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1914D, 800; Bank of Hoxie v. Hadley Mill Appeal from Circuit Court, Hot Spring ing Co., 119 Ark. 53, 177 S. W. 891.

County; W. H. Evans, Judge. The court was correct in its interpretation of the power of attorney and did not err in next of kin to Louis Lindel Brady, and by

Actions by Mrs. Hosea Brady, mother and directing a verdict for the appellees. There- Hosea Brady against the Wisconsin & Arfore let the judgment be affirmed.

kansas Lumber Company. From judgments for plaintiff in each action, defendant appeals. Judgment in first action affirmed, and in second reversed and remanded.

Henry Berger, of Malvern, and Mehaffy, WISCONSIN & ARKANSAS LUMBER CO. v. Donham & Mehaffy, of Little Rock, for apBRADY. (No. 212.)

pellant. (Supreme Court of Arkansas. March 5, 1923.)

D. D. Glover, of Malvern, for appellees. 1. Trial Omw 192—Assumption of court in charge HUMPHREYS, J. Appellee Mrs. Hosea as to fact not disputed in evidence warranted. Brady, as mother and next of kin to Louis

The assumption by the court in its charge Lindel Brady, recovered damages in Hot as to a fact undisputed by the evidence held Spring circuit court against appellants, in the warranted.

sum of $500 for injuries received by her 2. Railroads mm 350 (9)-Negligence in backing child; and appellee Hosea Brady recovered cars over crossing without warning held for damages against said appellants in the sum jury.

of $50 for injuries to his automobile, on acIn actions for personal injuries and damages count of alleged negligence of appellants to an automobile struck by cars backed over through their servants. The particular act crossing without giving warning of the ap- of alleged negligence was the backing of a proach of the train, the view of which was ob- train of Hat cars across a public road, upon structed, held that defendant's negligence was for the jury.

which appellees were traveling in an auto

mobile, without warning them of its ap3. Railroads Om 350(33)— Issue of discovered proach, and which train was obstructed from peril held før jury.

their view by an office, other buildings, a Where defendant's brakeman on cars back- fence, and hedgerow until within 10 or 12 ed over a public crossing, testified that he dis- feet of the track, which train collided with covered plaintiffs in an automobile when they were about 40 or 50 feet from the crossing and the automobile and caused the injuries comthe front end of the flat car nearest the road plained of. Appellants filed an answer decrossing was 30 feet from it, and the engineer nying the allegation of negligence, and pleadtestified that it was possible to stop the train ing, by way of further defense, that the inwithin a distance of 10 or 12 feet at the rate juries were the direct result of negligence of it was moving, the issue of discovered peril appellees in driving the automobile onto and was for the jury.

against the flat cars, without taking any 4. Railroads (m327(7)— Traveler not required care or precaution to look or listen, or, if to stop to look and listen.

necessary in the exercise of ordinary care, While it is necessary for a traveler to look to stop for that purpose. and listen for trains as he approaches a public An appeal from the judgments has been crossing, he is not required to stop for that duly prosecuted to this court, and the correctpurpose, unless necessary to do so in the exer ness of the judgments is assailed by appelcise of ordinary care for his safety.

lants because the court gave certain instruc5. Railroads Em350(22)-Contributory negli- tions alleged to be erroneous, and refused to

gence of persons riding in automobile held for give others alleged to be correct, and errone. jury.

ously modified others before giving them. Where there was nothing in the testimony The facts as reflected by the record are, in to show that plaintiffs riding in an automobile substance, as follows: Two railroad tracks could not have heard a warning of the approach of appellant, 30 feet apart, running north and of the cars, if given, and there was a dispute in south, crossed the public road at right angles the testimony as to whether a fence and hedge where the alleged injuries occurred. Buildrow entirely obscured the train which was backed over the crossing, held that the question of ings between these tracks were on both sides contributory negligence was for the jury.

of the public road. The office, fence, and

hedgerow were on the south side, and the 6. Negligence Cm93 (2) — Wife's negligence in mill and lumber yard were on the north side. driving husband's automobile imputable to

Appellees were going toward the east in the him.

direction of Malvern, in a Ford car owned Where the husband was riding in his auto

by Hosea Brady. Mrs. Hosea Brady was mobile driven by his wife, her negligence in driving the car when it was struck by a train driving, and her husband was sitting beside was imputable to him, and should have been her holding the baby, then 22 months old. considered in determining the liability for dam- According to their evidence, they were drivage to car.

ing at the rate of six or eight miles an hour,

(248 S.W.) and on account of the obstructions on the , conception of a public highway, for he adsouth side of the road did not see or hear mitted that the road had been generally the train until within 10 or 12 feet of the traveled by the public for many years. We track, at which time the train rapidly ap- think the court's assumption warranted, for proached the crossing and collided with their there was no real dispute in the testimony car before they could stop it; that as soon as upon the point. they discovered the train, Mrs. Brady put on [2] Appellants also contend that the court the brake and turned off the gas, and Mr. erred in submitting the issue of negligence Brady turned off the engine; that the train on their part. It is argued that there is no was running much faster then than they had evidence upon which to base the issue. We been traveling, and when they cut all the think the evidence warranted the submission power off the automobile it reduced the of that issue to the jury. The testimony speed enough to allow the front end of the tended to show that appellants backed two flat car to get by them some 6 feet before the freight cars rapidly toward a public crossing collision occurred; that Mrs. Brady was ac- without warning of any kind to travelers who customed to driving the car; and that she might be approaching. The error, if any, was was looking to the front, as usual, when ap- against appellees, for, according to the unproaching the crossing.

disputed testimony, the bell was not rung According to the testimony of appellants, or the whistle blown in the manner required the flat car was being backed across the road by the statute. Aside from the fact that into the millyard to place it for loading; that the whistle was not blown or the bell rung, the train was moving about four to six miles the evidence tended to show that, as the train an hour; that appellees were discovered 40 approached the public road crossing, it was or 50 feet from the crossing as they ap- obscured from the view of travelers until proached it; that the front end of the flat they were within 10 or 12 feet of the crossing, car was then about 30 feet from the crossing; and, notwithstanding such facts, that no one that immediately upon discovering them the was stationed at the crossing or on the front engineer shut the throttle, plugged the air end of the flat car to notify the public or to valve, and threw back the reverse lever; signal the engineer or fireman. An inference that, considering the speed of the train and might well have been drawn by the jury from other conditions, it could have been stopped these facts that appellants' train was operwithin a distance of 10 or 12 feet; that the ated negligently on that occasion. Appellants reason the train reached the crossing first go further, and assert the court assumed in was because it was nearer than the automo- several instructions that they were negligent bile to the crossing; that the tracks did not in the operation of their train. After a carecross a public highway, but a road that was ful reading of the instructions referred to, we traveled by the people a good deal.

do not think them susceptible of that conThe undisputed testimony showed that the struction. train was backed across the road crossing, [3] Appellants also contend that the court which had been generally traveled by the erred in giving instruction No. 9, based upon people for many years, without giving any the doctrine of discovered peril, for the alwarning whatever of its approach, and with leged reason that there was no evidence to out having any one on the front end of the support the instruction, John A. Millen, actflat car to watch and give signals.

ing brakeman, testified that the train was At the request of appellants, the jury was moving at the rate of four miles an hour; permitted to go to the scene and approach the that he discovered appellees when they were crossing in automobiles as an engine was 10 or 50 feet from the road crossing, and imbacking a flat car up the track toward the mediately notified the engineer of their aproad crossing, so that it might observe condi- proach; that the front end of the flat car tions at first hand.

nearest the road crossing was then 30 feet [1] Appellants contend the instructions from it. C. J. Page, the engineer, testified were erroneous because they did not take into that it was possible to stop the train within account that the place where the injury oc

a distance of 10 or 12 feet, at the rate it was curred was private property, and not a pub- moving. The jury would have been justified lic road, thereby requiring appellants to ex- from these statements in drawing an inferercise the same care to keep from injuring ence that the appellants discovered the peril trespassers that they would have to exercise to appellees in time to have stopped the train to keep from injuring travelers at a public and avoided the injury. It was proper, thereroad crossing. It is true, in instructing the fore, to submit that issue to the jury. jury, the court assumed that the place where [4, 5] Appellants also contend that the the injury occurred was a public road cross-court erred in refusing to direct a verdict in ing. All the witnesses testified it was such a their favor as to both appellees, upon the crossing, unless it can be said that John A. theory that the undisputed testimony showed Millens testitied to the contrary. He did say that the negligence of Mr. and Mrs. Brady the road was not a public highway, but at the was the sole and proximate cause of the intime must have had in mind some technical juries.

It is insisted that Mr. and Mrs.

Brady should have stopped to look and listen as they approached the crossing. While it MCKINNEY v. BEATTIE. (No. 199.) is necessary for a traveler to look and listen for trains as he approaches a public cross

(Supreme Court of Arkansas. March 5,

1923.) ing, he is not required to stop for that purpose unless necessary to do so in the exer-1. Tenancy in common am 14 Possession of cise of ordinary care for his safety. We can

land under will held adverse to rights of co

tenant. not say, as a matter of law, under the facts in this case, that it was the duty of appellees father

as a new acquisition, under Crawford &

Where the land of intestate ascended to his to have stopped their car in order to look and Moses' Dig. & 3480, and then descended in relisten. The testimony is in dispute as to mainder to the collateral kindred of the inteswhether the fence and hedgerow entirely ob- tate, and the father took possession and kept scured the train in the direction from which it until he died, devising it to his son, who ocit came. There is nothing in the testimony cupied it as his own and did not share the tending to show that they could not have tled to an interest in the land as a cotenant,

rents and profits with plaintiff, who was entiheard the whistle, if blown, or the bell, if held, in a suit by plaintiff to recover such in- , rung, while riding along at a low rate of terest, that the possession of the son was ad. speed. The record does not reflect that the verse, and constituted an ouster putting the train was passing on schedule time. Ac

statute of limitations in motion; plaintiff hay

ing notice of the adverse occupancy. cording to the testimony, appellees were approaching the crossing slowly and looking to 2. Tenancy in common 15(7, 8)-Mistake of the front. We think it was a question for the law not caused by fraudulent concealment or jury, under the facts, to say whether the in misrepresentation, does not affect limitations. juries resulted wholly from the negligence Mere ignorance on the part of a cotenant of Mr. and Mrs. Brady, or wholly from the concerning her right to land adversely occunegligence of appellants, or from the concur- pied by another tenant, or even a joint mis

take of law on the part of the cotenants as to ring negligence of both.

their respective rights, do not affect the opera[6] Appellants also contend that the court tion of the statute of limitations, under which erred in giving appellees' requested instruc- title by adverse possession is claimed; the tion No. 1, which is as follows:

mistake not being caused by fraudulent con

cealment or misrepresentation. "You are instructed that if you find from the evidence in this case that the defendant company in the operation of one of their trains Appeal from Crittenden Chancery Court; negligently damaged plaintiff's car, without fault Archer Wheatley, Chancellor. or negligence on his part, as alleged in his com

Action by Mary B. McKinney against W plaint, it will be your duty, and you are in: M. Beattie and others to recover possession structed, to find for the plaintiff Hosea Brady in whatever sum you find from the evidence that of an interest in realty. Judgment for dehis car was damaged."

fendants, and plaintiff appeals. Affirmed.

Berry & Wheeler, of Marion, for appel

lant. This instruction was erroneous because it ignored the negligence of the wife as a de

C. W. Norton, of Forrest City, for appel

lees. fense to the action of Hosea Brady for tue injury to the automobile. Hosea Brady owned the automobile, and was in no sense a

McCULLOCH, O. J. Appellant instituted guest of his wife, so he had control, along an action in the circuit court of Crittenden with his wife, over the movements of the car. county to recover possession of an undivided The negligence of Mrs. Brady, if any, there half interest in a tract of land in that counfore, was imputable to Hosea Brady, and ty, title to which appellant claims as tenant should have been taken into account, just as in common of appellees. The statute of limhis own negligence, if any, in determining itation was pleaded as one of the defenses, , whether there was liability on the part of, and the cause was transferred to the chanappellants for damage to the car. The defect cery court on motion of appellees, apparently in instruction No. 1 was not cured by other without objection on the part of appellant ; instructions given by the court. The only one at least there is no objection urged lere. tending to cure the defect was in conflict The facts are undisputed with respect to with the one given.

the origin of the title asserted by the reThe judgment in favor of Mrs. Hosea spective parties. The land in controversy Brady, as mother and next of kin of Louis was originally owned and actually occupied Lindel Brady, is aflirmed; and on account of as a farm by Williain F. Beattie, who residthe error indicated the judgment in favor of ed in the state of Virginia, and who died Ilosea Brady is reversed, and his cause of there intestate and without issue in the year action is remanded for a new trial.

1881, leaving surviving his father, Madison

(248 S.W.) Beattie, and sister and brother, Mary B. Mc-| "In order, therefore, for the possession of Kinney and George A. C. Beattie, respective one tenant in common to be adverse to that of ly. The land was a new acquisition, and his cotenants, knowledge of his adverse claim under the statutes of this state (Crawford must be brought home to them directly or by & Moses' Dig. $ 3480) ascended to his ta that notice may be presumed."

such notorious acts of an unequivocal character ther, Madison Beattie, for life, and then descended in remainder to the collateral kin [2] Mere ignorance on the part of appeldred of the intestate.

lant concerning her inheritance, or even the Immediately after the death of William F. joint mistake of law on the part of appelBeattie his father, Madison Beattie, took lant and her brother as to their respective possession of the land and occupied it until rights to the land, did not affect the operahe died on July 31, 1885, leaving a last will tion of the statute. Ignorance of the law, and testament, by which he undertook to or even of facts, affords no immunity from devise the whole of the land to his son, the operation of the statute unless the misGeorge A. C. Beattie. The will of Madison take is caused by fraudulent concealment or Beattie was probated in Virginia, where he misrepresentation. McKneely v. Terry, 61 resided, and also in Crittenden county, Ark., Ark. 527, 33 S. W. 953; Hibben v. Malone, and his son, George A. C. Beattie, iinmedi- 85 Ark. 584, 109 S. W. 1008; Conditt v. Holdately took possession of the land and occu- en, 92 Ark. 618, 123 S. W. 765, 135 Am. St. pied it until his death in the year 1889. The Rep. 206. appellees are the children and only heirs at Finding that the court was correct in its law of George A. C. Beattie.

decree in favor of appellees on the ground of According to the undisputed evidence, the bar of the statute of limitation, it is unGeorge A. C. Beattie was the sole occupant necessary to discuss the other grounds upon of the land from the time he took possession which the decree is sought to be upheld. immediately after the death of his father,

and he occupied it as his own, and did not
share the rents and profits with his sister,
the appellant. She testified that she made no
claim to the land for the reason that she

SPIER V. STATE. (No. 180.)
believed until after the death of her brother,
George A. C. Beattie, that her father, Mad (Supreme Court of Arkansas. Feb. 19, 1923.
ison Beattie, had inherited the land in fee

Rehearing Denied March 12, 1923.) simple from William F., and that the title

1. Homicide Om 255(2), 308(4)-Evidence held passed to George A. C. Beattie under the

to warrant instruction on murder and conwill of her father.

viction of voluntary manslaughter. [1] We think that the evidence justified

In a prosecution for murder, evidence the finding by the chancery court that the held to warrant submission of the charge of possession of the land by the father of ap- murder and to support conviction of voluntary pellees was adverse for more than the stat- manslaughter. utory period, and that such possession con- 2. Homicide 166(8)-Evidence of victim's stituted an investiture of title. The evi

wife that defendant had ravished her two dence shows that the possession of George A. years before tragedy which caused quarrel C. Beattie was, from the start, adverse and that never abated was admissible. not in recognition, either expressly or in In a prosecution for murder, evidence of pliedly, of the rights of any one else. It is the victim's wife that about two years before true that, according to the testimony of ap- the tragedy defendant had ravished her, was pellant, both sło and her brother were rest- admissible as being the cause of the trouble ing under the belief that the latter bad ac

between defendant and his victim, the quarrel quired title under the will of their father, growing out of the affair never having abated. Madison Beattie, but this does not alter the 3. Homicide w338 (3)-Evidence of insanity fact that the possession was, in fact, adverse

of victim admitted without prejudice to de

to the rights of the cotenant, and constituted
in law an ouster, which put the statute of

In a murder prosecution, admitting proof limitation in motion.

We say this in full of an insanity proceeding against the victim, recognition of the rule that possession of one udice to defendant, in view of other facts con

unobjected to by defendant, held without prej. of the cotenants is possession of both, but cerning the proceeding being elicited from his in this case the adverse occupancy was witnesses. brought home to appellant as one of the co

4. Criminal law 719(3)-State counsel's tenants, and constituted such disseizin as

expressions of opinion held proper arguput the statute of limitation in motion.

ment. The facts in the case were sufficient, we In a murder prosecution, where defendant think, to completely satisfy the rule stated killed his brother after a two-year quarrel by this court in Singer v. Naron, 99 Ark. 446, defendant's ravishment of deceased's 138 S. W. 958, as follows:

wife, argument of state's counsel that defendEm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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ant shed more tears in the last 24 hours than, him to leave home. Charlie had resided he had shed for years prior to the trial, that with his father and mother only a few hunevidence showed he didn't shed tears at his dred yards from Arthur's home. After leavbrother's grave, and that when defendant rav: ing the country, Charlie returned secretly on ished his brother's wife be forfeited the right to live, and the man who would ravish his several occasions to visit his parents. Dur. brother's wife and later murder him would fab-ing one of these visits, the brothers engaged ricate a defense like defendant had done, were in a shooting affair near a neighborhood expressions of opinion and proper argument. store. Neither was injured at that time. 5. Criminal law 730(5)_State attorney's The sympathies of the father and mother argument without prejudice, in view of in

were with Charlie, which caused a bitterstruction.

ness between the two families. On one ocIn a murder prosecution, argument of casion, during the 'absence of Charlie, a state's counsel that defendant could have charge of insanity was preferred against turned aside on another road when he saw Arthur on account of frequent outbursts of he was going to meet deceased, and, having anger toward his father and Charlie, in the failed to do so, he did not do everything in his hope that treatment in the hospital for nerpower consistent with his safety to avoid dif

vous diseases would restore his former equaficulty, and therefor was not entitled to invoke the law of self-defense, was not prejudicial, in nimity. Charlie did not participate in the view of instructions that defendant could pur

proceedings. On the night before the killsue his intended course without turning aside, ing, Charlie spent the night with his brothand that failure to turn aside would not de- er, Elmer, who lived in the same neighborprive him of self-defense.

hood. Early the next morning he went to 6. Criminal law Om829(1)-Refusal of instruc- his father's home, in company with a friend, tions covered by ones given not error. taking a single-barrel shotgun and two car

Refusal of instructions covered by instruc- tridges with him. In going to his father's tions given cannot be assigned to error. house he saw Arthur but avoided meeting

him by going through the woods. In a short Appeal from Circuit Court, Conway Coun- | time after arriving at his father's home, he ty; A. B. Priddy, Judge.

saw Arthur passing in a wagon on his way Charlie Spier was convicted of voluntary to Morrillton. Later in the morning, Mr. Spimanslaughter, and he appeals. Affirmed.

er went to Morrillton in his buggy, and Gordon & Combs, of Morrillton, for ap Bradshaw's, in order to collect some money

Charlie decided to go with him as far as Ed pellant.

J. S. Utley, Atty. Gen., and Elbert Godwin which Bradshaw owed him. He procured and W. T. Hammock, Asst. Attys. Gen., for two more cartridges at his father's home, the State.

making four in all, and took the gun with

him. He testified that his purpose was to HUMPHREYS, J. Appellant was indict- collect the money, return home by way of ed in the Conway circuit court for murder a neighborhood store, buy some more shells, in the first degree, for killing his brother and hunt squirrels in the woods on the way in Conway county on October 24, 1921, and back; that Bradshaw was not at home, so on the trial of said charge was convicted of he decided to go on to town with his father ; voluntary manslaughter and adjudged to that after going about one-half mile he saw serve two years in the state penitentiary as Arthur coming; that just before meeting him punishment therefor. From the judgment of he observed a pistol in Arthur's hand; that conviction an appeal has been duly prosecut- he said, “Arthur, don't you get it," at which ed to this court.

time Arthur began to fire, hitting him the [1] Appellant's first assignment of error first shot in the hip; that when Arthur fired is that the evidence is not sufficient to sup- the second shot he reached for his gun and port the judgment. It is contended that the shot him; that Arthur then fired four more undisputed evidence reflects that appellant shots at him. killed his brother, Arthur Spier, in neces R. I. Spier testified that Charlie was watchsary self-defense. The record of the testi- | ing Arthur when they met him; that he mony is quite voluminous, and it would ex- heard Charlie say, “Don't you get it," and tend this opinion to great length to set out Arthur reached over for a pistol; that he the testimony of each witness. Only a brief became excited and could not say which one statement of the facts, therefore, will be at- fired first. Other witnesses who heard the tempted. The tragedy occurred on the pub-shots said they were close together, but the lic highway near Morrillton. It was the cul- pistol shot was first. Dr. Arthur, the cormination of a quarrel between the brothers, oner, testified that appei lant told him he took of two years' standing, growing out of a the gun that morning for the purpose of killcharge that Charlie had ravished Arthur's ing a hawk, should be see one. wife. Arthur had threatened appellant's Appellant's explanation as to why he had life on many occasions and had compelled the gun, and why he went to town with his

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