was standing with one foot on the platform of the station and one foot on the step of the caboose in any manner contributed to his death, then he was guilty of contributory negligence, and the plaintiffs, in that event, are not entitled to recover in this action, unless the defendant discovered, or in the exercise of ordinary care and caution ought to have discovered, the dangerous position of deceased, if he was in a dangerous position."

And the defendant asked the following instruction:

"(12) If the position in which deceased was standing with one foot on the platform of the station and one foot on the steps of the caboose in any manner contributed to his death, then he was guilty of contributory negligence, and the plaintiffs, in that event, are not entitled to recover in this action." And the court modified it by adding the following words: "Unless the defendant discovered, or in the exercise of ordinary care and caution ought to have discovered, the dangerous position of deceased, if he was in a dangerous position;" and, over the objection of the defendant, gave it as modified. The attorney for the plaintiffs, in his opening argument before the jury, said:

"And I say to you, gentlemen of the jury, that, even if you should find that Mr. McGinty's position, as described to you by the witness in this case, was the most negligent position on earth, still you should not find for the defendant."

The defendant objected, and plaintiff's attorney further said: "You did not wait until I had finished. I was going to say further that it was the duty of the employés of the railroad company to warn him. My argument is this:

* I want the court

to hear it. My argument is this: I do not care, for the purposes of this suit, whether McGinty was guilty of the most negligent act possible in having his hand upon the railing and his foot upon the step; for, under the evidence in this case, and under the instructions of the court, if the employés of the railway company saw him in that position, or by the exercise of ordinary care could have seen him in that position, then the railroad company should have warned him, and they were guilty of negligence. I ask the court if there is anything wrong in that argument."

The defendant objected, and the court said, "I think he can argue that," and the defendant excepted.

The plaintiffs recovered judgment, and the defendant appealed.

S. W. Moore and Read & McDonough, for appellant. James Brizzolara, for appellee.

BATTLE, J. (after stating the facts). The appellant has abandoned the first ground for removal set out in its petition. It has no right to removal on the second ground. Dick v. Foraker, 155 U. S. 404, 15 Sup. Ct. 124, 39 L. Ed. 201, cited by it to sustain its petition

as to the second ground, does not apply. That was a suit in equity, brought by a citizen of Ohio against a citizen of Illinois in the Circuit Court of the United States for the Eastern District of Arkansas, to remove the cloud from a title of real estate situated in that district. The jurisdiction was sustained upon the ground that the suit was local, and had to be brought in the district where the real estate is situated. That is not the case in the action before us. It is transitory. And there is not that diversity of the citizenship of the parties that is necessary to give the United States Circuit Court jurisdiction in such actions; "a citizen of one of the territories of the United States" not being "a citizen of a state within the meaning of the Constitution and judiciary acts." Hooe v. Jamison, 166 U. S. 395, 17 Sup. Ct. 596, 41 L. Ed. 1049; Railroad v. Swan, 111 U. S. 379, 4 Sup. Ot. 510, 28 L. Ed. 462; Snead v. Sellers, 66 Fed. 372, 13 C. O. A. 518.

The amended petition for removal was filed too late, it being filed after the time allowed by the statutes of this state for the filing of answers to complaints. Kansas City, Fort Scott & Memphis Railway Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963.

The instructions of the court and the remarks of counsel, which we have copied herein, are erroneous and prejudicial. “It is well settled that one who is injured by the mere negligence of another cannot recover at law or in equity any compensation for the injury if he, by his own negligence or willful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him, except when the direct cause of his injury is the omission of the other party, after becoming aware of the injured party's negligence, to use a proper degree of care to avoid the consequences of such negligence." This rule applies to passengers as well as to other persons. Little Rock & Fort Smith Railway Company v. Miles, 40 Ark. 298, 48 Am. Rep. 10; Fordyce v. Merrill, 49 Ark. 277, 5 S. W. 329; Little Rock & Fort Smith Railway Co. v. Cavenesse, 48 Ark. 106, 2 S. W. 505; Little Rock & Fort Smith Railway Co. v. Pankhurst, 36 Ark. 371; St. Louis, Iron Mountain & Southern Railway Co. v. Martin, 61 Ark. 549, 33 S. W. 1070.

This court has held that it applies and is in force in cases when the employés of a railroad are required by statute to keep a lookout, and when obedience to the statute would have avoided the result of the contributory negligence. St. Louis, I. M. & S. Ry. Co. v. Leathers, 62 Ark. 235, 35 S. W. 216; St. Louis Southwestern Ry. Co. V. Dingman, 62 Ark. 245, 35 S. W. 219; St. Louis, I. M. & S. Ry. Co. v. Taylor, 64 Ark. 364, 42 S. W. 831.

In Little Rock Traction & Electric Com

pany v. Kimbro, 87 S. W. 644, this court held that a conductor on a street railway, seeing the acts of a passenger on a street car, would not be in duty bound to interfere to protect him, unless he could have reasonably anticipated that he would be injured without such interference. He was not bound to do a useless act, or unnecessarily interfere with the freedom of the passenger. No such rule was embodied in the instructions of the court and the remarks of counsel. The facts and principles involved in the two cases are different.

Reversed, and remanded for new trial.

HILL, Ɑ J., being disqualified, did not participate.

CASTEEL v. STATE.

(Supreme Court of Arkansas. July 22, 1905.) 1. HOMICIDE-EVIDENCE OF KILLING-SUFFI

CIENCY.

Evidence on trial for murder held to show that the death of decedent resulted from the act of defendant.

2. SAME DENIAL OF KILLING QUESTIONS ASSUMING THE KILLING-FAILURE TO OBJECT-EFFECT.

Where, on a trial for murder, defendant did not object to the form of the questions of the state, which assumed that he killed decedent, he will be deemed not to have denied the killing.

3. HARMLESS

ERROR-EVIDENCE-CONTRADIC

TION OF WITNESS-IMMATERIAL MATTER.

Where, on a trial for murder, the position of a witness with reference to a third person at the time of the killing was immaterial because of his proximity to defendant, the error, if any, in excluding evidence contradicting the testimony of the witness given before the examining magistrate with regard to his position with reference to the third person, was not prejudicial, as it could not have affected the credibility of the witness.

Appeal from Circuit Court, St. Francis County; Hance N. Hutton, Judge.

"Not to be officially reported."

Gordon Casteel was convicted of murder in the second degree, and he appeals. Affirmed.

At the March term, 1904, of the St. Francis circuit court the grand jury returned an indictment against the appellant charging him with murder in the first degree, and at the March term, 1905, he was tried upon the plea of not guilty, found guilty of murder in the second degree, and given 10 years in the penitentiary. His motion for a new trial having been overruled, he appealed to this court.

R. J. Williams, for appellant. Robt. L. Rogers, Atty. Gen., for the State.

WOOD, J. (after stating the facts). This is the second appeal in this case. The facts will be found fully stated in 73 Ark. 152, 83 S. W. 953. They are substantially the same

here as they were before, except it is contended now that the evidence failed to show that the death of Sanders was the result of the shooting by appellant. There was abundant evidence to justify the conclusion that deceased was killed by appellant. One witness said he "saw the flash, heard the report, and Hall [deceased] fell to the ground” and said, "I am shot through the stomach." "The pistol was not over six inches from Sanders' [deceased's] body." "Casteel pulled his pistol and shot him." Sanders (deceased) was shot by appellant on the night of 25th December, 1903, was taken to a hospital in Memphis, and died the following Sunday. Witnesses testify that when appellant fired deceased dropped, exclaiming, "He has shot me through and through!" The pistol was a 38 Smith & Wesson. Christmas day was Friday, and deceased was shot at 7:30 p. m., "through and through," was carried to a hospital in Memphis, and brought back Sunday thereafter, dead. There is in the record a note in the examination of one of the witnesses, which recites, "The witness here goes into detail, with Mr. Andrews, the prosecuting attorney, showing the relative position of the deceased at the time of the fatal shot." It appears also from the form of the question by counsel for the state asked some of the witnesses, to wit, "Tell the jury what was said to him, and all the circumstances leading up to this killing," etc., that the fact of the killing by appellant was not denied. The state assumed, without objection from appellant, that the killing was done by him. The record warrants the conclusion that appellant raised no issue as to the fact of the killing in the court below. Inasmuch as he did not object to the form of the questions on the part of the state that assumed such to be the fact, we take it he did not deny the killing. The refusal of the court to permit the defendant to prove by Paris Gorman, who heard Guy Eldridge testify before the magistrate at the examining trial of the defendant, on this same charge, that Eldridge testified before the magistrate that at the time the shot was fired by the defendant he was standing north of Rainbolt, against the fence; that defendant was south of Rainbolt against the fence, and deceased was southeast of defendant, and close to him -was not prejudicial error, if error at all, for, considering the proximity of the witness Eldridge to the appellant, the deceased, and Rainbolt, it was wholly immaterial whether the witness was standing "north of Rainbolt against the fence" or not. This is the only point on which the foundation was properly laid for the introduction of the evidence of Gorman, and it could not, as we see it, have possibly affected the credibility of the witness Eldridge. It did not tend in any manner to contradict him on a material point. The judgment is affirmed.

COVINGTON v. BERRY. (Supreme Court of Arkansas. July 29, 1905.) 1. LIMITATIONS-ACTION AFTER NONSUIT-ACQUISITION OF NEW TITLE.

Where a second action of ejectment, instituted after suffering a nonsuit in the first action, is based on a title acquired by plaintiff subsequent to the commencement of the first action, limitations do not cease to run against the second action until the commencement thereof.

2. EVIDENCE-SECONDARY EVIDENCE-LOSS OF

ORIGINAL.

A transcript of the record of the state land office is inadmissible to prove a conveyance from the state, in the absence of a showing that the original patent is lost, or cannot be produced.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 1302, 1303.]

3. PUBLIC LANDS - SWAMP LAND-CONVEYANCE TO CITIZEN.

A conveyance of land as swamp land by the state to a citizen shows prima facie title in the citizen.

4. TAXATION - DEEDS - SUFFICIENCY OF DESCRIPTION.

A deed executed by a commissioner under a decree to enforce the payment of a levee tax, describing the land as "E. pt. S. E. 4 Sec. 30, 5 N. 4 E., containing 63 acres," is not sufficiently certain to pass title, and is void. 5. SAME.

A tax deed describing the land as the "east part of southeast quarter of section 30, 5 N. 4 E. containing 60 30/100," is not sufficiently certain to pass title, and is void.

Appeal from Circuit Court, Lee County; Hance N. Hutton, Judge.

Ejectment by Ed Berry against Lucy Covington. From a judgment for plaintiff, defendant appeals. Reversed.

Ed Berry brought an action of ejectment against Lucy Covington to recover 62 acres of land in St. Francis county. This land was a part of the east half of the southeast quarter of section 30, township 5 north, range 4 east, that was east of the St. Francis river. The Choctaw Railroad crosses this tract, and the 62 acres in controversy lay with the railroad. The plaintiff claimed to be the owner of that part of the east one-half of the southeast quarter of section 30 that lay east of the river, containing 60.70 acres, which included the 62 acres in controversy. The defendant pleaded the statute of limitations of seven years, and also denied that plaintiff was the owner of the 60.30 acres east of the river. The first action brought by the plaintiff against defendant to recover the land was begun in August, 1898. The chain of title set up in this action was as follows: Conveyance from the United States to the state of Arkansas by the swamp land act of 1850 (Act Sept. 28, 1850, c. 84; 9 Stat. 519), from the state to R. C. Brinkley in 1853, from R. C. Brinkley to Hugh McMurray in 1872; that subsequently, in 1898, the heirs of Brinkley executed a deed to McMurray correcting a mistake made in a former deed of R. C. Brinkley; and that A. E. Ketchum, the only heir of McMurray, afterwards con

veyed the land to plaintiff, Berry. A nonsuit was taken in the action in March, 1900, and a new action commenced in August, 1900. The chain of title in this new action is a grant from the United States to the state, from the state to R. C. Brinkley, and conveyances from the heirs of R. C. Brinkley to plaintiff, Berry, dated January 13, 1898, and June 29, 1899. The complaint also set out that he was the owner of the land by virtue of a sale under a decree of court for nonpayment of levee taxes, and also by purchase at a sale for nonpayment of state and county taxes. On the trial objection was made to the introduction of these tax deeds on the ground that they were void on account of an insufficient description of the land, but the objection was overruled. The court permitted the plaintiff to prove the conveyance from the state to R. C. Brinkley by a transcript of the record of the state land office without any showing that the patent from the state could not be produced. The court, among other instructions given at request of plaintiff, told the jury, in substance, that they should find for the plaintiff unless there was seven years' continuous adverse possession by the defendant before August 22, 1898, the time of the bringing of the first suit, and refused the request of the defendant that the statute of limitations did not stop until the 25th of August, 1900, the date of the bringing of the last action. There was a verdict and judgment in favor of the plaintiff, and defendant appealed.

W. Gorman and N. W. Norton, for appellant. John Gatling, for appellee.

RIDDICK, J. (after stating the facts). This is an appeal by the defendant from a judgment rendered against her in an action of ejectment for the recovery of 6% acres of land. There had been a prior action for the same land, which was commenced on the 22d of August, 1900, and in which a nonsuit was taken in March, 1900. Afterwards the present action was begun on the 25th of August, 1900. In the first action plaintiff relied on a conveyance from Brinkley to McMurray and one from the heir of McMurray to plaintiff. After the commencement of the first action plaintiff procured deeds from the heirs of Brinkley to himself. In the second action he does not refer to the conveyance from Brinkley to McMurray, but relies on the conveyance from the heirs of Brinkley to himself. Defendant pleaded the statute of limitations, and her counsel contend that the two suits above referred to were based on different causes of action, and that the statute of limitations did not stop running until the commencement of the last action. The mere fact that plaintiff did not set out his chain of title in one or the other of these suits would, we think, on this point, be immaterial if he was in fact the owner of and seeking to sustain the same title in each action. But the contention of defendant is

sound if 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 ac tion, 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. Davis, 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

Rehearing pending.

es, sold and conveyed the land to plaintiff, described the land as "E. pt. S. E. 4 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.

HOT SPRINGS ST. R. CO. v. 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 throughout 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 located 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

ditch and the car track. The ditch was from 2 to 4 feet deep, and from 4 to 6 feet wide. One of the mules to appellee's wagon was afraid of the cars, and would shy or turn from them whenever he saw them. One of appellant's cars came, meeting appellee, and was from 50 to 75 yards from him when he observed it. Being afraid that his mule would take fright at the car and throw him and his wagon into the ditch, and believing that he had ample time to cross over the railroad track to the other side of the street to a place of safety, he turned his team and drove across the track. The team and front part of the wagon passed over the track, but the back end of the wagon was struck by the car just before it got out of reach. The motorman in charge of the car saw appellee and his wagon about the time the wagon turned to cross the track, and sounded his gong; the wagon being at that time from 150 to 175 feet away from the car. The usual speed of the car was 10 or 12 miles per hour, but at that time it was traveling about half speed, and was going upgrade. A passenger on the car attracted the attention of the motorman about the time he first saw appellee 150 or 175 feet away, and handed him some money for tickets, and words were passing between the passenger and motorman, and the motorman paid no further attention to appellee or his wagon until the passenger warned him to look out or he would run into the wagon. The motorman then looked, and saw appellee crossing the track about 20 or 30 feet in front of him. The team and front part of the wagon had crossed over the track, and the back end of the wagon was still on the track. The motorman then undertook to reverse the power of the car, but made a mistake in manipulating the appliance, and did not check the speed of the car, and struck the back end of the wagon just before it left the track. The force of the collision threw appellee to the ground and inflicted on him personal injuries. The brakes to the car were in bad condition; there was too much slack in the chain, and the shoes to the brakes were worn so that sufficient pressure could not be brought against the wheels of the car to properly control the speed. The motorman discovered the defective condition of the brakes on the first trip out with the car that day, and had made seven or eight trips with the car before the accident, passing by the shops of the company on each trip. The evidence also tended to show that direct notice had been brought to the company of the defective condition of the brakes, by complaint being made by the motorman who had charge of the car the day before the accident, to the employé of the company whose duty it is to repair the cars. The motorman in charge of the car at the time of the accident did not try to apply the brakes, because he knew they were not in condition to be of use under the

circumstances, and he tried to stop the car by reversing the power. He stated that, if the brakes had been in good condition, he could and would have stopped the car before striking the wagon. The reverse lever which the motorman tried to use had also been worn until it was loose, and the motorman thought that had something to do with his not being able to properly apply the reverse lever."

E. W. Rector, for appellant. Wood & Henderson, for appellee.

HILL, C. J. (after stating the facts). The respective rights and duties of street car companies operating on public streets and persons using those streets with vehicles are fully and elaborately set forth in Hot Springs Street Railroad Co. v. Hildreth, 72 Ark. 572, 82 S. W. 245. It is wholly unnecessary-in fact, an idle task-to reiterate those principles.

The first contention made by appellant is that the evidence fails to show negligence on the part of the appellant, and that it does show contributory negligence on the part of the appellee, and consequently the court erred in not withdrawing the case from the jury. It is insisted that appellant was entitled to judgment on either of these grounds. The court is of opinion, following the Hildreth Case that there was sufficient evidence of negligence on part of the company to submit the question to the jury, particularly the negligence of the motorman, having his attention detracted from watching ahead, and in having defective braking appliances, rendering an earlier stopping of the car impossible. If the action of Charlton in not properly estimating his chance of crossing in safety be held to be contributory negligence, then the subsequent action of the motorman, especially knowing the condition of the car, presented the question of want of proper care after discovering the negligence of Charlton.

It is also insisted that the evidence establishes a settlement and payment of the amount agreed upon in satisfaction of the damages. If Charlton's testimony be true, there was no settlement binding upon him. It is true that he is contradicted, and his testimony somewhat discredited, by his admissions, yet these were all questions of fact determinable by a jury. The case should have gone to the jury, and the question remains: Was it properly sent to the jury?

The instructions are assailed upon the same grounds that similar instructions were assailed in the Hildreth Case, and the court is asked to re-examine that case, and follow the rule of the Georgia court there presented for consideration. The Hildreth Case is in accord with many previous and wellconsidered decisions of this court, and the Georgia rule shown to be contrary to the settled practice in this state. The court is