question in the suit for the collection of the assessment either the necessity therefor or the right of the Bank 'Commissioner to levy same, and the chancery court could have no jurisdiction of this cause therefore.”

It was also said there relative to the question of such stockholder’s assessment being assignable :_

“We see no reason why the Bank Commissioner, after the assessment of the stockholder’s liability had been made, could not transfer and assign the claims therefor the same as he could any of the other assets of the bank in final settlement of its affairs, and certainly the purchaser of such assets of the bank, including the stockholders’ assessments already made, would have the right to use the name of the Bank Commissioner in inforcing the liability, if necessary. Waldron v. Alling, 73 App. Div. 86, 78 N. Y. Supp. 251.”

The stockholder cannot question in a suit for the collection of the assessment either the necessity therefor or the right of the Bank Commissioner to levy same, and the court did not err in so holding, and it being shown that the assets of the failed bank, of which appellants were stockholders, were insufficient, even including the stockholders’ assessments, to pay the liabilities of the insolvent institution, and appellants could have no cause of action, in any event, to recover any part of their stock assessments that might not have been required to pay all the liabilities of the insolvent bank, there being none even if they had been entitled to a portion of their stock assessments remaining over after the liquidation of the bank and the payment of all its liabilities, since none was left over.

The assessment of which the stockholders had due notice as the statute requires, did not violate the due process clause of the Federal Constitution. The liability was incurred by the stockholder, upon his acquiring the stock, as provided by the statute, and “the remedy of the stockholders for an unnecessary or an excessive call is in the chancery court, which supervises the proceedings of the State Bank Commissioner and allow claims and makes final distribution of the-assets.” Aber v. Maxwell, supra.

We find no error in the record, and the judgment is affirmed.


author: Mehaffy, J.

text:
    Benton v. Thompson.
    4-2961
    Opinion delivered April 10, 1933.

      Trimble, Trimble & McCrary, for appellant.

      John R. Thompson, for appellee.
   Mehaffy, J.

John R. Thompson, as a resident, citizen and taxpayer of Lonoke County, Arkansas, brought this suit for the use and benefit of Lonoke County.

R. O. Benton, the appellant, is the regularly elected, qualified and acting sheriff of Lonoke County, Arkansas.

It was alleged in the complaint that the appellant was justly indebted to the county of Lonoke in the sum of $6,300, the same being occasioned as follows:

Act 173 of the Special Acts of the General Assembly of the State of Arkansas for the year 1919 fixed the salary of the sheriff of Lonoke County at the sum of $4,000 per year, and required that out of said sum the sheriff of said county should pay all his deputy hire; that this act is the law at this time, and has been such at all times mentioned in the complaint; that in the year 1927 the sheriff of Lonoke County drew from the county $5,200, and a like sum for the years of 1928, 1929, and 1930 as his salary and to pay deputy hire, which was $2,200 more than was allowed him under the act above mentioned; that the sheriff based his right to draw this money upon act 90 of the Acts of 1927, which only affected Lonoke County and its officers, and was unconstitutional and void; that the appellant was, at the expiration of 1930, indebted to the general fund of Lonoke County in the sum of $4,800; that in the year 1931 the appellant drew from the county general fund the sum of $5,200 as his salary and to pay deputy hire, which was $1,200 more than he was entitled to under the act of 1919; and for the first quarter of 1932 appellant drew $1,250 for his salary and deputy hire, which was $300 more than he was entitled to under the law; that appellant had rendered his accounts and settled with the county court at each regular session, and his settlements were approved and confirmed; that the settlements were made under act 90 of 1927, which was void, and the settlements were approved by the court through error as to the law.

Appellant filed a demurrer stating first that the complaint does not state facts sufficient to constitute a cause of action, and, second, that the court has no jurisdiction of the subject-matter.

The court sustained the demurrer to the amounts collected by the sheriff to the date of March 16, 1931, but overruled the demurrer as to the amounts sued for which were collected since March 16, 1931. The court dismissed appellee’s complaint as to all amounts collected prior to March 26, 1931, and entered judgment against appellant for $1,500, the amount due since March 16, 1931. Each party prayed an appeal to this court, which was granted.

It is the contention of the appellant that the circuit court had no jurisdiction because under the Constitution and statutes the county court had exclusive original jurisdiction.

Article 7, § 28, of the Constitution reads as follows:

“The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes; and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided.’’

Section 2279 of Crawford & Moses’ Digest also defines the jurisdiction of the county courts.

If this suit involved a matter relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, or if it related to the necessary internal improvements, then the county court would have exclusive original jurisdiction.

In the case of State, use of Izard County v. Hinkle, 37 Ark. 539, it was held that to treat the orders of .allowance by the county court as null and void would be going a length which this court has never sanctioned, and that there was no necessity for it because of the other remedies provided, that is, appeal to the circuit court from the judgment of allowance, quashing the judgment on certiorari, and the power of the county court to call in outstanding warrants, or opening the allowance or order in chancery for fraud, or mistake.

But the court in the Hinkle case said there was further trouble; that the complaint alleged the allowance of the claim and ordered warrants to be issued, but that it did not allege that any of these warrants were paid by the treasurer, or that the appellee obtained any money upon them.

In the instant case it is alleged that the appellant drew the sums of money mentioned as received in violation of law. The allegation is that he received the money, and this is a suit to collect the money wrongfully received, and does not come within the jurisdiction of the county court wherein it is given original exclusive jurisdiction in certain matters. None of the matters mentioned in § 28 of article 7 of the Constitution are involved in this suit, and the exclusive jurisdiction is not by the Constitution vested in the county court in matters of this kind.

Section 11 of article 7 of the Constitution provides:

“The circuit court shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction which may not be vested in some other court provided for by this Constitution.”

The Hinkle case, supra, involved the settlements of the sheriff, and involved county taxes. This suit does not involve any subject mentioned in the constitutional provision giving county courts exclusive original jurisdiction.

In the case of Carroll County v. State, 95 Ark. 194, 128 S. W. 1042, the court said, after quoting the constitutional provision with reference to jurisdiction of county courts: “The subject-matter of this action is not embraced in the jurisdiction of county courts as thus defined by the Constitution. The sum sued for is not taxes; nor is the action brought to enforce a settlement by a revenue officer of the taxes in his hands. * * * If the sum sued for had ever been county taxes, it ceased to be such when it was paid into the county treasury, as a debt would cease to be a debt when it is paid. It is a sum due for money loaned, accrued interest, is a demand in favor of the county, and is not due for taxes.”

In the instant case it is simply a suit for a debt due the county. There is no claim that there was any mistake or fraud in the sheriff’s settlement.

Act 173 of the Acts of 1919 is a valid law. It is local, applying to Lonoke County only, but it was enacted prior to the adoption of the constitutional provision prohibiting local legislation by the Legislature.

Act 90 of the Acts of 1927 was void because it was a local act, amending act 173 of 1919, and was passed after the adoption of the amendment to the Constitution prohibiting local legislation.

This court has held that, while the Legislature may repeal a local act, or may repeal a portion of it, it cannot amend a local act. The Act of 1927 was therefore void. Cannon v. May, 183 Ark. 107, 35 S. W. (2d) 70.

County courts, like probate courts, have only such special and limited jurisdiction as is conferred upon them by the Constitution and statutes and can only exercise the powers expressly granted or necessarily incident thereto. Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39; Moss v. Moose, 184 Ark. 798, 44 S. W. (2d) 825; Huff v. Hot Springs Savings Trust & Guaranty Company, 185 Ark. 20, 45 S. W. (2d) 508.

Having reached the conclusion that the act of 1927 is void, appellant was entitled to receive fees under act 173 of 1919, and any fees received by him in excess of the fees allowed by said act were in violation of law.

The appellee prosecutes a cross-appeal.

A majority of the court is of the opinion, with which the writer does not agree, that act 218 of the Acts of 1931, being a general act, relieves the sheriff of Lonoke County from paying back money wrongfully received up to the date of the passage of said act.

It follows from what we have said that the judgment must be affirmed, both on appeal and cross-appeal. It is so ordered.

Justices Smith, McHaney and Butler, dissent.


text:
    Jordan v. Winooski Savings Bank.
    4-2969
    Opinion delivered April 10, 1933.

      Claude M. Cruce and A. L. Rotenberry, for appellant.

      S. Lasker Ehrman and John M. Lofton, Jr., for appellee.
   Mehaffy, J.

The appellant filed complaint- in the St. Francis Chancery Court alleging that the appellee, Winooski Savings Bank, was a nonresident, and owned certain lands which were described in the complaint; that on or about December 15, 1931, said bank, for a valuable and good consideration, executed and delivered to appellant a certain oil and gas lease upon the lands described, and that appellant is entitled to all of the benefits, rights, title and interest accruing under said oil and gas lease; that Grover T. Owens, agent of the bank, called appellant into his office and prevailed upon him to turn over said lease for the purpose of examination, and refused to return said contract to appellant; that said lease had not been recorded, and that, unless restrained, the appellees would destroy, or put beyond the control or possession of appellant, the lease contract; that the appellees now hold said contract, and that they should he required to deposit the same in the registry of the court, pending final disposition of the cause. Appellant stated further that he had expended and would expend the sum of $500 as attorney’s fees and necessary court costs incident to the trial, and that the same was occasioned by the wilful and malicious acts of the appellee hank and its attorneys and agents.

Appellant filed as Exhibit A the lease contract, which was an ordinary oil and gas lease. The lease is quite lengthy, and it would serve no useful purpose to copy it here.

The appellees filed answer, admitting that the Winooski Savings Bank was the owner of the lands described, but denied that the bank executed and delivered to the appellant the oil and gas lease, and denied that Grover Owens called the appellant to his office and under pretext of examining said lease, prevailed upon plaintiff to turn over said lease, and denied the other material allegations in the complaint.

The answer alleged that appellant represented to the attorneys for the bank that he was associated with financial interests who proposed to make an immediate and thorough test for oil and gas, and they could not spend the money incident thereto unless they were assured that the acreage surrounding* the said proposed well should be blocked up in its entirety; that, if he and his associates could secure a lease on the lands described, they would be justified in making an exhaustive test; that they had $10,000 available with which to begin drilling operations; that when appellant agreed that, if the bank would execute the lease, he and his associates would enter into an agreement whereby the said lease should be placed in escrow in the Bankers’ Trust Company in Little Rock, Arkansas, pending commercial production of gas and oil, and with the further agreement that, if appellant and his, associates should abandon drilling operations for a period in excess of 120 days, the escrow agent should deliver the lease to the lessor for destruction; that the bank refused to enter into the lease unless this agreement was made, and the lease placed in escrow; that appellant agreed with the bank that it should execute a lease on those terms, and that the lease should be held in escrow under the conditions set forth. Appellees further stated in their answer that, acting on the representation of appellant, it executed an oil and gas lease on the lands described, and mailed it to Owens & Ehrman; that an escrow agreement was prepared by Owens & Ehrman, and submitted to the appellant, who stated that he desired the approval thereof by his associates before executing the same; appellant stated that, unless he could secure the lease for exhibition to adjacent landowners, he would be unable to secure the acreage desired; that appellant said, if they would permit him to have custody of said lease, he would exhibit the same to the adjacent landowners, secure their leases, and return the lease executed by the bank; that the lease was never delivered to plaintiff. They further stated in the answer that the appellant and his associates were not in position to make the test they claimed, and did not have $10,000 cash; that the appellant had not complied with the conditions and representations under which the lease contract was executed.

The case was heard by the court on the pleadings with their exhibits and oral testimony, and the court dismissed the complaint for want of equity, and adjudged costs against the appellant. The case is here on appeal.

The appellant testified that on April 12, 1932, Mr. Owens called him, stating he would like to have a conference with him the next day, and they met at Owens ’ office. The question arose as to the rental on the lease, and appellant told Owens that he had paid the rental to Mr. Bricker, and exhibited a receipt from Bricker; that Owens asked him to let him see the lease, and he handed it to him, and Owens refused to return it; that he paid Mr. Bricker $10 and Mr. Bricker gave him a receipt. He testified that he did not admit anything about an escrow agreement; that he made no admissions at all; that he took a copy of this lease and showed it to persons, inclosing the acreage contract. Appellant testified that nothing was said about an escrow agreement or any other conditions or agreements; that he did not have the lease recorded because Mr. Bricker asked him not to do so at that time, but the main reason he did not have it recorded was.that other people would come in and see the lease on record and would make an effort to block the lease. He testified that he did not 'know that Mr. Bricker was not a member of the firm of Owens & Ehrman, and did not make any inquiry about the matter, but that Mr. Bricker said he represented the Winooski Savings Bank; that he did not know whether he represented the firm or the bank; that he was not present when the escrow agreement was dictated, and nothing was ever said to him about any escrow agreement. The lease was turned over to him. according to agreement; he told Mr. Bricker that other associates and himself had $10,000 to drill the well.

Bricker testified that the appellant came to him about the lease and that he told appellant that everything about the sale of real estate or interest therein would have to be referred to the bank;' that the instructions from the bank were that we could not give a lease unless we knew that actual continuous activity toward commercial production of oil and gas could be had; the lease was to be placed in escrow; that he had this agreement with appellant. When the lease came from the bank, witness called appellant, who came to his office, and at that time witness asked him to execute the escrow agreement. Appellant said he wanted the lease to show adjoining landowners ; witness told him at that time that the lease was supposed to be placed in escrow, and that he could not deliver it to him, but that appellant prevailed upon him to deliver it to appellant for the purpose of exhibition only; that appellant did not bring the lease back; the lease was never delivered to him, but was loaned to him; escrow agreement was never executed; appellant was to sign that when he brought the lease back; witness was present when Owens asked appelant for the custody of the lease, and appellant handed it to him; the escrow agreement was dictated the same day that witness handed appellant the lease; he said he would sign it when he brought the lease back.

Several letters were introduced, and the escrow agreement which was never signed by appelant.

Grover T. Owens testified that he talked with the appellant and that appellant explained to him that he had agreed with Bricker that there was to be executed an escrow agreement, and that the lease was to be delivered to the Bankers’ Trust Company and held in escrow; that he refused to deliver the lease back to appellant.

Receipt for $10, covering rental on the lease, signed by Bricker, was introduced.

It is conceded that the testimony with reference to the delivery of the lease to the appellant is in conflict but it is contended that the testimony introduced by appellees is incompetent, first, because the lease itself is complete, and bears no conditions or provisions whatever relating to any other conditions or provisions outside of those expressed in the lease itself, and it was duly executed by the bank; second, that appellant has complied on his part with all the conditions of the.lease, and holds documentary evidence signed by the agent of appellees.

The rule is well established that oral testimony cannot be admitted for the purpose of varying or contradicting the terms of a written contract, but, according to the appellees’ testimony in this case, this lease was not to be effective until the escrow agreement was signed, and the lease itself was to be deposited in escrow with the Bankers’ Trust Company. If this testimony was true, then there was no contract made, because the escrow agreement was never signed, and the lease was not deposited.

The testimony of appellees was clearly admissible, not as contradicting a written contract, but to show that no contract was ever made. There was no evidence Atroduced or offered by appellee that in any way varied or contradicted the terms of the written contract. The effect of their testimony is that the lease was to be deposited in escrow, and that it never was delivered, but loaned to appellant for the purpose of exhibiting it to others, and, as to whether a contract was made or not was a question of fact to be determined by the chancellor. New Home Sewing Machine Co. v. Westmoreland, 183 Ark. 769, 38 S. W. (2d) 314. The rule that parol evidence is not allowed to contradict or vary a written instrument, is only applied where the parol evidence tends to vary or contradict the language used in the instrument. Kerby v. Feild, 183 Ark. 714, 38 S. W. (2d) 308.

The contention here on the part of the appellees, and the evidencé introduced by them, is that the lease was never délivered, and not that any of the terms of the lease were other than stated in the lease. • The evidence does not tend to vary or contradict the terms of the lease. It is contended, however, by the appellant, that he complied with the terms of the lease and paid Bricher $10 in compliance with the terms of the lease, and that Bricker gave him a receipt for the money. Bricher testified that he gave the appellant the receipt, but that appellant did not pay him the $10, that he never paid him anything.

The appellant introduced a copy of the lease which he relies on. One of the provisions of the lease reads as follows: “If no well be commenced on said land on or before the 15th day of February, 1932, this lease shall terminate as to both parties, unless the lessee, on or before that date, shall pay. or tender to the lessor, or to the lessor’s credit in the Bankers’ Trust Company of Little Rock, Arkansas, or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of ten ($10) dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well, for twelve months from said date.”

There is no evidence in the record tending to show that Bricker- was authorized to receive the rental, but the contract relied on by appellant expressly states that it must either be paid to the lessor, or to the lessor’s credit in the Bankers’ Trust Company. Appellant does not claim that either was done. There is no evidence that Bricker was the agent of the bank to receive the money, or for any other purpose. The only testimony offered by the appellant as to Bricker’s agency is that Bricker said he represented the bank.

It is well established that you can neither prove agency nor the extent of an agent’s authority by his declarations or actions, and his written statements or admissions are as objectionable as his oral ones, and his letters, telegrams and other writings cannot be used as evidence of his agency. His actions and statements cannot be made use of against the principal until the fact of the agency has been shown by other evidence. American Southern Trust Co. v. McKee, 173 Ark. 147, 293 S. W. 50.

Whether the lease was delivered, and whether there was to be an escrow agreement deposited with the lease in the Bankers’ Trust Company, and all other questions involved in this suit, are questions of fact. The chancellor found in favor of the appellees on the facts, and the findings of the chancellor are not against the preponderance of the evidence.

The decree is therefore affirmed.


author: Butler, J.

text:
    DeQueen & Eastern Railroad Company v. Dye.
    4-2897
    Opinion delivered April 10, 1933.

      Abe Collins, Lake, Lake & Carlton and John S. Kirkpatrick, for appellant.

      S. P. Jones, Franklin Jones, B. E. Isbell and Percy Woodard, for appellee.
   Butler, J.

The appellee is an experienced brakeman and was in the employ of the appellant railroad company on the 30th day of April, 1931, when he was injured while engaged in setting a brake on one of appellant’s railway cars. He brought suit to recover damages for the injury, and for his cause of action alleged a violation of the National Safety Appliance Law in that the appellant failed to equip the car with efficient hand brakes, and that the defective condition of the brake furnished caused him to fall and sustain the injury.

The trial of the case resulted in a verdict and judgment in favor of the appellee, from which the appellant has prosecuted this appeal.

From the testimony of witnesses on behalf of the appellee, the braking equipment may be described as follows: “The brake wheel is on the top of the staff, and the staff runs down to below the sill or bottom of the car. The connection between the staff and the mechanism underneath the car that sets the brake is a chain anchored to the brake rod.. The brake rod is connected by a system of levers to the brake shoes that press against the wheels to set the brake. The chain is fastened to the brake rod. The chain extends from the brake rod to the staff and is connected there usually with a bolt through the staff with a nut on it. With the brake released the normal position between the brake staff and brake, rod with the proper brakes hooked up in proper shape would be slightly loose.”

The manner in which the accident occurred and the situation was detailed by the appellee as follows: “The brake was on the opposite end of the car from the end on which I got on the car, which was moving when I got to tffe top of the car. We had not got to the place where we were going to stop the car. I got on the running board, which is right in the center of the top of the car and is made of wood boards about two feet wide. I went north on the roof of the car on the running board as the car moved. The car was about 40 feet long. The hand brake on this car was a platform brake. There was a platform at the end of the car. The brake wheel is about a foot and one-half above the top of the car. The platform is about two feet below the roof of the car and is about two inches thick by eight inches wide and two feet long. It extends out eight inches from the end of the car. It was a metal platform with a rim around it. The 'brake shaft comes up through the platform, and the brakeman stands on this platform to set the brake, facing, in this instance, the north end of the car. The brake staff is three to five inches from the end of the car all the way up. The brake wheel looks pretty much like an automobile steering wheel and is fastened on top of the staff. The movement of .the wheel moves the staff, and the staff turns the brake chain. The rule is that the brake wheel is to be turned to the right, and this sets the brake. There is a dog, ratchet wheel on the brake platform, that works on a pedal. You move that with the toe after you set the brake. This ratchet wheel is fastened to the brake staff. It requires about all the power a man has got to set the brake. The brake wheel is about 18 inches in diameter. The brake is set by using both hands and revolving the wheel. You first wind it to the right, far enough to take up the slack, until you feel a resistance, and then you begin to set the brake which requires you to put all the power you’ve,got behind it.” . Continuing, the appellee stated that they were handling the cars on this occasion in the usual manner, and he began the operation for setting the brake in the customary way when a car was moving, and “I set up this brake to where it was tight; then reached around and got a new hold and come on it as hard as I could. I was still standing with my face south to the end of the car and toward the brake wheel I was handling, and my back was the way we were going. My hands were right opposite’ each other across the wheel, across the end of the car, in front of me, and I come around with it there with all my might for the purpose of swinging to the left with all my power. This would give the brake wheel a right-hand turn. "When I did this, I don’t know Avhat happened; it come loose. The wheel come plumb loose. The chain gave way down there some way or other, the wheel turned loose to the right all of a sudden and turned me loose. My weight was thrown to the left, and, when that resistance ceased, my body went through the air and hit the ground.” In describing the weather conditions appellee said: “It came some kind of a little spring mist there, it wasn’t raining at the time.”

The applicable portion of the statute alleged to have been violated provides that “it shall be unlawful for any common carrier subject to the provisions of this chapter to haul or permit to be hauled or used on its line any car subject to the provisions of this chapter not equipped with" appliances herein provided for, to-wit: All cars must be equipped with secure sill steps and efficient hand brakes.”

The evidence upon which the appellee relied as a basis for his recovery and to show a violation of the Safety Appliance Act was given by several witnesses who had been brakemen and who were experienced in application of brakes, but who had no experience in the building of cars or in the selection and assembly of their equipment. Their testimony may be thus summarized: In the operation of a safe and efficient brake, there would be required from one-half of a turn of the brake wheel to one and one-half turns thereof to set the brake, and where it required 2% turns of the brake wheel to set it, the operation was inefficient and unsafe. There were five witnesses who testified for the appellee, two of whom stated that, where a brake was in normal working order and properly hooked, one-half round or one round of the wheel would set the brake, while three other witnesses stated that a brake in this condition would require from one to one and a half rounds to set it. All these witnesses stated that, if a brake chain is so long that it takes two and a half or more rounds of the brake wheel to set it, the brake would not be in good serviceable condition.

Immediately after the happening of the injury to the appellee, the conductor of the train and a witness for him, ascended to the top of the car from which the appellee had fallen and set the brake. To perform this operation it required not less than two and a half turns of the brake wheel. All of the testimony, both on behalf of the appellee and the appellant, gave this as about the number of turns required to set this particular brake.

The car from which appellee was thrown was No. 92305 Pere Marquette, and was one of a series of five hundred cars which had been manufactured by the Pressed Steel Construction Company of Pittsburg, Pa., for, and delivered to, the Pere Marquette Railway Company. The deliveries of this series of cars were made during the months of August and September of 1930, the car in question having been finally inspected and received by the railroad company on September 22, 1931, so that on the date of the accident to appellee it had been in use about seven months. The evidence is undisputed that these cars were made identically like a model or sample car which had been constructed and equipped under the supervision of the mechanical engineer and officers of the railway company and designed to comply with the National Safety Appliance Act and the rules of the Interstate Commerce Commission. It was also undisputed that, as the cars were constructed the parts were carefully inspected, and before they were turned over to the railroad company they were carefully gone over and measured, and the brake equipment was examined for the purpose of meeting the requirements of the Safety Act and rules. The length of the brake chain on this particular car and on all the other cars was the same, being 39% inches in length. On the final tests all cars should require about two and a quarter turns of the brake wheel to set the brake. These cars were immediately put in service and routed over the different lines of railway throughout the United States.

Testimony was given by several witnesses on behalf of the appellant who were experienced in designing and building cars and in the designing of equipment placed upon them. All testified without contradiction that the brake equipment on the car involved conformed to the best manufacturing standards, and this was the standard type of brake designed and used by the AmeriRailway Association; that at least seventy per cent, of the box cars in service using a hand brake of the type of the one in question would require as many as two and a half revolutions of the wheel in order to set the brake; that the Federal agents charged with the duty of making inspections under the Safety Appliance Act and enforcing the rules of the Interstate Commerce Commission with reference thereto were continuously through the country checking car equipment, whether new or old, and there had never been any prosecution or complaint based on the taking as many as two and a half turns of the brake wheel to set the brakes.

It is undisputed also that the car from which appellee had fallen was examined within an hour after the accident, and it was found to be in good condition. No loose or defective connections or any worn or defective parts and no part of the hand brake equipment out of adjustment was found. A test was made at the time of the .efficiency of the hand brake and the number of revolutions of the wheel required to set it up, and no defect was found and the brakes used were in good order. An examination of the car was made at the time of the trial, and the braking equipment was found to be in the same condition as when inspected within an hour after the accident and the brake chain was found to be 39% inches long, the same as when taken from the factory. There was no dispute in any of the testimony except as to the opinions of the witnesses regarding the number of turns required for setting an efficient brake. Some of the witnesses for the appellee gave no reason for the conclusion that a brake requiring two and a half turns to set would be inefficient, but some thought this number of turns would cause the brake chain, in winding around the brake staff, to wind on itself and slip, but there was also testimony which is not disputed that, this would sometimes happen oh brakes requiring not more than one or one and a half turns to set.

An experienced brakeman testified for the appellee to the effect that there are various types of brakes. Some might prefer one type and some another; that many times, while he was engaged in braking, a link of the chain''' would wrap and slip off on the brake staff, and it could not be known when this would, happen. Continuing, he said: “When one is engaged in braking, he would not know when that would happen. When I got ready to set a brake, it is my idea to take a good hold. I would not know but what there might be a wrapping of the link below. You cannot tell; that has happened to me several times on all types of cars; to avoid that I concluded it should not take over a lap and one-half.”

We are not advised by any evidence in the case as to what the result would be when a brake wheel had been turned sufficiently to tighten the brake preparatory to setting it and then being suddenly released — whether this would cause a revolution of the wheel backward sufficient to entirely unwind the chain from the brake staff or not. One witness, a lady who was nearby when the accident occurred, and who appears to be disinterested, stated that the brakeman was on top of the car walking along and had not reached the brake at all when from some cause unknown to the witness he slipped or stumbled and fell from the car. This testimony, together with the fact that it appears that no part of the brake chain was wrapped around the staff and that it took the full amount of turns — namely, two and a half to set the brake, indicates that the brakeman was not in fact engaged in the operation of setting the brake when he fell from the car; but, as the jury has ignored this testimony, so must we and determine from the facts, without considering this, what, if any, would be the liability of the appellant.

The appellant contends, in the first place, that the number of turns of a brake wheel required to set a brake is an engineering or mechanical question for the engineers and officers of' the companies which built and designed and own the car in question. Next, the appellant contends that the alleged cause of the accident was one of the usual and ordinary risks incident to the employment.

Lastly, appellant contends that no justifiable inference of negiigence against the appellant can be reasonably drawn from the evidence.

On the second contention made, reliance is had on the evidence which, it is claimed, shows that on all types of brakes it is not an unusual thing for a brake chain to wrap upon the staff in such manner that it will slip from that part of the chain upon which it is superimposed and fall on the brake staff causing a wabbling or jerking motion of the braking apparatus; and, on the last contention, it is insisted that the opinion of the appellee to the effect that “the brake chain gave way down there" can be nothing more than a conclusion or conjecture on his part, for he did not, and could not, see any part of the brake mechanism below the platform, and there was no evidence from any witness that the chain had in fact wrapped itself and slipped upon the brake staff. Appellant argues that, as the brake platform was made of metal only eight inches in width and so narrow that the employee had but little better than one-half of his feet on it and it was a damp morning, it is as reasonable to conclude that the platform was wet and slippery, and that this condition, together with the force used in setting the brake, caused the'appellee to slip and fall as to conclude that the accident was caused by the brake chain wrapping on itself and slipping. Appellant also argues that under the circumstances and proof it is as reasonable to conclude that the appellee was mistaken in his belief that he had brought the brake to full tension before applying his utmost strength, and that he might have applied more force than was reasonably necessary under the circumstances; that he should have anticipated an unusual movement of the brake wheel, and that his hands might have slipped, as he failed to testify to the degree of strength with which he grasped the brake wheel before making the final effort. It is the contention of the appellee that the evidence leaves the cause of the happening of the accident uncertain, and in that state that it might be said that more than one cause might have produced the injury, for one of which the employer was responsible and for the other it was not, and that, for the jury to determine what was the actual cause of the accident, it would be necessary for it to indulge in speculation.

We pretermit an examination of these contentions, for an examination of the first question raised leads us to the conclusion that the position of the appellant on that is well taken. It was alleged and admitted that at the time of the accident the appellant was engaged, and the appellee was working, in interstate commerce. Therefore, the proposition presented must he determined in accordance with the rules announced hy the Federal courts. It has been held in a number of cases decided by the Supreme Court of the United States, reference to which is made in appellant’s brief, that by the several acts of Congress it took possession of the field of employers’ liability to employees in interstate commerce by railroad, and all State laws on that subject were superseded, and that the rights and obligations of employers and employees depend upon those acts and the applicable principles of common law as interpreted by the Federal courts. This principle is recognized by both the appellant and the appellee, and the latter, to refute the contention of the appellant on the first point raised, relies upon the decisions of the Federal courts which he contends make the efficiency of the brake, and whether or not it was in violation of the Safety Appliance Act, questions for the jury, where there is testimony that a brake requiring more than one and a half turns to set is not a proper and efficient brake, and where it is shown that it did require more — to-wit, as much as two and a half turns —to set the particular brake, is sufficient evidence to submit to the jury the question of its efficiency. The cases cited are as follows: C. R. I. & P. Ry. Co. v. Brown, 229 U. S. 317, 33 S. Ct. 840; Minneapolis & St. L. Ry. Co. v. Gotschall, 244 U. S. 66, 37 S. Ct. 598; L. & N. Ry. Co. v. Layton, 243 U. S. 618, 37 S. Ct. 456; and San Antonio & A. P. Ry. Co. v. Wagner, 241 U. S. 476, 36 S. Ct. 626.

An examination of those cases discloses that they all deal with cases where injuries resulted from the failure of automatic car couplers to properly function. Automatic car couplers required by the Safety Appliance Act have been defined to be such as would have sufficient lateral motion to permit trains to round curves, with adjustable knuckles which can be opened and closed and adjusted, so that at all times they may make contact and fasten automatically by impact, and the standard prescribed by the act for such equipment is that there must be “ couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the cars.” This standard was made to apply in all cases whether or not the cars brought together are of the same kind, make or type. San Antonio & A. P. Ry. Co. v. Wagner, supra.

In C. R. I. & P. Ry. Co. v. Brown, supra, the injury sued for happened to a brakeman while he was endeavoring to make coupling between cars. The facts were that, while he was attempting to make the coupling, he was walking by the side of the train, as was proper for him to do; that from this position he could perform the operation if the couplers were in good condition. He made several efforts which failed to open the coupler, making it necessary for him to reach between the cars in order to raise the coupler pin so that connection might be made, and that in so doing he was injured. The court held that under the standard fixed by the act the failure of the coupler to function was sufficient to justify the inference that the law had been violated, and that the injury was the proximate result thereof, and that on this evidence it was properly submitted to the jury.

So, in Louisville & N. Ry. Co. v. Layton, supra, the court held that it was a plain violation of the act where cars were not equipped with automatic couplers which would couple by impact, and when there was evidence to show that they did not couple this was sufficient to warrant the jury in the finding that the act had been violated.

In Minn. & St. L. Ry. Co. v. Gotschall, supra, the injury was occasioned by a brakeman being thrown from a moving train as the result of. couplers coming open while the train was in motion, causing an automatic setting of the emergency brakes and a sudden jerk. It was there held that it was proper for the jury under an instruction of the court to infer negligence on the part of the company from the single fact that the coupler failed to perform its function.

These cases, we think, have no application to the case at bar, for the reason that the act fixes no standard by which efficient brakes may be measured, such as was done in that part of the act relating to automatic couplers. The only requirement of the Safety Appliance Act with relation to hand brakes is that they must be efficient, and there is nothing in the act or the decisions of the courts from which it may be legitimately inferred that railway companies are insurers of the safety of their brakemen while engaged in the operation of such brakes or that any given number of turns of the brake wheel is necessary.

The Federal Boiler Inspection Act of February 17, 1911, as later amended, was passed for the same purpose as was the Safety Appliance Act, namely, to promote the safety of employees. These two acts are to be read and applied with the Federal Employers’ Liability Act under which a defendant is liable for any negligence chargeable to it which caused or contributed to cause the injury to the employee, who will not be held guilty of contributory negligence or to have assumed the risk of his employment if a violation of the acts contributed to the cause of the injury. Under the provisions of both the Boiler Inspection Act and the Safety Appliance Act an absolute duty is imposed without regard to the exercise of ordinary care to comply with their provisions. Companies engaged in interstate commerce are not permitted to substitute some other appliance for that named in the act, but are held to a literal compliance with its terms.

The question, then, is, has the appellant company in the case at bar complied with the requirement of the statute by furnishing an efficient brake? It is to be observed that the car and its brake equipment were manufactured according to a well-recognized and generally approved standard, and that at least seventy per cent, of the cars in operation are equipped with brakes requiring as much as two and a half turns to set. This particular car was one of a series of five hundred, identical in manufacture and equipment, received during the months of August and September, 1930, and immediately placed in service and routed to various destinations throughout the United States. The agents of the Federal government clothed with the duty of inspecting cars for defective equipment have made no complaint of any car of this series, or of any other ear having a -braking equipment requiring two and a half turns to set. These cars and their equipment were manufactured with the Safety Appliance Act and the rules of the Interstate Commerce Commission in mind, and were 'built and equipped so as to comply with the same.' It is also to be remembered that immediately after the accident in question an examination of the car disclosed no worn or broken parts, no loose connections or other imperfections, and there were no structural defects. The question therefore of the efficiency of the equipment is a mechanical one. Since there are a number of mechanical questions arising in the determination of the proper construction of cars and their braking-equipment, and, as there are various types of brakes, each of which has its particular advocates — some preferring one and some another — and as inventions are frequently occurring and many devices provided to accomplish a like purpose, it is not proper for courts to lay down rules which will operate to restrict carriers in their choice of mechanical means by which their operations may be conducted. For should such matters be left to the varying opinions and verdicts of juries.

In the case of Baltimore & O. Ry. Co. v. Groeger, 266 U. S. 521, 45 S. Ct. 169, an accident resulted from an explosion of a locomotive boiler, and the court submitted two issues to the jury for its decision — whether the explosion was caused in whole or in part from an unsafe condition in the crown sheet of the boiler which defendant permitted, and whether defendant’s failure to have a fusible plug in the crown sheet violated the Boiler Inspection Act. On appeal the court held that the first issue was properly submitted to the jury, but that the trial court erred in its submission of the second. In passing on this question, the court noticed the requirements of the Boiler Inspection Act to the effect that use of any locomotive engine propelled by steam power was forbidden “unless the boiler * * * and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of snch carrier in moving traffic without unnecessary peril to life or limb.” Continuing, the court said: “Fusible plugs are made of soft metal, which will melt at relatively low temperature. They may be, and sometimes are, inserted into and used as part of the crown sheet; and are so shaped and placed that the end of the plug inside the boiler extends slightly above the surface of the metal surrounding it. It is intended that, if the water on the crown sheet shall be too low, the fire will melt out the plug 'before greater damage or explosion results, and allow the steam to escape from the boiler into the firebox and so relieve the pressure and check or extinguish the fire.” The court there quoted from Rule No. 14 of the Interstate Commerce Commission as follows: “If boilers are equipped with fusible plugs, they shall be removed and cleaned of scale at least once every month. Their removal must be noted on the report of inspection,” and, continuing, the court further said: “This does not purport to requife fusible plugs to be used. There was none in the crown sheet in question. * * * It is a well-established rule that the master is not bound to furnish the latest or best tools or appliances for the use of his servants. That rule is applicable here, and we hold that defendant was not liable for failure to furnish the best mechanical contrivances and inventions or to discard appliances upon discovery of later improvements, provided the boiler was in proper condition and safe to operate, as required by the statute. The jury was by the charge authorized to find that the act required defendant to have a fusible plug in the crown sheet of the boiler. There is nothing in the act or in any rule, regulation, or order authorized by it, which specifies the use of fusible plugs. This, however, does not relieve the defendant of the duty to have and keep its boilers safe for use as required by the act. Great Northern Ry. Co. v. Donaldson, 246 U. S. 128, 38 S. Ct. 230. The use of fusible plugs has been known for a long time. The record does not contain a complete showing of the extent of their use; but it appears that the Erie Eailroad uses them, and that for some years defendant used them; that defendant has now about 2,700 locomotives, and does not have fusible plugs in any of them; and it was shown that they are not used by the New York Central, the Chicago, Burlington & Quincy, the Illinois Central, or the Nickel Plate. * * * It appears that, among practical men experienced in such matters, there is a difference of opinion as to the usefulness of such plugs. If the question whether the standard of duty fixed by the act required defendant to have a fusible plug in the crown sheet of the boiler were one for the determination of a jury, we think there was evidence which would sustain a verdict in the affirmative or in the negative. But we think the question was not for the jury. So. Pac. Co. v. Seley, 152 U. S. 145, 150, 14 S. Ct. 530; Tuttle v. Milwaukee Ry. Co., 122 U. S. 189, 194, 7 S. Ct. 1166; Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478, 483, 3 S. Ct. 322; Kilpatrick v. Choctaw, O. & G. R. Co., 121 Fed. 11; Richards v. Rough, 53 Mich. 212, 216, 18 N. W. 785. And see So. Pac. Co. v. Berkshire, 254 U. S. 415, 417, 41 S. Ct. 162.”

In the case of Fredericks v. Erie Bd. Co., decided by the C. C. of A., Second Circuit of the State of New York, and reported in 36 Fed. (2d) at page 716, suit was brought for an injury to an employee while endeavoring to operate an appliance called a “petcock.” After having passed on several questions, the court said: “The plaintiff also claimed that the engine was defective because of the unsafe location of the drain cock, and the defendant requested the court to charge ‘that the jury can not find the engine defective on account of the location of the cook. ’ Instead of complying with this request, the court left the question of safe location to the jury, with some general remarks to the effect that it should not consider purely ■mechanical arrangement, but should determine whether the appliance was safe to operate, and proper and safe for the service in which it was to be used. When, as in this case, the evidence was overwhelming that the drain cook was located in the only place that it could be put and work properly, and that such location was of necessity uniformly used on lifting injectors by railroads in the territory where the plaintiff was hurt, it was error to permit the jury to call into play its own ideas as to a safe and proper location, and allow it to find the engine defective because the drain cock was not placed, perhaps, where the jury thought it should have been put. ’ ’

There were several ex-brakemen and conductors testifying for appellee, who differed among themselves as to the number of turns of a brake wheel when it is properly functioning, and from the opinion held by the mechanical engineers and those whose duty it was to make a study of the equipment and operations of brakes. According to the judgment of these persons, a brake requiring more than one -and a half turns was inefficient and in bad order. On the other hand, several witnesses skilled in the construction of braking equipment and familiar with their operation, stated that it was their opinion that brakes requiring not more than one and a half turns were not as well adapted to perform the functions for which they were designed as those having from two to three turns and these witnesses gave various reasons for their opinions.

It will therefore be seen that there is a difference of opinion among practical men as to the particular type of brake most efficient which brings this case within the rule announced in the case of Baltimore & O. Ry. Co. v. Groeger, and in Fredericks v. Erie Ry. Co., supra. As a result of our views, it follows that the trial court erred in not directing a verdict for the defendant at its request. The judgment of the trial court will therefore be reversed, and, as the case appears to have been fully developed, it will here be dismissed. It is so ordered.