is made, provided, however, that such payment be continued for at least seven years in succession, and not less than three years after the passage of the statute.

4. TRESPASS-PLAINTIFF'S TITLE-EVIDENCEΡΑΥΜΕΝΤ OF TAXES.

In an action for trespass on lands, evidence considered, and held insufficient to show that plaintiff had paid taxes on the lands in three payments before the date of the trespass and after March 18, 1899, when Acts 1899, p. 177, No. 66, in relation to possession acquired by payment of taxes under color of title, took effect.

5. SAME-ISSUES - PAYMENT OF TAXES -ANSWER-SUFFICIENCY OF DENIAL.

Act March 18, 1899 (Acts 1899, p. 117, No. 66), provides that unimproved and uninclosed land shall be deemed to be in the possession of the person who, having color of title, shall have paid taxes for at least seven years in succession, not less than three of such payments being subsequent to the passage of the statute. In an action for trespass on lands plaintiff alleged the payment of taxes for 12 years, and the answer denied that plaintiff was the owner or had possession of the lands, though the answer did not specifically deny the payment of the taxes. Held, that the denial was sufficient to put in issue the payment of the taxes in the absence of any motion at the proper time for a more specific denial.

In actions for trespass on land it is not necessary for the complainant to deraign title, but only necessary for him to allege that he is the owner or in possession.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trespass, § 81.]

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

Action by B. W. Greer against C. A. Price. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action brought by appellee, B. W. Greer, against appellant, C. A. Price, for trespass upon several tracts of lands claimed by appellee, aggregating 495.97 acres, by cutting timber therefrom. The complaint alleges that the plaintiff is the owner of the lands in question, and that he "has been in the possession of the same and paying the taxes assessed against said lands continuously for the past twelve years." Damages are laid in the sum of $3,000. The defendant answered, admitting that he cut the timber on the land, and admitting that plaintiff was the owner of the land at the time of the suit, but denied that plaintiff was the owner of the land at the time the timber was cut, and denied "that the plaintiff is in possession of said land, and has been in such possession for the past twelve years." The jury returned a verdict in favor of the plaintiff, and assessed the damages at $1,250, and the defendant appealed.

J. G. Holland and J. W. & M. House, for appellant. S. Brundidge, Jr., for appellee.

McCULLOCH, J. (after stating the facts). In actions for trespass upon land it devolves upon the plaintiff, before he can maintain the action, to show either title or possession. Mere color of title is not suffi

cient. The plaintiff in the trial below introduced a chain of title deeds conveying the lands in question, running back to a deed from one John A. Cole in 1881. These deeds constituted color of title, but do not show a perfect chain of title. He also introduced a deed, dated February 7, 1872, from John A. Cole, as clerk of White county, to John A. Cole (whether the grantor and grantee is the same individual does not appear), conveying part of the lands (295.97 acres) pursuant to sale for taxes. The validity of the tax sale and appellee's title thereunder is attacked by appellant, but we need not determine the question of its validity, inasmuch as the proof does not show the amount of timber cut from each tract, and, as the verdict of the jury fixes the gross value of the timber cut from all the land, the case must be reversed, unless the plaintiff has shown his right to recover for the timber cut from the other tracts. The burden was upon appellee to prove his title or possession. It is not claimed that he had actual possession, the lands being wild and unoccupied, but he sought to establish title to and possession of all the lands by showing compliance with the act of March 18, 1899 (Acts 1899, p. 117, No. 66), in paying taxes.

This court, construing that statute in the case of Towson v. Denson, 86 S. W. 661, held that the payment of taxes on wild and unimproved land under color of title constitutes possession for each successive year in which payment is made, provided, however, that such payments be continued for at least seven years in succession, and not less than three after the passage of the statute. The only testimony on the point was that of J. H. Greer, a brother and agent of the plaintiff, who said that he had "paid taxes on all these lands since 1891." He did not say what years he paid, nor give the dates of payments. This was sufficient to warrant the jury in finding that he paid the taxes continuously since 1891, and made the payments within the times required by law for paying taxes; but it does not authorize a finding that three payments were made before the date of the trespass and after March 18, 1899, so as to bring the case within the terms of the statute. The trespass commenced in June, 1901, and, in order to have made three tax payments before thať time, he must have paid for the years 1898, 1899, and 1900. Now, the jury could have found from this testimony that the plaintiff paid the taxes for the year 1900 on or before April 10, 1901, and for the year 1899 on or before April 10, 1900, but there was nothing on which to base a finding that he paid for the year 1898 after March 18, 1899. The taxes of that year were payable at any time from the first Monday in January to April 10, 1899, and, for aught that appears in proof, the same may have been paid before March 18, 1899. The burden was upon plaintiff to show, if such was a fact, that be

made this payment after March 18, 1899, for that was essential in order to show compliance with the terms of the statute. This being true, the evidence is insufficient to sustain the verdict as to title or possession of the plaintiff, and the same must be set aside, and a new trial granted.

It is urged by counsel for appellee that the allegation of tax payments by the plaintiff is not denied in the answer, and was not an issue in the trial below; but we think he is mistaken. It is true that the defendant's answer does not specifically deny the payment of taxes by the plaintiff, but it does deny that the plaintiff was the owner or has had possession of the land. If a more specific denial was to be required, it should have been pointed out by motion at the proper time. In actions for trespass upon real estate it is not necessary for the plaintiff in his complaint to deraign title. necessary for him to allege that he is the owner or in possession. All other allegations of ownership of a more specific character may be treated as surplusage, and the defendant need not deny them.

The title and possession of plaintiff was, we think, denied with sufficient certainty to put the same in issue, and, as the testimony failed to establish either, the judgment must be reversed, and the cause remanded for a new trial.

BATTLE, J., absent.

HENRY V. BEAL & DOYLE DRY GOODS CO.

(Supreme Court of Arkansas. July 22, 1905.) BILL OF EXCEPTIONS-FAILURE TO FILE IN TIME-EFFECT.

A bill of exceptions not filed within the time allowed by the trial court will not be noticed on appeal.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2404, 2405.]

Appeal from Circuit Court, Howard County; James S. Steele, Judge.

Action by the Beal & Doyle Dry Goods Company against J. E. Henry, in which Etta Henry filed an interplea. From a judgment for plaintiff, the interpleader appeals. Affirmed.

Robertson & Martineau, for appellant. Feazel & Bishop, for appellee.

MCCULLOCH, J. Appellant's bill of exceptions was not filed within the time allowed by the trial court, so we cannot take notice of same, and there is nothing before us to show any error in proceedings or rulings of the circuit court. The motion for new trial was overruled on February 11, 1903, and leave was granted to appellant to file her bill of exceptions within 90 days from that date. The same was signed by the presiding judge on May 13th, and filed in the

office of the clerk on May 14, 1903. This was too late, being two days over the time allowed.

Judgment affirmed.

TERRY v. CLARK et al. (Supreme Court of Arkansas. July 29, 1905.) EVIDENCE-HEARSAY.

On an issue of whether plaintiff or her husband owned household goods attached by defendants, testimony of the county clerk that the husband, in making his assessment of household goods, stated that he had been at considerable expense refurnishing his house, and that he increased his assessment $500, was hearsay, and incompetent, under Kirby's Dig. § 3095, subd. 4, declaring the husband and wife incompetent to testify for or against each other as to confidential communications, but competent to testify in regard to any business transacted by one for the other.

Appeal from Circuit Court, Hempstead County; Joel D. Conway, Judge.

Action by Mrs. Elizabeth Terry against A. B. Clark and others. From a judgment for defendants, plaintiff appeals. Reversed. Feazel & Bishop, for appellant. Jas. H. McCollum, for appellees.

WOOD, J. This suit is over certain household furniture claimed by appellant, and which had been attached by appellee Clark, and was held by the officers for him as the property of one D. P. Terry, the attachment debtor. The appellant was the wife of D. P. Terry. The question of fact as to whether Mrs. Terry or her husband owned the property attached was properly submitted to the jury, and we would not disturb the verdict upon the evidence in the record. The court erred, however, in permitting one A. J. Forgy to testify to a conversation he had with D. P. Terry at the time Terry assessed his property in 1901. Forgy was the clerk of the county, and had custody of the assessment rolls, and testified that D. P. Terry made the assessment of household goods before him in 1901. He was asked to "state to the jury, in that conversation had with Mr. Terry, if he claimed the household goods in his residence." The witness answered: "He stated this to me; he advised with me; he asked me, before he made his assessment, as to whether he had to assess it both years. He stated he had been to a considerable expense remodeling his house and refurnishing his house, and he wanted to know if his house improvements would be subject to taxation. I told him it would. He made an assessment at an increase of $500 on that item." This testimony was objected to by the appellant, and her objection was overruled. This testimony was clearly hearsay, and incompetent. Section 3095, Kirby's Dig. subd. 4; Collins v. Mack, 31 Ark. 684; Watkins v. Turner, 34 Ark. 663. This testimony was highly prejudicial, for it tended to prove that Terry was the owner of the property in

controversy, and was probably considered by the jury as the strongest testimony on that point. We cannot tell. It was very damaging testimony on the very question at issue between appellant and appellees.

For this error the judgment is reversed, and the cause remanded for a new trial.

WALKER v. LOUIS-WERNER SAWMILL CO.

(Supreme Court of Arkansas.

July 29, 1903.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-NEGLIGENCE-PROXIMATE CAUSE.

The negligence of a railway in running its engine without a headlight and without a lantern, and in starting the same without signaling, cannot be deemed the proximate cause of injury to an employé who left the engine to get sand, and who, while walking by the side of the engine, fell down with his hand across the rail, and was injured, in the absence of evidence that the headlight, if burning, would have lighted the place where the employé was walking, or that the failure of the railroad to give the signal or to furnish a lantern caused the employé to stumble and fall, or that the fall was not the result of an accidental mishap or clumsiness of the employé.

2. SAME-BURDEN OF PROOF-INFERENCES.

In an action for injuries to a servant the burden of showing that defendant's negligence was the proximate cause of the injury is on plaintiff, and where the evidence leaves the whole matter to conjecture the inference from the undisputed evidence most favorable to defendant must be taken.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 879, 897.] 3. SAME CONTRIBUTORY NEGLIGENCE.

A servant on a railroad engine, who carelessly failed to discover that there was plenty of sand in the sand bucket, and got off the engine in the dark, and without a lantern, to get sand, in consequence of which he fell and was injured by having his hand run over by the engine, was guilty of contributory negligence.

Appeal from Circuit Court, Nevada County; Joel D. Conway, Judge.

Action by Lee Walker against the LouisWerner Sawmill Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The testimony of plaintiff referred to in the statement of the court, and on which the opinion is based, is as follows: "I am twenty years old. The injury occurred November 22, 1901, between 8 and 9 o'clock at night, after dark. The train stopped to make a coupling over a hill and to get sand. There was some trouble in making the coupling, and I went back to help. When I got to the back end of the engine, Mr. Norwood, the brakeman, told me not to come in, as I had no lantern, as it was dan gerous, and I was likely to get hurt. I started round to the front end, and before I got there, and when I was in about four feet of my place, the engine started." It was admitted at the trial that the Sayre Lumber Company was the local name of the Louis-Werner Sawmill Company, the defendant. The witness, continuing, said: "I had worked some

time the first of the year on the railroad, and had worked on the train about a month, when they laid me off for about a week. I had a lantern when I worked on the train the first time. They kept all lanterns at the commissary, and each man stood good for his own lantern. When I quit I took my lantern back. The second time when I went to work I applied to the bookkeeper for a lantern. He had charge of the affairs of the company at that point. I also spoke to Mr. Sparkman about it the morning I got hurt. I met him, and asked him if I could get a lantern, and he told me he did not know. I had been out a few trips without a lantern. Mr. Painter told me that he would have some in a few weeks, but that he had none at that time. We usually made two trips over the road each day. We seldom made three trips. The day I got hurt we were coming in on our second trip. We usually got in in the daytime, but sometimes would be after dark. They had a sand box on the engine, but did not use it. The sand was kept in a bucket sitting on the pilot between myself and the other brakeman. When the train stopped this night I got off to get sand. Mr. Norwood went back to make the coupling. When he told me not to come in, I went to get on the front end of the engine, not expecting them to start before they gave the signal. The engineer was between Norwood and myself on the opposite side. They had three lanterns on the train, two of which were in the cab, to see about the steam and water. There were four men on the train. The engineer, fireman, and Mr. Norwood each had a lantern. Each man, when he got his lantern, was charged with it, and if he returned it he was given credit for it. Tulley Norwood got the lantern which I turned in when I was laid off the first time. The headlight was not lighted the night I was injured, because there was no oil, and had not been lighted for four or five days, and during this time there was no oil in the headlight. Garland Nichols had charge of the train, and gave orders for running it. The train was loaded with logs. They were flat cars, called 'skeleton cars,' with no steps on them. The brakeman generally rode on the front end coming in. The front end of the engine had an 8x10 piece to sit on and the board for our feet. Norwood sat on one end and I on the other, and sat close to the rail, with the bucket between us, and sanded the track with our hands. We got the sand off the side of the road. I got no sand that night, as there was plenty in the bucket. They gave no signal, but just opened the throttle and started, and when I was within four feet of my place, walking by the side of the engine, I fell down, and my left hand fell across the rail. It had rained that morning, and it was a dark night. My hand was so badly mashed that it was amputated, and I was laid up about a month. Before I got hurt I received $1.50 a day. Since that time

night watching is about the only thing that I can do. I paid no doctor's bill, except that I contributed fifty cents a month out of my wages for a doctor. I suffer some yet, as I imagine that the fingers to my hand which has been cut off hurt me. When I was notified not to attempt to make the coupling, I started back to my place, and had gone about twenty feet, I reckon, when the engine started. I had not stopped, and was just going a common gait. Nichols, I think, made the coupling. I was walking towards the front of the engine, and expected the signal before the train started; but I did not stop.. Mr. Norwood had his lantern in his hand. I did not see him when I got hurt. I think he had gotten on the engine, but whether in front or not I do not know. His lantern had been sitting there on this piece of timber. Something was said about lighting the headlight. I remember hearing the engineer say that night he had no oil. He said this when we started over the hill the first time and at the time we lighted the lantern. I had worked on this train the first time about three weeks, but I worked on the railroad with Mr. Owens the first of the year."

On July 29, 1902, plaintiff filed his amended and substituted complaint, in which he alleged that he was a minor, and sued by D. C. Walker, his next friend, and that, on the 22d day of November, 1901, he was in the employ of the defendant as a common workman, assisting in running one of its trains, which train was engaged principally in hauling logs to the mill owned by the defendant at Sayre, Ark.; that he had no experience in running trains or engines, which was well known to the defendant; that the engine upon and about which he was placed to work was not provided with an apparatus with which to sand the track, had no headlight, and was not provided with lanterns; that plaintiff was set to work, while said train was running, to sand the track, it be ing his duty to pour sand on the track with a can from a place upon the pilot of the engine; that the defendant failed to provide a safe place for him to sit, and that on the night the injury occurred, after dark, the train stopped, and plaintiff left his position on the pilot to assist in making a coupling and to procure sand; that the engine had no headlight, and plaintiff was not provided with a lantern; that there was no light about the engine except one lantern in the cab, and defendant kept no lookout, and could not have seen plaintiff if he had kept a lookout, on account of the failure of the defendant to provide lights; that while plaintiff was in the discharge of his duty the engineer, who was also a conductor, and in charge of the train, negligently and without warning started the train; that the defendant had failed to provide a safe and sound roadbed, in that the ties were of uneven lengths, some six and some eight feet long, and that in attempting to regain his position on account of

having no light and the insecure place he was required to work and of the uneven ties, he stumbled over said uneven ties, and fell with his hand upon the track, and was so badly injured that amputation of his hand became necessary to save his life; that the defendant gave him no warning of the unsound and unsafe condition of the engine and track, and that by reason of youth and inexperience he was not aware of the danger to which he was exposed; that by reason of his injury his ability to earn a living had been greatly and permanently decreased; that he suffered great pain, to his damage in the sum of $5,000. The answer denied the material allegations of the complaint and pleaded contributory negligence. As the conclusion of the court is based upon the testimony of appellant himself, the reporter will set it out in full. The circuit court directed verdict for appellee.

Geo. R. Haynie and McRae & Tompkins, for appellant. Gaughan & Sifford, for appellee.

WOOD, J. (after stating the facts). Conceding that the appellee was guilty of negligence, which we think the proof tends to show, still there is nothing to show that such negligence was the proximate cause of the injury, or concurred in producing it; and, if it did, then it is clear from appellant's testimony that his own negligence also contributed. While appellant testifies that the night was dark, and that the headlight was not burning, and that he had no lantern, and that no signal was given before starting, still it does not appear that if the headlight had been burning it would have lighted the place where appellant was walking when he was injured. Nor does appellant say that the failure to give the signal or to furnish him a lantern caused him to stumble and fall. He says, "When I was within four feet of my place, walking by the side of the engine, I fell down, and my left hand fell across the rail." He does not say that it was caused by the darkness or the starting of the engine without signal. We know that his injury was caused by his falling, but no one can say from the evidence what was the cause of his falling. The jury were not at liberty to find as a fact that the appellant fell because he could not see, or because the engine started without a signal. If such had been the fact, appellant might have stated it as a fact. If such was the fact, appellant knew it better than any one else. It was not shown that the place where appellant was walking was rough. For aught that the proof shows to the contrary, appellant's fall may have been the result of accidental misstep, not caused by any of the things charged as negligence in the company. It might just as well have been attributed to some inherent clumsiness or physical defect in appellant as to any other cause. The whole matter was left to conjecture, and in such

case the inference from the undisputed evidence most favorable to appellee must be taken, for appellant has the burden.

Again, it appears that appellant did not get off to help make the coupling, but to get sand. He says, "When the train stopped this night, I got off to get sand." True, after he had gotten off "to get sand," finding that no sand was needed, he started to assist in making the coupling, but was told that he was not needed for that, and was warned to "keep out," as the place was dangerous. It appears that he did not discover that the bucket contained "plenty of sand" until he was off the engine. "I didn't get any sand; they had plenty to go over the hill," he says. Again, he says, "I got off, and saw there was enough sand in the bucket." Then he went around to see about the trouble in coupling. Now, it was shown that he sat on one end of a plank on the front of the engine, and another brakeman sat on the other, and there was a sand bucket between them from which they each sanded the track. The bucket was about "two or three feet" from appellant, and he could just as easily have discovered that it had "plenty of sand" before he got off as afterwards; yet he says he "got off to get sand," and "as quick as he got off he saw he had plenty of sand." "If he had noticed he would have known" that there was "plenty of sand in the bucket." It conclusively appears that the carelessness of appellant himself in not discovering that there was plenty of sand in the bucket was the cause of his getting off, and, if he had not left the engine to get sand, he would not have been injured, of course. He was guilty, by his own undisputed evidence, of contributory negligence. The court did not err. be affirmed.

BATTLE, J., absent.

Let the judgment

ST. LOUIS, I. M. & S. RY. CO. v. HITT et al. (Supreme Court of Arkansas. July 29, 1905.) RAILROADS CROSSING ACCIDENT-CONTRIBUTORY NEGLIGENCE.

Where a brakeman standing at a crossing, which was blocked by a standing freight train, told plaintiffs, who were waiting to drive over the crossing, that it would soon be clear, and when the train cleared the crossing the brakeman was standing near by and in a position where he could better see the tracks than plaintiffs could, plaintiffs could take into consideration that the brakeman was in a favorable position to see any danger, and would doubtless give them warning thereof.

Battle and Riddick, JJ., dissenting.

On rehearing. Motion denied.

For former opinion, see 88 S. W. 908, 911. HILL, C. J. In their brief on motion for rehearing counsel for the appellant challenges the correctness of various statements in the "statement by the court," and also raise anew questions of law determined on the former hearing. The statement by the court does not purport to decide any conflicts in

the evidence, nor detail the testimony of the witnesses, but merely to state facts deducible from the evidence most favorable to appellees in order to test the sufficiency of them to sustain the verdict.

1. The first statement challenged is that the train on the side track was 1,200 feet long. They quote from the engineer in charge of it to the effect that he had only a couple of cars attached to the engine; but further in his evidence he showed he was going back to couple to the rest of the train, and that it altogether had about 20 cars, and that their average length was 60 feet, which would make the whole train 1,200 feet, as stated. As it was all between the Hitts and the main line, part on either side of the crossing, it was considered by the court as it was presented to the Hitts.

2. The next statement challenged is this: "They started to drive across slowly. A brakeman at the pilot of the engine was standing on the ground, and they had passed in front of him, not more than twenty-five feet away. No watchman was kept at the crossing. The brakeman made no effort to stop the wagon, and he knew the passenger train was coming." There is some negative testimony to the effect that there was no hallooing to the Hitts by the brakeman, but the court did not intend to find that as a fact deducible from the evidence, but merely that no effort to stop them was made which was known to the Hitts. The court was considering the situation entirely as viewed by the Hitts when they started to drive across, and was not sustaining any negligence against the company predicated on the dereliction of the brakeman to stop the Hitts. The court has no doubt that the truth was exactly as stated by the brakeman, as follows: "You made no effort to get in front of the team and stop them?" "No, sir; I didn't make any effort to get in front of it.” "Did they reply to you when you hallooed to them?" "No, sir; not that I remember. Whether they noticed it or not, I can't tell.” Counsel argue the point as if the court was predicating negligence against the appellant on the ground that the brakeman made no effort to stop them, and call attention to the abundant evidence of his and other cries to them just before they were struck. As stated, the court did not consider the conduct of the brakeman in considering evidence of the negligence of the appellant, and was considering the situation of the brakeman and his actions, so far as known to the Hitts, in determining whether or not they were guilty of contributory negligence per se in attempting to make the crossing. The brakeman had a few minutes before, when the crossing was blocked by the train, told them it would soon be cleared, and it was soon clear ed, and he was seen standing near by, and in a position where he could better see and hear than they could. In determining whether the clearing of the way was an invitation to