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between the counters on the left-hand side. be disturbed, in the absence of abuse by the I went behind these counters in an upright

trial court of its discretion. manner, as straight as I could walk, and, as

4. APPEAL-NECESSITY FOR MOTION FOR NEW

TRIAL-STATEMENT OF GROUNDS. I got about halfway between the counters,

A question as to rendering a personal judgDr. Magness came out from behind the pre- ment against a defendant, which was not made scription case. He had a bottle of medi- a ground for a new trial, cannot be considered cine in his hand, and from his appearance

on appeal. he was reading the directions on the label.

Appeal from Circuit Court, Hot Spring I started toward him, and when I got in

County; Alexander M. Duffie, Judge. about 10 feet of him he saw me, and as he

Action by A. H. McMillan against the Hot did so he went for his gun. Up to that time

Springs Railway Company and another. my right hand was by my side. When I

From a judgment for plaintiff, defendants apsaw him reach for his gun I knew the time

peal. Affirmed. had arrived, and that one of us was going to die. I pulled my gun, and while he was

This suit was brought by McMillan against looking at me I shot him in the lip. I shot

the Hot Springs Railway Company to rehim twice more, while he was standing up

cover damages for the crushing and mang. right, over the heart. At that he fell over

ling of his left hand. McMillan was a brakeon his back, and while he was falling he

man of the Hot Springs Railway Company, stumbled over & chair, which turned his

and his injury was caused while he was right side toward me while he was falling,

coupling cars at Butterfield. He charged and I shot him twice more. That man's back

that the liability of the railway company was never to me at any moment of the shoot. grew out of negligence in failing to provide ing. I did not make any step toward him,

him with suitable and safe appliances with nor did I shoot him while on the floor. I shot

which to make the coupling, in this: that him to protect my life. He had ruined my

the holes in the drawhead of one of the cars home and had threatened to kill me, and I

were out of shape, and the pin furnished to believed that he would do it.”

make the coupling was too large to pass This testimony reveals the settled purpose

readily through said holes. Plaintiff charged of appellant, from the time he found Dr.

that by reason of the imperfect, unsafe, and Magness in his home, to seek and take his

dangerous condition of these appliances his life. About two days intervened, the appel

hand was caught between the drawheads lant not wavering one moment in his deter

while he was attempting to make the coupmination. All the eyewitnesses save appel-ling, and badly crushed and mangled; that lant show that appellant shot the deceased in

plaintiff was in the discharge of his duty as the back, and when he was apparently una

brakeman, and did not know of, and by the ware of appellant's presence. The pathetic

use of ordinary care could not bave discovportrayal of the deplorable circumstances

ered, the dangerous condition of such appliwhich destroyed appellant's home and hap

ances. Damages were laid at $25,000. piness, and caused him to take the life of the

The Choctaw, Oklahoma & Gulf Railway wicked author of it all, can but elicit the pro

Company is made defendant because since found sympathy of every man who loves vir

the injury it had purchased the Hot Springs tue and appreciates conjugal fidelity and do

Railroad and was operating it when suit mestic peace. But nevertheless the law, in

was brought. The Hot Springs Railway its wisdom, defines the taking of human life

Company answered, setting up the following under the circumstances detailed by appel- alleged release in accord and satisfaction, lant as murder, and, so long as it is thus

viz.: written, courts and jurors must obey its

“In consideration of the sum of Three plain mandate.

Hundred Forty-six and 05-100 Dollars Aflirm.

($346.05) paid to me by the Hot Springs Railroad Company, and the agreement of said Company to pay me Fifty Dollars ($50.00) in

addition to the above sum, and to employ HOT SPRINGS RY. CO. et al. v. MCMILLAN. me in such capacity as I may be able to (Supreme Court of Arkansas. June 17, 1905.) work for a period of six months from the 1. APPEAL-FINDINGS-CONCLUSIVENESS. date hereof at a salary of not less than Fifty

A finding on conflicting evidence on an issue Dollars ($50.00) per month, I hereby release of fraud in the execution of a release, submitted

said Company from any and all liability it under proper instructions, will not be disturbed on appeal.

may be under to me for and on account of 2. RELEASE-FRAUD-EVIDENCE OF CUSTOM. an injury received by me while working as

Where a release was executed to a railroad a brakeman on the Railroad of said Comcompany by an injured employé, proof that the

pany on or about the 2nd of February, 1900. recitals as to the consideration were false, by showing that the amounts named therein were

"Witness my hand and seal October 1, already due according to the custom of the com

1900. pany in dealing with disabled employés, was “[Signed]

A. H. McMillan." admissible, as establishing that the release was It also denied all the material allegations fraudulent.

of the complaint, and set up contributory 3. NEW TRIAL-REVIEW.

The refusal of a motion for a new trial negligence. setting up newly discovered evidence will not The Choctaw, Oklahoma & Gulf Railroad Company filed a separate answer, denying lease was submitted to the jury upon proper in detail all of the allegations of the com- instructions; but it was ably contended in plaint, and admitting its purchase of the Hot oral argument and in brief that the evidence Springs Railroad, and that it was at that on this issue was not legally sufficient to time in the possession of and operating the support the verdict. We have carefully exsame, but denying that, as purchaser or oth- amined the record on this question of fact, erwise, it assumed all or any of the debts and have reached the conclusion that there and liabilities of the Hot Springs Railroad was evidence to support the verdict. We do Company, and denying that it was liable to not hesitate to say that, were it the province the plaintiff for said alleged injury.

of this court to pass upon the weight of the The plaintiff replied to that part of the evidence and the credibility of witnesses, we answer of the Hot Springs Railroad Com- would find in favor of appellants on the pany setting up a release as follows: "Plain- question of the execution of the release. tiff alleges that he never at any time agreed But according to the rule long ago estabto release the defendant Hot Springs Rail- lished by this court, since followed, and reroad Company from the damages resulting cently approved in many cases, it is the exto him from the injury complained of here- clusive province of the jury to determine disin; that it is true the said defendant Hot puted questions of fact. 1 Crawford's Dig. Springs Railroad Company presented the p. 146; Ry. v. Byrne, Adm'r, etc., 73 Ark. plaintiff a writing containing a full release 84 S. W. 469; Ry. V. Wilson, 70 Ark. to said company from such damages, but 136, 66 S. W. 661, 91 Am. St. Rep. 74; Ry. v. plaintiff refused to make or sign such re Kilpatrick, 67 Ark. 47, 54 S. W. 971; Catlett lease; that at the time said writing was pre- v. Ry., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. sented to him another writing was also ex- Rep. 254. The testimony of McMillan cerhibited to him, which was simply a receipt tainly tends to establish the allegations of for money which had been paid to him by his reply to the answer of the Hot Springs said conipany during the time he was dis- Railway Company on the subject of the reabled from work on account of said injuries, lease. While his testimony in regard to the as salary, that had accumulated to him dur- preparation and execution of the release is ing such time; that it was customary for contradicted in every material essential by said company to allow the time of its em- the positive testimony of witnesses for apployés who were disabled from work by in- pellants, and while the testimony of McMiljuries received while in the discharge of lan on this question appears to us to be intheir duty to continue, and to pay such em- herently weak and contradictory, yet, unless ployés for such lost time without any de- we overturn a long line of decisions of this duction, and that said company paid plaintiff court, we must hold that all these were matsaid salary during the time he was unable ters for the jury to settle, and, as they were to work, and in that way said sums of properly instructed, their decision is final. $346.05 and $50 were paid to plaintiff, and 2. The court, over the objection of appelthe writing that plaintiff signed or intended lants, permitted the plaintiff to testify in reto sign was the receipt for said money, and gard to the custom of the Hot Springs Railplaintiff says that, if said company has any way Company to continue the wages of its such paper with his name thereto as that

employés while they were disabled from copy of which is exhibited with said answer, work on account of injuries received in the his signature thereto was obtained by and

service. This testimony was proper. Apthrough the fraudulent acts of Fred A. Bill, pellee was contending that the purported rethe agent and employé of said company, at lease was fraudulent. It recited a considerathe office of John M. Moore, in the city of tion of $346.05 as paid, and $50 in addition Little Rock, in substituting said writing to be paid. These recitals conveyed the imwhich he had refused to sign for the receipt, pression that the railway company had paid which he had agreed to sign, and which he and were to pay the amounts named as part intended, and believed he was signing." consideration for the execution of the re

Motions to strike this reply were overruled. lease. Proof that these recitals were false

Upon the issues thus formed the cause by showing that these amounts were already was presented to the jury, which, after hear- due him, according to the custom of the coming the evidence and the instructions of the pany in dealing with its disabled employés, court, returned a verdict in favor of McMil

certainly tended to establish the contention lan for $5,000. Judgment was entered ac- of appellee that the alleged release was cordingly, and this appeal taken.

fraudulent, and that when he signed same W. B. Smith, for appellant Hot Springs R.

he did so under the impression that he was Co. E. B. Peirce and T. S. Buzbee, for ap

signing a receipt for money due, and which pellant Choctaw, O. & G. R. Co. Wood & the company had paid according to its cusHenderson, for appellee.

tom, and not as a part consideration for a re

lease. The testimony was germane to the WOOD, J. (after stating the facts). 1. It contention of appellee as to the fraudulent is conceded by the learned counsel for ap- execution of the release. Moreover, appelpellants that the question of whether or not lants have nowhere denied that such was there was fraud in the execution of the re- the custom, and they do not now contend, as

we understand, that the $346.05 and the $50, the court on the sufficiency of the abstract of were paid as part consideration for the exe- appellant in a motion to dismiss for noncomcution of the release. Therefore we do not pliance with rule 9. The court cannot take discover any possible prejudice to appellants time to read the record and briefs in advance by the introduction of the testimony.

of submission to settle questions determina3. The alleged negligence of the appellant ble in the trial, and confines its ruling to the Hot Springs Railway in failing to exercise matters appearing in the motion and reordinary care to provide McMillan safe ap- sponse thereto. The appellee says that the pliances, and the alleged contributory negli- five witnesses testified for appellant on magence of McMillan in failing to exercise or- terial issues and nineteen testified on behalf dinary care in the use of the appliances fur- of appellee, and that the testimony is manished him, were questions of fact properly terial and bearing on the issues, and that submitted to the jury, and their verdict is brought out by appellee on cross-examination supported by legally sufficient evidence. of appellant's witnesses goes to sustain the

4. It was within the sound discretion of verdict and justify the instructions, and that the trial court to refuse the motion for new appellant omits this testimony and all refertrial setting up newly discovered evidence. ence to it except an excerpt from appellant's Anderson v. State, 41 Ark. 229; Armstrong testimony. The appellant responds that he v. State, 54 Ark. 370, 15 S. W. 1036; Ips. Co. has abstracted the pleadings and all other v. Parrish, 66 Ark, 612, 52 S. W. 438; Ry. V. matters in the record necessary to a full unByrne, Adm'r, 73 Ark. 84 S. W. 409. derstanding of all questions presented to the We find no abuse of the court's discretion in court. It appears that the instructions of this case. On the contrary, we think it was the trial court are the matters here complainproperly exercised.

ed of, and appellant, having set them forth 5. The contention that the court erred in fully, says this testimony is immaterial, and rendering a personal judgment against ap- most of it was brought out by appellee, and pellant Choctaw, Oklahoma & Gulf Railroad that it is its duty to abstract its own testiCompany was not made a ground of the mo- mony under the rule. In this appellant is tion for new trial. Such question will not mistaken. He must abstract the entire case be considered here for the first time.

so far as it is material to the issues raised Affirmed.

on appeal, and the rules do not contemplate that each side abstract its own version of the case, but that the appellant abstract all that

is necessary. In case of difference of opinBEAVERS V. SECURITY MUT. INS. CO.

ion as to what is necessary to a full deter. (Supreme Court of Arkansas. June 24, 1905.)

mination of the issues presented, the appel. 1. APPEAL-ABSTRACT-DUTY OF APPELLANT. lee can abstract such further matters as he Sup. Ot, rule 9, relative to abstracting the

sees proper. The substance of the evidence case, does not contemplate that each party abstract his own testimony, but imposes on ap

is always material in testing the instructions, pellant the duty of abstracting the entire case, and, if it is not set out, then the only quesso far as material to the issues raised on ap- tion on the instructions before the court is peal; and in case of difference of opinion as to what is necessary for a determination of the

whether any facts would justify the instrucissues, appellant may abstract what he deems tions. It does not by any means follow that necessary, referring to testimony which he con- the appellant must set out all of a vast volsiders immaterial by giving the facts which it

ume of testimony. On the contrary, the tends to prove and the places in the record where it may be found, and leave it to appel

rules contemplate an abridgment of it, erlee to abstract further matters if he sees proper. cept when its sufficiency is raised; but it is 2. SAME-REVIEW OF INSTRUCTIONS-MATE- necessary to set out the substance of all matRIALITY OF TESTIMONY.

ters to which testimony was adduced in order In order to test the propriety of instructions, otherwise than as abstract propositions

to properly determine whether the instrucof law, the substance of the evidence is mate- tions are correct. If counsel regards this rial, and must be incorporated in appellant's testimony as immaterial, he can dispose of it abstract.

in a very short way by stating that evidence (Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 2933.)

was adduced tending to prove certain facts,

and give appropriate references to the witAppeal from Circuit Court, Yell County ;

nesses and the pages of the record where William L. Morse, Judge.

such testimony may be found. Then, if apAction by one Beavers against the Securi

pellee conceives that this statement of the efty Mutual Insurance Company. On motion fect of the testimony is not full enough, or to dismiss. Denied on condition of filing ad

not accurate, it is his duty to abstract so ditional abstract.

much of it as he may deem necessary to preR. C. Bullock, for appellant. Murphy & sent his view of it. Appellant offers, if in Mehaffy, for appellee.

the opinion of the court his abstract is not

sufficient, to file an additional one; and the HILL, C. J. This case is set for July 10th, court, believing appellant bas in good faith and appellant filed abstract and brief in apt tried to comply with the rule, will not distime, and the appellee, instead of filing its miss the cause, but grant him one week in abstract and brief, has invoked the ruling of which to further abstract the case.

20, 2

along the avenue. Held, in an action for damSTEPHENS et al. v. HERRON.

ages to the market value of his lot resulting

from the operation of cars on such tracks built (Court of Civil Appeals of Texas. July 1, by defendant on such strip, that plaintiff was 1903.)

charged with notice of the reservation in the

dedication deed, and that the effect of such deed EVIDENCE-HEARSAY.

and of the deed to defendant was to confer on It was error to permit a witness to tes

defendant the right to use its right of way for tify that a certain certificate located on the land in controversy had been given to her husband,

railway purposes, restricted only by the right

of the public to the reasonable use of the and so became his separate property, where it

avenue, and the right not to have a nuisance imwas clear that she was testifying to what her

posed. husband had told her.

2. SAME_CONSTRUCTION. (Ed. Note.—For cases in point, see vol. 20,

The legal effect of the deeds was a quesCent. Dig. Evidence, § 1178.)

tion for the court. Appeal from District Court, Stonewall 3. NUISANCE_WHAT CONSTITUTES. County; H. R. Jones, Judge.

The mere imposition of more railway

tracks, or the increased use of the tracks beAction between B. B. Herron and Norman

yond what may originally have been thought H. Stephens and others. From the judgment probable, resulting from the location of defendthe latter appeal. Reversed.

ant's depot on land acquired by it adjoining the See 87 S. W. 326, 1144.

avenue, did not constitute a nuisance.

4. SAME-ACTION FOR DAMAGES. Fiset, Miller & McClendon, for appellants. In the absence of allegation and proof W. J. Arrington, Crudgington & Penix, and of such use of the avenue as constituted a nuiTheodore Mock, for appellee.

sance, plaintiff could recover for such injury only as resulted to his property from the erec

tion of a depot and the operation of defendant's STEPHENS, J. For a statement of the railroad on land not embraced within the avecase see certificate quoted in opinion of Su

nue. preme Court. Stephens v. Herron, 87 S. W. Appeal from District Court, Hardeman 326, 12 Tex. Ct. Rep. 1007. The court erred

County; S. P. Huff, Judge. in excluding the deed therein mentioned from

Action by R. D. Dunham against the OklaTrumbull and wife, through E. Lucien homa City & Texas Railroad Company. Ritchie, to Jane Dunham, since the two ob- Judgment for plaintiff, and defendant apjections made to it were clearly untenable.

peals. Reversed. The court also erred in permitting appellee

C. H. Yoakum and D. E. Decker, for apto prove by Mrs. Trumbull, over the objection that the testimony was hearsay and a con

pellant. Muse & Allen and L. H. Mathis,

for appellee. clusion of the witness, that the certificates located on the land in controversy had been given to her husband, and had thus become

CONNER, C. J. In July, 1887, Gen. G. M.

Dodge was the owner of several hundred his separate property. It is clear from her

acres of land traversed by the Ft. Worth & deposition as a whole that she was testifying to what her husband had told her, although

Denver City Railway Company, and caused

to be made a map or plat thereof for the proshe claimed to know it herself.

posed town of Quanah. The plat was reThe judgment is therefore reversed, and the cause remanded for a new trial.

corded, showing the streets running east and west to be 60 feet in width, and parallel with the Denver Railway, and those running north and south to be 80 feet in width, with

the exception of McClelland avenue, which OKLAHOMA CITY & T. R. CO. v. DUN

was 100 feet. The plat also showed certain HAM.*

blocks of land to be reserved for public (Court of Civil Appeals of Texas. May 27, building purposes and parks, and at a point 1905.)

where McClelland avenue intersected the 1. DEDICATION DEED PLATS-RESERVATION

Denver Railway quite a body of land was OF USE OF STREETS.

reserved for railway purposes and for a With a plat of land for a town site the tank. Gen. Dodge at the time the plat was owner also recorded a dedication deed, wherein,

recorded also recorded a dedication deed, of after reserving the right to grant to any railroad a right of way over a certain avenue, he

which the following is a copy: dedicated to the public all portions of streets “Know all men by these presents: That, and alleys contiguous to or adjoining any whereas, I, G. M. Dodge, have heretofore, lots or blocks theretofore or thereafter conveyed by him; all other streets and alleys, or por

to wit, on the first day of August, A. D. 1887, tions of them, not contiguous to lots and blocks filed a map of the town of Quanah, in the conveyed, to be and remain his private prop- county of Hardeman and state of Texas, in erty, which he might replat, close up, or oc- the office of the Clerk of the county court of cupy at his option. A deed subsequently executed by him for a lot facing a street cross

said county, to be recorded in the Record of ing the avenue referred to the recorded plat, Deeds of said county together with this deed as did a deed from the grantee to plaintiff. of dedication, which is intended to be a part Later the town site owner conveyed to defend

thereof. That said Town of Quanah is sitant railroad a strip from the west side of the avenue, for right of way purposes, over and

uated immediately upon the line of the Fort

Worth & Denver City Railway upon Surveys *Rehearing denied July 1, 1905.

141, 142, 149 and 150, standing in name ' 88 S.W.-54

Waco and Northwestern Railway Co. upon for the depot. Between plaintiff's residence the official map of said Hardeman county on and the house track there was about 40 feet file in the General Land Office of the State of space, which has since the construction of Texas. And I, after reserving the right of the track been used as a passageway for to grant to any railway or railway companies the public. The passageway or street opens the right of way over Browning and Mc- into the street running east and west in Clelland Avenues, do hereby grant, give and front of plaintiff's house. dedicate to the public a highway, such por- The plaintiff filed a petition setting up tion of each and all of the streets and alleys, ownership of the lot in controversy, and aldesignated on said map, as may be contigu- leged that the defendant, by constructing ous to or adjoining any lots or adjoining any its track and depot as stated, and by operatlots or blocks of land so laid out on said map, ing cars, engines, and trains on said railway, which have been or may hereafter be con- had diminished it in its market value in the veyed by me to any other person, all other sum of $750. The defendant interposed as streets and alleys designated on said map, a defense that plaintiff purchased his lot and or portions of them, not contiguous to lots constructed his improvements with knowland blocks conveyed, are to be and remain edge that McClelland avenue would probmy private property, and may be replatted ably be used for railroad right of way, and or closed up or occupied by me at my option. that Dodge, the common source of title,

“Witness my hand this 2nd day of July, when he conveyed plaintiff's lot, reserved the A. D. 1887. G. M. Dodge."

right to grant to railway or railway compaAfter the plat and the dedication deed nies a right of way on and in said McClel. were recorded, Dodge began to sell town land avenue, and that Dodge had granted lots, and among other sales was lot 9 in such right of way to defendant. The jury block 112, upon which plaintiff in 1899 erect- were instructed that appellee was affected ed a house; having purchased the lot from with notice of the reservation in the Dodge Offut, a vendee of Dodge. In the deed from deed of dedication, and that in his purchase Dodge to Offut, in describing the lot, after of property adjacent to McClelland avenue stating lot and block number, the deed stat- he assumed the risk of whatever damages ed, “according to the map of said town of the same might sustain by reason of operatQuanab recorded in book 3 pages 171 and ing trains thereover in the "usual and cus173 deed record Hardeman Co."; this being tomary way," and such damages as would the place of record of said deed and plat. result from the construction of a track on The deed from Offut to Dunham contained a such right of way in the “usual and ordinary like reference to the plat. On June 22, 1902, way." The court further charged that if the Dodge, by deed of that date conveyed to de- Jury should "find the operations of the enfendant, Oklahoma City & Texas Railroad gines and railway on the main track along Company, a strip 56 feet in width from the in McClelland avenue in proximity to plainwest side of said McClelland avenue, in the tiff's property was not within manner confollowing language: "by the present do templated in the grant of the right of way grant, bargain, sell, convey and relinquish, | by Dodge, and that such operation contribunto said railway, its successors and assigns | uted, as alleged by plaintiff to the damages (for railroad telegraph and telephone right charged, then you may, under the evidence, of way purposes) the right of way upon, consider same in determining the damages over and along said McClelland Avenue." sustained therefrom, if any." And in a The defendant railway company about the modification of a special charge given at apsame time acquired by purchase from vari- pellant's request, also, “that the defendant ous parties the fee-simple title to 100 feet had the right to construct a main track adjoining McClelland avenue on the west through and along McClelland avenue, and side. It also obtained from the city council operate its engines and general traffic busiof the city of Quanah permission to construct ness thereon, and would not be liable to its tracks in and on McClelland avenue and plaintiff for damages in the depreciation of the 100-feet purchase strip. About April the value of his property thereby, and, 1903, defendant railway company completed should you find that switches at that point the construction of its tracks and depot, and were reasonably necessary to the operation began operating trains into Quanah. It con- of said main track so constructed, defendant structed on McClelland avenue, on the west would not be liable for damages caused 56 feet allowed from Dodge, its main track thereby; but if you find that defendant and one side track, and near to appellee's erected a depot and switchyards, if any, on residence, and between said avenue and said said avenue, and in close proximity to plainresidence, on the 100 feet purchased, defend- tiff's property, and by reason thereof a greatant erected its passenger and freight depot, er burden was placed on said avenue than and one side track, called the "house track”; was contemplated in the grant by Dodge, and the same being constructed between the that by reason thereof the main line was depot and plaintiff's residence. There was used in a manner not contemplated in the on the 100 feet between plaintiff's lot on Mc- original grant, and that there was additional Clelland avenue a residence occupied by a use in running their engines and carrying family prior to the construction of the rail- on the traffic of said defendant on said main way, which was moved out to make room line, by reason of said depot and said switch

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