1914D, 800; Bank of Hoxie v. Hadley Milling Co., 119 Ark. 53, 177 S. W. 891. The court was correct in its interpretation of the power of attorney and did not err in directing a verdict for the appellees. Therefore let the judgment be affirmed. Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge. next of kin to Louis Lindel Brady, and by Actions by Mrs. Hosea Brady, mother and Hosea Brady against the Wisconsin & Arkansas Lumber Company. From judgments for plaintiff in each action, defendant appeals. Judgment in first action affirmed, and in second reversed and remanded. WISCONSIN & ARKANSAS LUMBER CO. v. Donham & Mehaffy, of Little Rock, for apHenry Berger, of Malvern, and Mehaffy, BRADY. (No. 212.) (Supreme Court of Arkansas.. March 5, 1923.) 1. Trial 192-Assumption of court in charge as to fact not disputed in evidence warranted. The assumption by the court in its charge as to a fact undisputed by the evidence held warranted. 2. Railroads 350 (9)-Negligence in backing cars over crossing without warning held for jury. In actions for personal injuries and damages to an automobile struck by cars backed over crossing without giving warning of the approach of the train, the view of which was obstructed, held that defendant's negligence was for the jury. 3. Railroads pellant. D. D. Glover, of Malvern, for appellees. HUMPHREYS, J. Brady, as mother and next of kin to Louis Appellee Mrs. Hosea Lindel Brady, recovered damages in Hot Spring circuit court against appellants, in the sum of $500 for injuries received by her child; and appellee Hosea Brady recovered damages against said appellants in the sum of $50 for injuries to his automobile, on account of alleged negligence of appellants through their servants. of alleged negligence was the backing of a The particular act train of flat cars across a public road, upon which appellees were traveling in an automobile, without warning them of its approach, and which train was obstructed from peril held for 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 training, by way of further defense, that the inwithin a distance of 10 or 12 feet at the rate it was moving, the issue of discovered peril was for the jury. 350(33)-Issue of discovered juries were the direct result of negligence of appellees in driving the automobile onto and against the flat cars, without taking any 4. Railroads 327 (7)—Traveler not required care or precaution to look or listen, or, if to stop to look and listen. While it is necessary for a traveler to look and listen for trains as he approaches a public crossing, he is not required to stop for that purpose, unless necessary to do so in the exercise of ordinary care for his safety. 5. Railroads 350 (22)-Contributory negligence of persons riding in automobile held for jury. Where there was nothing in the testimony to show that plaintiffs riding in an automobile could not have heard a warning of the approach of the cars, if given, and there was a dispute in the testimony as to whether a fence and hedgerow entirely obscured the train which was back ed over the crossing, held that the question of contributory negligence was for the jury. 6. Negligence 93 (2) - Wife's negligence in driving husband's automobile imputable to him. Where the husband was riding in his automobile driven by his wife, her negligence in driving the car when it was struck by a train was imputable to him, and should have been considered in determining the liability for dam age to car. necessary in the exercise of ordinary care, to stop for that purpose. An appeal from the judgments has been duly prosecuted to this court, and the correctness of the judgments is assailed by appellants because the court gave certain instructions alleged to be erroneous, and refused to give others alleged to be correct, and erroneously modified others before giving them. The facts as reflected by the record are, in substance, as follows: Two railroad tracks of appellant, 30 feet apart, running north and south, crossed the public road at right angles where the alleged injuries occurred. Buildings between these tracks were on both sides of the public road. The office, fence, and hedgerow were on the south side, and the mill and lumber yard were on the north side. Appellees were going toward the east in the direction of Malvern, in a Ford car owned by Hosea Brady. Mrs. Hosea Brady was driving, and her husband was sitting beside her holding the baby, then 22 months old. According to their evidence, they were driving at the rate of six or eight miles an hour, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Ark.) LUMBER and on account of the obstructions on the, conception of a public highway, for he adWe south 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. 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 the brake and turned off the gas, and Mr. Brady turned off the engine; that the train was running much faster then than they had been traveling, and when they cut all the power off the automobile it reduced the speed enough to allow the front end of the flat car to get by them some 6 feet before the collision occurred; that Mrs. Brady was accustomed to driving the car; and that she was looking to the front, as usual, when approaching the crossing. According to the testimony of appellants, the flat car was being backed across the road into the millyard to place it for loading; that the train was moving about four to six miles an hour; that appellees were discovered 40 or 50 feet from the crossing as they approached it; that the front end of the flat car was then about 30 feet from the crossing; that immediately upon discovering them the engineer shut the throttle, plugged the air valve, and threw back the reverse lever; that, considering the speed of the train and other conditions, it could have been stopped within a distance of 10 or 12 feet; that the reason the train reached the crossing first was because it was nearer than the automobile to the crossing; that the tracks did not cross a public highway, but a road that was traveled by the people a good deal. [2] Appellants also contend that the court erred in submitting the issue of negligence on their part. It is argued that there is no evidence upon which to base the issue. We The testimony think the evidence warranted the submission of that issue to the jury. tended to show that appellants backed two freight cars rapidly toward a public crossing without warning of any kind to travelers who might be approaching. The error, if any, was against appellees, for, according to the undisputed testimony, the bell was not rung Aside from the fact that or the whistle blown in the manner required by the statute. the whistle was not blown or the bell rung, the evidence tended to show that, as the train approached the public road crossing, it was obscured from the view of travelers until they were within 10 or 12 feet of the crossing, and, notwithstanding such facts, that no one was stationed at the crossing or on the front end of the flat car to notify the public or to signal the engineer or fireman. An inference might well have been drawn by the jury from these facts that appellants' train was operated negligently on that occasion. Appellants go further, and assert the court assumed in several instructions that they were negligent in the operation of their train. After a careful reading of the instructions referred to, we do not think them susceptible of that construction. The undisputed testimony showed that the [3] Appellants also contend that the court train was backed across the road crossing, 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, acting brakeman, testified that the train was flat car to watch and give signals. moving at the rate of four miles an hour; that he discovered appellees when they were 40 or 50 feet from the road crossing, and immediately notified the engineer of their approach; that the front end of the flat car nearest the road crossing was then 30 feet from it. C. J. Page, the engineer, testified that it was possible to stop the train within a distance of 10 or 12 feet, at the rate it was At the request of appellants, the jury was permitted to go to the scene and approach the crossing in automobiles as an engine was backing a flat car up the track toward the road crossing, so that it might observe conditions at first hand. from these statements in drawing an inference that the appellants discovered the peril to appellees in time to have stopped the train and avoided the injury. It was proper, therefore, to submit that issue to the jury. [1] Appellants contend the instructions were erroneous because they did not take into account that the place where the injury occurred was private property, and not a pub-moving. The jury would have been justified lic road, thereby requiring appellants to exercise the same care to keep from injuring trespassers that they would have to exercise to keep from injuring travelers at a public road crossing. It is true, in instructing the jury, the court assumed that the place where 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 crossing, unless it can be said that John A. Millens testified to the contrary. He did say the road was not a public highway, but at the time must have had in mind some technical [4, 5] Appellants also contend that the their favor as to both appellees, upon the theory that the undisputed testimony showed that the negligence of Mr. and Mrs. Brady It is insisted that Mr. and Mrs. was the sole and proximate cause of the injuries. MCKINNEY v. BEATTIE. (No. 199.) March 5, Brady should have stopped to look and listen Possession of land under will held adverse to rights of cotenant. father as a new acquisition, under Crawford & Where the land of intestate ascended to his Moses' Dig. § 3480, and then descended in remainder to the collateral kindred of the intestate, and the father took possession and kept it until he died, devising it to his son, who occupied it as his own and did not share the tled to an interest in the land as a cotenant, rents and profits with plaintiff, who was entiheld, in a suit by plaintiff to recover such in-. terest, that the possession of the son was adverse, and constituted an ouster putting the statute of limitations in motion; plaintiff having notice of the adverse occupancy. [6] Appellants also contend that the court erred in giving appellees' requested instruction No. 1, which is as follows: "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 negligently damaged plaintiff's car, without fault or negligence on his part, as alleged in his complaint, it will be your duty, and you are instructed, to find for the plaintiff Hosea Brady in whatever sum you find from the evidence that his car was damaged." 2. Tenancy in common 15(7, 8)—Mistake of law not caused by fraudulent concealment or misrepresentation, does not affect limitations. Mere ignorance on the part of a cotenant concerning her right to land adversely occutake of law on the part of the cotenants as to pied by another tenant, or even a joint mistheir respective rights, do not affect the operation of the statute of limitations, under which title by adverse possession is claimed; the mistake not being caused by fraudulent concealment or misrepresentation. Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor. Action by Mary B. McKinney against W M. Beattie and others to recover possession of an interest in realty. Judgment for defendants, and plaintiff appeals. Affirmed. Berry & Wheeler, of Marion, for appellant. C. W. Norton, of Forrest City, for appellees. This instruction was erroneous because it ignored the negligence of the wife as a defense to the action of Hosea Brady for the injury to the automobile. Hosea Brady owned the automobile, and was in no sense a MCCULLOCH, C. 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 should have been taken into account, just as his own negligence, if any, in determining whether there was liability on the part of appellants for damage to the car. The defect in instruction No. 1 was not cured by other instructions given by the court. The only one tending to cure the defect was in conflict with the one given. The judgment in favor of Mrs. Hosea Brady, as mother and next of kin of Louis Lindel Brady, is affirmed; and on account of the error indicated the judgment in favor of Hosea Brady is reversed, and his cause of action is remanded for a new trial. ty, title to which appellant claims as tenant in common of appellees. The statute of limitation was pleaded as one of the defenses, and the cause was transferred to the chancery court on motion of appellees, apparently without objection on the part of appellant; at least there is no objection urged here. The facts are undisputed with respect to the origin of the title asserted by the respective parties. The land in controversy was originally owned and actually occupied as a farm by William F. Beattie, who resided in the state of Virginia, and who died there intestate and without issue in the year 1881, leaving surviving his father, Madison For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S. W.) Beattie, and sister and brother, Mary B. McKinney and George A. C. Beattie, respectively. The land was a new acquisition, and under the statutes of this state (Crawford & Moses' Dig. § 3480) ascended to his fa ther, Madison Beattie, for life, and then descended in remainder to the collateral kindred of the intestate. Immediately after the death of William F. Beattie his father, Madison Beattie, took possession of the land and occupied it until he died on July 31, 1885, leaving a last will and testament, by which he undertook to devise the whole of the land to his son, George A. C. Beattie. The will of Madison Beattie was probated in Virginia, where he resided, and also in Crittenden county, Ark., and his son, George A. C. Beattie, immediately took possession of the land and occupied it until his death in the year 1889. The appellees are the children and only heirs at law of George A. C. Beattie. According to the undisputed evidence, George A. C. Beattie was the sole occupant of the land from the time he took possession 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 believed until after the death of her brother, George A. C. Beattie, that her father, Madison Beattie, had inherited the land in fee simple from William F., and that the title passed to George A. C. Beattie under the will of her father. [1] We think that the evidence justified the finding by the chancery court that the possession of the land by the father of appellees was adverse for more than the statutory period, and that such possession constituted an investiture of title. The evidence shows that the possession of George A. C. Beattie was, from the start, adverse and not in recognition, either expressly or impliedly, of the rights of any one else. It is true that, according to the testimony of appellant, both she and her brother were resting under the belief that the latter had acquired title under the will of their father, Madison Beattie, but this does not alter the fact that the possession was, in fact, adverse to the rights of the cotenant, and constituted in law an ouster, which put the statute of limitation in motion. We say this in full recognition of the rule that possession of one of the cotenants is possession of both, but in this case the adverse occupancy was brought home to appellant as one of the cotenants, and constituted such disseizin as put the statute of limitation in motion. The facts in the case were sufficient, we think, to completely satisfy the rule stated by this court in Singer v. Naron, 99 Ark. 446, 138 S. W. 958, as follows: "In order, therefore, for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed." [2] Mere ignorance on the part of appellant concerning her inheritance, or even the joint mistake of law on the part of appellant and her brother as to their respective rights to the land, did not affect the operation of the statute. Ignorance of the law, or even of facts, affords no immunity from the operation of the statute unless the mistake is caused by fraudulent concealment or misrepresentation. McKneely v. Terry, 61 Ark. 527, 33 S. W. 953; Hibben v. Malone, 85 Ark. 584, 109 S. W. 1008; Conditt v. Holden, 92 Ark. 618, 123 S. W. 765, 135 Am. St. Rep. 206. Finding that the court was correct in its decree in favor of appellees on the ground of the bar of the statute of limitation, it is unnecessary to discuss the other grounds upon which the decree is sought to be upheld. Affirmed. 2. Homicide 166(8)—Evidence of victim's wife that defendant had ravished her two years before tragedy which caused quarrel that never abated was admissible. In a prosecution for murder, evidence of the victim's wife that about two years before the tragedy defendant had ravished her, was admissible as being the cause of the trouble between defendant and his victim, the quarrel growing out of the affair never having abated. 3. Homicide 338 (3)-Evidence of insanity of victim admitted without prejudice to defendant. In a murder prosecution, admitting proof of an insanity proceeding against the victim, unobjected to by defendant, held without prejudice to defendant, in view of other facts concerning the proceeding being elicited from his witnesses. counsel's 4. Criminal law 719 (3)-State expressions of opinion held proper argument. In a murder prosecution, where defendant killed his brother after a two-year quarrel over defendant's ravishment of deceased's wife, argument of state's counsel that defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 raving the country, Charlie returned secretly on ished his brother's wife he forfeited the right several occasions to visit his parents. Durto live, and the man who would ravish his 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 view of instructions that defendant could pursue his intended course without turning aside, and that failure to turn aside would not deprive him of self-defense. 6. Criminal law 829(1)-Refusal of instructions covered by ones given not error. Refusal of instructions covered by instructions given cannot be assigned to error. nimity. Charlie did not participate in the proceedings. On the night before the killing, Charlie spent the night with his brother, Elmer, who lived in the same neighborhood. Early the next morning he went to his father's home, in company with a friend, taking a single-barrel shotgun and two cartridges with him. In going to his father's 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. Charlie Spier was convicted of voluntary manslaughter, and he appeals. Affirmed. Gordon & Combs, of Morrillton, for ap pellant. J. S. Utley, Atty. Gen., and Elbert Godwin and W. T. Hammock, Asst. Attys. Gen., for the State. HUMPHREYS, J. Appellant was indicted in the Conway circuit court for murder in the first degree, for killing his brother in Conway county on October 24, 1921, and on the trial of said charge was convicted of voluntary manslaughter and adjudged to serve two years in the state penitentiary as punishment therefor. From the judgment of conviction an appeal has been duly prosecuted to this court. saw Arthur passing in a wagon on his way to Morrillton. Later in the morning, Mr. Spier went to Morrillton in his buggy, and Charlie decided to go with him as far as Ed Bradshaw's, in order to collect some money which Bradshaw owed him. He procured two more cartridges at his father's home, making four in all, and took the gun with him. He testified that his purpose was to collect the money, return home by way of a neighborhood store, buy some more shells, and hunt squirrels in the woods on the way back; that Bradshaw was not at home, so he decided to go on to town with his father; that after going about one-half mile he saw Arthur coming; that just before meeting him he observed a pistol in Arthur's hand; that he said, "Arthur, don't you get it," at which time Arthur began to fire, hitting him the first shot in the hip; that when Arthur fired the second shot he reached for his gun and shot him; that Arthur then fired four more shots at him. [1] Appellant's first assignment of error is that the evidence is not sufficient to support the judgment. It is contended that the undisputed evidence .reflects that appellant killed his brother, Arthur Spier, in necessary self-defense. The record of the testimony is quite voluminous, and it would extend this opinion to great length to set out the testimony of each witness. Only a brief statement of the facts, therefore, will be attempted. The tragedy occurred on the public highway near Morrillton. It was the culmination of a quarrel between the brothers, of two years' standing, growing out of a charge that Charlie had ravished Arthur's wife. Arthur had threatened appellant's Appellant's explanation as to why he haá life on many occasions and had compelled the gun, and why he went to town with his R. I. Spier testified that Charlie was watching Arthur when they met him; that he heard Charlie say, "Don't you get it," and Arthur reached over for a pistol; that he became excited and could not say which one fired first. Other witnesses who heard the shots said they were close together, but the pistol shot was first. Dr. Arthur, the coroner, testified that appellant told him he took the gun that morning for the purpose of killing a hawk, should he see one. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes |