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was standing with one foot on the platform as to the second ground, does not apply. of the station and one foot on the step of That was a suit in equity, brought by a the caboose in any manner contributed to citizen of Ohio against a citizen of Illinois his death, then he was guilty of contributory in the Circuit Court of the United States negligence, and the plaintiffs, in that event, for the Eastern District of Arkansas, to reare not entitled to recover in this action, un- move the cloud from a title of real estate less the defendant discovered, or in the exer- situated in that district. The jurisdiction cise of ordinary care and caution ought to was sustained upon the ground that the have discovered, the dangerous position of suit was local, and had to be brought in the deceased, if he was in a dangerous position.” district where the real estate is situated.

And the defendant asked the following in. That is not the case in the action before us. struction:

It is transitory. And there is not that di. “(12) If the position in which deceased was versity of the citizenship of the parties that standing with one foot on the platform of is necessary to give the United States Cirthe station and one foot on the steps of the cuit Court jurisdiction in such actions; "a caboose in any manner contributed to his citizen of one of the territories of the United death, then he was guilty of contributory States" not being “a citizen of a state within negligence, and the plaintiffs, in that event, the meaning of the Constitution and judiare not entitled to recover in this action." ciary acts." Hooe v. Jamison, 166 U. S. And the court modified it by adding the fol- 395, 17 Sup. Ct. 596, 41 L. Ed. 1049; Raillowing words: “Unless the defendant dis- road v. Swan, 111 U. S. 379, 4 Sup. Ot. 510, covered, or in the exercise of ordinary care 28 L. Ed. 462; Snead v. Sellers, 66 Fed. and caution ought to have discovered, the 372, 13 C. O. A. 518. dangerous position of deceased, if he was The amended petition for removal was in a dangerous position;" and, over the ob- filed too late, it being filed after the time jection of the defendant, gave it as modified, allowed by the statutes of this state for the

The attorney for the plaintiffs, in his open- filing of answers to complaints. Kansas ing argument before the jury, said:

City, Fort Scott & Memphis Railway Co. v. “And I say to you, gentlemen of the jury, Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 that, even if you should find that Mr. Mc- L. Ed. 963. Ginty's position, as described to you by the The instructions of the court and the rewitness in this case, was the most negligent marks of counsel, which we have copied position on earth, still you should not find herein, are erroneous and prejudicial. "It for the defendant."

is well settled that one who is injured by The defendant objected, and plaintiff's at- the mere negligence of another cannot retorney further said: "You did not wait cover at law or in equity any compensation until I had finished. I was going to say fur- for the injury if he, by his own negligence ther that it was the duty of the employés of or willful wrong, contributed to produce the railroad company to warn him. My ar- the injury of which he complains, so that, gument is this:

I want the court but for his concurring and co-operating fault, to hear it. My argument is this: I do not the injury would not have happened to him, care, for the purposes of this suit, whether except when the direct cause of his injury McGinty was guilty of the most negligent is the omission of the other party, after beact possible in having his hand upon the coming aware of the injured party's neglirailing and his foot upon the step; for, un- gence, to use a proper degree of care to der the evidence in this case, and under the avoid the consequences of such negligence.” instructions of the court, if the employés of This rule applies to passengers as well as the railway company saw him in that posi- to other persons. Little Rock & Fort Smith tion, or by the exercise of ordinary care Railway Company V. Miles, 40 Ark. 298, 48 could have seen him in that position, then Am. Rep. 10; Fordyce v. Merrill, 49 Ark. the railroad company should have warned 277, 5 S. W. 329; Little Rock & Fort Smith him, and they were guilty of negligence. I Railway Co. v. Cavenesse, 48 Ark. 106, 2 ask the court if there is anything wrong S. W. 503; Little Rock & Fort Smith Railin that argument."

way Co. V. Pankhurst, 36 Ark. 371; St. The defendant objected, and the court Louis, Iron Mountain & Southern Railway said, “I think he can argue that,” and the defendant excepted.

This court has held tbat it applies and is The plaintiffs recovered judgment, and the in force in cases when the employés of a defendant appealed.

railroad are required by statute to keep a S. W. Moore and Read & McDonough, for

lookout, and when obedience to the statute appellant. James Brizzolara, for appellee.

would have avoided the result of the con

tributory negligence. St. Louis, I. M. & S. BATTLE, J. (after stating the facts). The Ry, Co. v. Leathers, 62 Ark. 235, 35 S. W. appellant has abandoned the first ground for 216; St. Louis Southwestern Ry. Oo. v. removal set out in its petition. It has no Dingman, 62 Ark. 245, 35 S. W. 219; St. right to removal on the second ground. Dick Louis, I. M. & S. Ry. Co. v. Taylor, 64 Ark. v. Foraker, 155 U. S. 404, 15 Sup. Ct. 124, 39 364, 42 S. W. 831. L. Ed. 201, cited by it to sustain its petition In Little Rock Traction & Electric Oom

he . . 49W.

pany v. Kimbro, 87 S. W. 644, this court , bere as they were before, except it is contendbeld that a conductor on a street railway, ed now that the evidence failed to show that seeing the acts of a passenger on a street the death of Sanders was the result of the car, would not be in duty bound to interfere shooting by appellant. There was abundant to protect him, unless he could have reason- evidence to justify the conclusion that deably anticipated that he would be injured ceased was killed by appellant. One witwithout such interference. He was not ness said he "saw the flash, heard the rebound to do a useless act, or unnecessarily port, and Hall (deceased] fell to the ground" interfere with the freedom of the passenger.

and said, "I am shot through the stomNo such rule was embodied in the in- ach.” “The pistol was not over six inches structions of the court and the remarks of from Sanders' (deceased's] body." "Casteel counsel. The facts and principles involved pulled his pistol and shot him." Sanders in the two cases are different.

(deceased) was shot by appellant on the Reversed, and remanded for new trial, night of 25th December, 1903, was taken to a

hospital in Memphis, and died the following HILL, a J., being disqualified, did not Sunday. Witnesses testify that when appelparticipate.

lant fired deceased dropped, exclaiming, “He has shot me through and through!" The pis

tol was a 38 Smith & Wesson. Christmas CASTEEL V. STATE.

day was Friday, and deceased was shot at (Supreme Court of Arkansas. July 22, 1905.) 7:30 p. m., “through and through," was car1. HOMICIDE-EVIDENCE OF KILLING-SUFFI.

ried to a hospital in Memphis, and brought CIENCY.

back Sunday thereafter, dead. There is in Evidence on trial for murder held to show the record a note in the examination of one that the death of decedent resulted from the

of the witnesses, which recites, “The witness act of defendant. 2. SAME — DENIAL OF KILLING - QUESTIONS

here goes into detail, with Mr. Andrews, the ASSUMING THE KILLING-FAILURE TO OB- prosecuting attorney, showing the relative JECT-EFFECT.

position of the deceased at the time of the Where, on a trial for murder, defendant

fatal shot.” It appears also from the form did not object to the form of the questions of the state, which assumed that he killed de

of the question by counsel for the state asked cedent, he will be deemed not to have denied some of the witnesses, to wit, “Tell the jury the killing.

what was said to him, and all the circum3. HARMLESS ERROR—EVIDENCE-CONTRADIC- stances leading up to this killing,” etc., that TION OF WITNESS-IMMATERIAL MATTER.

the fact of the killing by appellant was not Where, on a trial for murder, the position of a witness with reference to a third person

denied. The state assumed, without objecat the time of the killing was immaterial be- tion from appellant, that the killing was cause of his proximity to defendant, the error, done by him. The record warrants the conif any, in excluding evidence contradicting the testimony of the witness given before the exam

clusion that appellant raised no issue as to ining magistrate with regard to his position

the fact of the killing in the court below. with reference to the third person, was not Inasmuch as he did not object to the form of prejudicial, as it could not have affected the

the questions on the part of the state that credibility of the witness.

assumed such to be the fact, we take it be Appeal from Circuit Court, St. Francis did not deny the killing. The refusal of the County; Hance N. Hutton, Judge.

court to permit the defendant to prove by "Not to be officially reported.”

Paris Gorman, who heard Guy Eldridge tesGordon Casteel was convicted of murder tify before the magistrate at the examining in the second degree, and he appeals. Af- trial of the defendant, on this same charge, firmed.

that Eldridge testified before the magistrate At the March term, 1904, of the St. Fran

that at the time the shot was fired by the decis circuit court the grand jury returned an

fendant he was standing north of Rainbolt, indictment against the appellant charging

against the fence; that defendant was south him with murder in the first degree, and at

of Rainbolt against the fence, and deceased the March term, 1905, he was tried upon the

was southeast of defendant, and close to him plea of not guilty, found guilty of murder

—was not prejudicial error, if error at all, in the second degree, and given 10 years in

for, considering the proximity of the witness the penitentiary. His motion for a new trial

Eldridge to the appellant, the deceased, and having been overruled, he appealed to this

Rainbolt, it was wholly immaterial whether

the witness was standing "north of Rainbolt. court.

against the fence” or not. This is the only R. J. Williams, for appellant. Robt. L. point on which the foundation was properly Rogers, Atty. Gen., for the State.

laid for the introduction of the evidence of

Gorman, and it could not, as we see it, have WOOD, J. (after stating the facts). This possibly affected the credibility of the witis the second appeal in this case. The facts ness Eldridge. It did not tend in any manwill be found fully stated in 73 Ark. 152, 83 S. ner to contradict him on a material point W. 953. They are substantially the same The judgment is affirmed.

veyed the land to plaintiff, Berry. A nonsuit COVINGTON V. BERRY.

was taken in the action in March, 1900, and (Supreme Court of Arkansas. July 29, 1905.)

a new action commenced in August, 1900.

The chain of title in this new action is a 1. LIMITATIONS-ACTION AFTER NONSUIT-AC

grant from the United States to the state, QUISITION OF NEW TITLE. Where a second action of ejectment, in

from the state to R. C. Brinkley, and constituted after suffering a nonsuit in the first veyances from the heirs of R. C. Brinkley to action, is based on a title acquired by plaintiff plaintiff, Berry, dated January 13, 1898, and subsequent to the commencement of the first action, limitations do not cease to run against

June 29, 1899. The complaint also set out the second action until the commencement there- that he was the owner of the land by virtue of.

of a sale under a decree of court for nonpay. 2. EVIDENCE-SECONDARY EVIDENCE-Loss of ment of levee taxes, and also by purchase at ORIGINAL.

a sale for nonpayment of state and county A transcript of the record of the state land office is inadmissible to prove a conveyance

taxes. On the trial objection was made to from the state, in the absence of a showing the introduction of these tax deeds on the that the original patent is lost, or cannot be ground that they were void on account of produced.

an insufficient description of the land, but (Ed. Note.—For cases in point, see yol, 20, Cent. Dig. Evidence, 88 1302, 1303.)

the objection was overruled. The court per3. PUBLIC LANDS – SWAMP LAND - CONVEY

mitted the plaintiff to prove the conveyance ANCE TO CITIZEN.

from the state to R. C. Brinkley by a tranA conveyance of land as swamp land by script of the record of the state land office the state to a citizen shows prima facie title

without any showing that the patent from in the citizen. 4. TAXATION - DEEDS - SUFFICIENCY OF DE

the state could not be produced. The court, SCRIPTION.

among other instructions given at request of A deed executed by a commissioner under plaintiff, told the jury, in substance, that a decree to enforce the payment of a levee tax, they should find for the plaintif unless there describing the land as "E. pt. S. E. 14 Sec. 30,

was seven years' continuous adverse posses5. N. 4 E., containing 63 acres,” is not sufficiently certain to pass title, and is void.

sion by the defendant before August 22, 5. SAME.

1898, the time of the bringing of the first A tax deed describing the land as the "east suit, and refused the request of the defendpart of southeast quarter of section 30, 5 N.

ant that the statute of limitations did not 4 E. containing 60 30/100," is not sufficiently certain to pass title, and is void.

stop until the 25th of August, 1900, the date

of the bringing of the last action. There Appeal from Circuit Court, Lee County;

was a verdict and judgment in favor of the Hance N. Hutton, Judge.

plaintiff, and defendant appealed. Ejectment by Ed Berry against Lucy Cov.

W. Gorman and N. W. Norton, for appelington. From a judgment for plaintiff, de fendant appeals. Reversed.

lant. John Gatling, for appellee. Ed Berry brought an action of ejectment RIDDICK, J. (after stating the facts). against Lucy Covington to recover 642 acres This is an appeal by the defendant from a of land in St. Francis county. This land was judgment rendered against her in an action a part of the east half of the southeast quar- of ejectment for the recovery of 644 acres of ter of section 30, township 5 north, range 4 land. There had been a prior action for the east, that was east of the St. Francis river. same land, which was commenced on the The Choctaw Railroad crosses this tract, and 22d of August, 1900, and in which a nonthe 642 acres in controversy lay with the suit was taken in March, 1900. Afterwards railroad. The plaintiff claimed to be the the present action was begun on the 25th of owner of that part of the east one-half of the August, 1900. In the first action plaintiff southeast quarter of section 30 that lay east relied on a conveyance from Brinkley to Mcof the river, containing 60.70 acres, which Murray and one from the heir of McMurray included the 642 acres in controversy. The to plaintiff. After the commencement of the defendant pleaded the statute of limitations first action plaintiff procured deeds from the of seven years, and also denied that plaiu- heirs of Brinkley to himself. In the second tiff was the owner of the 60.30 acres east of action he does not refer to the conveyance the river. The first action brought by the from Brinkley to McMurray, but relies on plaintiff against defendant to recover the the conveyance from the beirs of Brinkley to land was begun in August, 1898. The chain himself. Defendant pleaded the statute of of title set up in this action was as follows: limitations, and her counsel contend that the Conveyance from the United States to the two suits above referred to were based on state of Arkansas by the swamp land act of different causes of action, and that the stat1850 (Act Sept. 28, 1850, c. 84; 9 Stat. 519), ute of limitations did not stop running un

om the state to R. C. Brinkley in 1853, til the commencement of the last action. from R. C. Brinkley to Hugh McMurray in | The mere fact that plaintiff did not set out 1872; that subsequently, in 1898, the heirs | his chain of title in one or the other of these of Brinkley executed a deed to McMurray suits would, we think, on this point, be imcorrecting a mistake made in a former deed material if he was in fact the owner of and of R. C. Brinkley; and that A. D. Ketchum, seeking to sustain the same title in each acthe only heir of McMurray, afterwards con- tion. But the contention of defendant is

es, sold and conveyed the land to plaintiff, described the land as "E. pt. S. E. 14 Sec. 30, 5 N. 4 E., containing 63 acres,” and the tax deed from the clerk of St. Francis county conveying land to Reeves, under which deed plaintiff also claims, described it as the "east part of southeast quarter of section 30, 5 N. 4 E. containing 60 30/100." These descriptions might possibly be construed to describe a tract in the shape of a parallelogram taken from the east side of the quarter section described, but the evidence shows that it was not the intention to sell a tract in that shape. Under former decisions of this court these descriptions are not sufficiently certain to pass title in a proceeding to collect taxes, and these deeds are void, and the exceptions to them should have been sustained. Rhodes v. Covington, 69 Ark. 357, 63 S. W. 799; Texarkana Water Co. v. State, 62 Ark. 188, 35 S. W. 788; Schattler v. Cassinelli, 56 Ark. 178, 19 S. W. 746.

For the reasons stated, the judgment is reversed, and the cause remanded for a new trial, with leave for either party to amend pleadings.

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sound it plaintiff in the second action is seeking to maintain a title acquired subsequent to the commencement of the first action, for such title gave plaintiff a new cause of action, and the fact that plaintiff brought a former action against defendant did not stop the statute from running against plaintiff on a cause of action acquired after the commencement of such suit. That is to say, if plaintiff held the title to this land, or any part of it, at the time of the commencement of the first action to recover the land, the statute of limitations stopped, as to the land he then owned, on the bringing of such action; but if he acquired title to it, or to part of it, subsequent to that time, then as to that part he had no right of action at the time the first suit was brought, and the statute did not stop running against his right to recover until he acquired title and began the new action. It takes a right on the part of plaintiff, and a violation of that right on the part of defendant, to make a cause of action, and until plaintiff acquired title to the land the possession of the defendant did him no injury, and gave him no right of action against her. Plaintiff did not set out or read in evidence the deed from Brinkley to McMurray or from McMurray to him, and we are not able to pass on those deeds. But as the chain of title set out by plaintiff and the evidence tends to show that the title to at least a portion of the land was acquired by plaintiff subsequent to the commencement of the first action, we are of the opinion that the court erred in holding generally that the statute of limitations stopped running on the commencement of the first action. Union Pacific Ry. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983; Sicard v. avis, 6 Pet. 124, 59 L. Ed. 342; Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70.

The objection to the introduction of the transcript of the record of the state land office should have been sustained, in the absence of a showing that the original patent was lost, or could not be produced. Carpenter v. Dressler. 1

As to the question as to whether the land was sufficiently described in the various deeds submitted by plaintiff: It is not material to notice the description of the land contained in the deed from the United States to the state for the reason that the title to the swamp land of the state does not depend alone upon that deed, but upon the grant contained in the statute of 1850 (Act Sept. 28, 1850, c. 84; 9 Stat. 519). The fact that the state afterwards conveyed this land to Brinkley as swamp land makes out, we think, at least a fair showing of title in him. The deed of the state describes the land as the east half of the southeast quarter, giving section, range, and township, which is sufficiently certain. The deed from Folber, by which Folber, as commissioner, to enforce a decree for the payment of levee tax

HOT SPRINGS ST. R. CO. y. CHARLTON. (Supreme Court of Arkansas. July 22, 1905.) STREET RAILWAYS-COLLISION WITH VEHICLE -NEGLIGENCE-QUESTION FOR JURY.

In an action against a street railroad company for personal injuries caused by a collision of defendant's car with plaintiff's vehicle, evidence held to justify submission to the jury of the question of defendant's negligence.

(Ed. Note.--For cases in point, see vol. 44, Cent. Dig. Street Railroads, $ 251.)

Appeal from Circuit Court, Garland County; Alexander M. Duffie, Judge.

Action by John Charlton against the Hot Springs Street Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Charlton recovered a judgment against appellant street railway company for $150 for personal injuries, and the street car company appeals. There was a conflict in the evidence as to whether there was a settlement of the action immediately after the injury. There are material conflicts through. out the testimony, but this statement of the evidence which the jury had a right to believe, made by the appellee, the court finds to be substantially the facts fairly to be deduced from the testimony most favorable to the appellee:

"Appellee, John Charlton, on the 12th day of March, 1901, was driving a wagon, loaded with wood, along Park avenue, in the city of Hot Springs, upon and along which is locat. ed a line of street railroad, owned by the Hot Springs Street Railroad Company. On the side of the railroad track where appellee was driving there was a ditch at the edge of, and running parallel with, the street, and so close to the street as to make it a close drive for a wagon to pass along between the

* Rehearing pending.

ditch and the car track. The ditch was from circumstances, and he tried to stop the car 2 to 4 feet deep, and from 4 to 6 feet wide. by reversing the power. He stated that, if One of the mules to appellee's wagon was the brakes had been in good condition, he afraid of the cars, and would shy or turn could and would have stopped the car before from them whenever he saw them. One of striking the wagon. The reverse lever which appellant's cars came, meeting appellee, and the motorman tried to use had also been was from 50 to 75 yards from him when he worn until it was loose, and the motorman observed it. · Being afraid that his mule thought that had something to do with his would take fright at the car and throw him not being able to properly apply the reverse and his wagon into the ditch, and believing lever." that he had ample time to cross over the

E. W. Rector, for appellant. Wood & Hen. railroad track to the other side of the street to a place of safety, he turned his team

derson, for appellee. and drove across the track. The team and front part of the wagon passed over the

HILL, C. J. (after stating the facts). The track, but the back end of the wagon was

respective rights and duties of street car struck by the car just before it got out of companies operating on public streets and reach. The motorman in charge of the car persons using those streets with vehicles are saw appellee and his wagon about the time fully and elaborately set forth in Hot Springs the wagon turned to cross the track, and Street Railroad Co. v. Hildreth, 72 Ark. 572, sounded his gong; the wagon being at that

82 S. W. 245. It is wholly unnecessary-in time from 150 to 175 feet away from the fact, an idle task—to reiterate those prin. car. The usual speed of the car was 10 or ciples. 12 miles per hour, but at that time it was

The first contention made by appellant is traveling about half speed, and was going

that the evidence fails to show negligence upgrade. A passenger on the car attracted on the part of the appellant, and that it the attention of the motorman about the

does show contributory negligence on the time he first saw appellee 150 or 175 feet | part of the appellee, and consequently the away, and handed him some money for tick

court erred in not withdrawing the case ets, and words were passing between the from the jury. It is insisted that appellant passenger and motorman, and the motorman was entitled to judgment on either of these paid no further attention to appellee or his grounds. The court is of opinion, following wagon until the passenger warned him to the Hildreth Oase that there was sufficient look out or he would run into the wagon.

evidence of negligence on part of the comThe motorman then looked, and saw appelpany to submit the question to the jury, parlee crossing the track about 20 or 30 feet in ticularly the negligence of the motorman, front of him. The team and front part of baving his attention detracted from watchthe wagon had crossed over the track, and ing ahead, and in having defective braking the back end of the wagon was still on the appliances, rendering an earlier stopping of track. The motorman then undertook to the car impossible. If the action of Charlreverse the power of the car, but made a ton in not properly estimating his chance of mistake in manipulating the appliance, and crossing in safety be held to be contributory did not check the speed of the car, and negligence, then the subsequent action of the struck the back end of the wagon just be- motorman, especially knowing the condition fore it left the track. The force of the col- of the car, presented the question of want lision threw appellee to the ground and in- of proper care after discovering the negliflicted on him personal injuries. The brakes gence of Charlton. to the car were in bad condition; there was It is also insisted that the evidence estabtoo much slack in the chain, and the shoes lishes a settlement and payment of the to the brakes were worn so that sufficient amount agreed upon in satisfaction of the pressure could not be brought against the damages. If Charlton's testimony be true, wheels of the car to properly control the there was no settlement binding upon him. speed. The motorman discovered the defec- It is true that he is contradicted, and his tive condition of the brakes on the first trip | testimony somewhat discredited, by his adout with the car that day, and bad made missions, yet these were all questions of seven or eight trips with the car before the fact determinable by a jury. The case should accident, passing by the shops of the com- have gone to the jury, and the question repany on each trip. The evidence also tended mains: Was it properly sent to the jury? to show that direct notice had been brought The instructions are assailed upon the to the company of the defective condition same grounds that similar instructions were of the brakes, by complaint being made by assailed in the Hildreth Case, and the court the motorman who had charge of the car is asked to re-examine that case, and folthe day before the accident, to the employé low the rule of the Georgia court there preof the company whose duty it is to repair / sented for consideration. The Hildreth Case the cars. The motorman in charge of the is in accord with many previous and wellcar at the time of the accident did not try considered decisions of this court, and the to apply the brakes, because he knew they Georgia rule shown to be contrary to the were not in condition to be of use under the settled practice in this state. The court is

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