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indebtedness, a finding that the conveyance was not in full satisfaction of the mortgage debt, as testified by the mortgagee's officers, was not against the preponderance of the evidence, and therefore could not be disturbed on appeal.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. 88 855-863, 875, 913, 1356, 1366; Dec. Dig. 319.]

ed the machine to Arkansas within 70 days after demand was made for it. They also testified that appellees entered into negotiations with them looking to a sale of the machinery before it was returned. The testimony of the president and secretary was corroborated by another official of the cor

Appeal from Carroll Chancery Court; T. poration who testified that the administraH. Humphreys, Chancellor.

Action by James Roach, administrator, and others, against the Eureka Stone Company and others. Decree for plaintiffs, and defendants appeal. Affirmed.

tor and one of the heirs had talked to him about selling the machinery before its return. On the other hand, the administrator and the heir referrred to testified in positive terms that the bond as written constitut

Festus O. Butt, of Eureka Springs, for ap-ed the agreement entered into between the pellants. J. V. Walker, of Fayetteville, for appellees.

parties and stated that no mistake was made in writing it. They denied that they had demanded a return of the machinery after the 70 days from the date the bond had expired, and denied that they had entered into negotiations for the sale of the machinery with the officers of the appellant corporation.

HART, J. Appellees instituted this action against appellants to recover on a bond. The facts are as follows: The Eureka Stone Company, a domestic corporation, was indebted to Fransiszka Massman in the sum of $10,000. The debt was secured by a [2] It is the settled rule of this court that, mortgage on all the real and personal prop- to justify or authorize the reformation of a erty owned by the corporation. A certain written instrument on the ground of fraud channeling machine was included in the or mistake, the evidence of such fraud or personal property. Fransiszka Massman mistake must be clear, unequivocal, and dedied and James Roach became administra- cisive. Hoffman v. Rice-Stix Dry Goods Co., tor of her estate. The corporation wished to use the channeling machine in a quarry it owned and operated in the state of Missouri and obtained permission from one of the heirs and from the administrator of the Massman estate to carry the machine there. The corporation, together with the other appellants, executed a bond in favor of the estate conditioned for the payment of $600 if the channeling machine should be destroyed or not returned to Carroll county, Ark., within 70 days after the date of the bond. Appellants failed to return the machine within 70 days after the date of the bond, and appellees instituted this action to recover the amount of the bond. Appellants answered and asked for a reformation of the bond, alleging that the agreement was that the machinery should be returned within 70 days after demand made therefor. They also pleaded as a defense to the action that there had been a settlement of the amount owed by the mortgagor to the mortgagee. Appellants asked that the cause be transferred to equity, and this was done. chancellor found the issues in favor of appellees, and from the decree entered of record appellants have duly prosecuted an appeal to this court.

The

[1] On the question of reformation, the president and secretary of the corporation testified that it was the agreement of the parties that the machinery was to be returned within 70 days after demand made therefor, and that by mutual mistake the language of the bond was that it should be returned within 70 days after the date of the instrument. They testified that they return

111 Ark. 205, 163 S. W. 520; Tedford Auto Co. v. Thomas, 108 Ark. 503, 158 S. W. 500; Hearin v. Union Sawmill Co., 105 Ark. 455, 151 S. W. 1007; Turner v. Todd, 85 Ark. 62, 107 S. W. 181, and cases cited. Many other cases might be cited in support of the rule, but the rule is so well settled in this state as to make it unnecessary to do so. We have not attempted to set out in detail the testimony of the witnesses on the question of reformation, and do not deem it necessary to do so, but have only stated the substance of it. The testimony was not sufficient to meet the requirements of the rule just announced; it was too nearly evenly balanced and was not of that clear, unequivocal, and decisive character required by our decisions. [3] Again, it is contended by counsel for appellants that the decree should be reversed because the mortgage indebtedness had been settled. The record shows that the mortgagor executed a deed to the heirs of the mortgagee to the real estate embraced in the mortgage and to all of the personal property situated thereon at the time of the execution of the instrument. This deed was executed after the channeling machine had been removed to the state of Missouri. It is not contended that the channeling machine was embraced in the deed, but it is the contention of counsel for appellants that the deed was in full satisfaction of the mortgage debt, and the officers of the corporation so testified. On the other hand, the administrator and one of the heirs who participated in agreement looking to the execution of the deed referred to testified that the channeling machine was not embraced in the deed and

board a train, with contributory negligence, is a question for the jury, especially where it appears that the space may have been more than ordinarily dangerous by reason of the speed at which another train was approaching.

was not intended to be embraced therein, | charge plaintiff, who went upon the space to and that the property conveyed lacked several thousand dollars of settling the mortgage indebtedness. The chancellor found this issue in favor of appellees, and we cannot say that his finding was against the preponderance of the evidence. Therefore, under the well-settled rule of this court, his finding of fact cannot be disturbed on appeal.

The decree will be affirmed.

COOK v. ST. LOUIS, I. M. & S. RY. CO. (No. 178.)

(Supreme Court of Arkansas. Oct. 18, 1915.) 1. APPEAL AND ERROR 927-PRESUMPTIONS -DIRECTED VERDICT-EVIDENCE.

In reviewing the direction of a verdict for defendant, the evidence for plaintiff must be given its highest probative force.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 375S, 4024; Dec. Dig. 927.]

2. CARRIERS 280, 327-PERSONAL INJURIES -CARE REQUIRED.

A railroad and a person on a station platform waiting for a train are under the same duty to exercise ordinary care to avoid inflicting or receiving injury, and each may rightfully assume that the other will be guilty of no negligence.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117, 1363-1366; Dec. Dig. 280, 327.1 3. CARRIERS 327- PERSONAL INJURIES PERSONS ON TRACK BY INVITATION.

Although a railroad places a cinder platform between its tracks, where there is a space of but 31⁄2 feet when trains are on both tracks, and thus there may be shown an invitation to use the platform, a person injured while there cannot set up the invited use, where it would be apparent to a reasonably prudent man exercising due care that the space was one of peril.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1363-1366; Dec. Dig. 327.1 4. CARRIERS 327- PERSONAL INJURIES CARE REQUIRED.

Although it was necessary in order to board a train, plaintiff cannot set up the fact in justification of his negligent presence in a place of danger, although, had he not been there, he would have missed his train.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1363-1366; Dec. Dig. 327.] 5. CARRIERS 280-OPERATION-DUTY TO IN

VITEES.

Where plaintiff went to a railway station to board a train, and, in order to signal his train with a lantern, stood between two tracks, on one of which a passenger train distant about onefourth of a mile was approaching, and on the other a freight train distant about one mile was approaching, the engineer of the freight was charged by statute with keeping a lookout, and if he failed to do so, and plaintiff was thereby injured, the railway company was liable for his negligence, since the plaintiff could not know whether the freight would stop, while the engineer did know.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. 280.]

6. CARRIERS 347-OPERATION-DUTIES TO INVITEES-CONTRIBUTORY NEGLIGENCE. Whether a space of 32 feet between moving trains at a station is a dangerous one, so as to

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. 347.]

7. CARRIERS 347-OPERATION-DUTIES TO

INVITEES-CONTRIBUTORY NEGLIGENCE.

Whether plaintiff, standing in a space of 32 feet between moving trains for the purpose of boarding one train, was guilty of contributory negligence in failing to stand in the exact center of the space, is a question for the jury, dependent upon the conditions existing at the time.

Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; [Ed. Note.-For other cases, see Carriers, Dec. Dig. 347.]

Appeal from Circuit Court, White County; J. M. Jackson, Judge.

Action by William N. Cook against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant Reon directed verdict, plaintiff appeals.

versed and remanded.

Brundidge & Neelly, of Searcy, and Sam M. Wassell, of Little Rock, for appellant. P. R. Andrews, of Helena, and Troy Pace, of Little Rock, for appellee.

SMITH, J. Appellant was struck by one of appellee's trains, and sued to recover damages to compensate the injury sustained by him. On the trial of the case before a jury, after the appellant had rested his case, the court, upon motion of appellee, directed the jury to return a verdict in appellee's favor, and this appeal has been prosecuted from the judgment pronounced upon the verdict so

returned.

[1] Giving appellant's evidence its highest probative force, as we must do in testing the correctness of the action of the court below, the facts in the case may be stated as follows:

The injury occurred at McRae, which was then an unincorporated village of some 200 persons, and, although appellee maintained a depot there, this was a flag stop station, and that only for local trains. The fast or through trains did not stop there, even upon signal. The line of railroad was doubletracked, the depot being to the east of the tracks, and there was a cinder platform between the depot and the east track for the purpose of accommodating passengers. Trains north-bound were run over the east track, the one next to the station, while south-bound trains ran over the west track. These double tracks had been in use for more than two years, and appellant lived there at the time they were installed and was acquainted with the conditions. The injury occurred about 9 o'clock on the night of November 18, 1913. Appellant went to the depot to take passage on the south-bound passenger train. He was accompanied by his daughter and her hus

band, a Mr. Essig, and when they reached the depot they found it dark, and no one there to signal the passenger train to stop. Mr. Essig had a lantern, and when he heard the passenger train approaching he went between the two tracks and flagged this train. The tracks were straight for more than a mile in both directions, and while Mr. Essig was flagging the passenger train a freight train was approaching on the other track, the engines of the two trains passed each other at the point where Mr. Essig stood with his lantern, and when cars are standing on each track there is a space between them of from 3 to 3% feet. The witnesses testified that when the passenger train was flagged it responded by blowing one long blast, whereupon appellant and his daughter crossed over between the trains, but before the freight train arrived Mrs. Essig recrossed the track and returned to the platform near the depot. The freight train made no response to the signal with the lantern, and passed through McRae at a speed variously estimated by the witnesses at from 30 to 40 miles per hour.

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beam on the passenger engine. Had he remained standing still, as Mr. Essig did, he would not have been injured; but he stepped back involuntarily because of his fright.

[2-4] It does not appear whether the court directed a verdict because the proof failed to show that the railroad company was guilty of any negligence, or because it did show that appellant was guilty of contributory negligence; but appellee insists that the verdict was properly directed in its favor under either view. We think the jury might very well have found from the evidence that appellant should not have gone between the trains, and such a finding would not be disturbed by us. But we cannot say that the jury must necessarily have taken this view of the evidence, and that reasonable minds could not fairly reach any conclusion, except that appellant was guilty of contributory negligence. The jury must have found, as testified to by appellant, that a custom existed prior to his injury for passengers to stand between the tracks as an approaching train was being flagged, and that the engineer of the freight train saw or should have seen appellant, and should have known his purpose in standing between the tracks.

Prior to appellant's injury it was customary for passengers who desired to board south-bound trains to stand between these The law sets up for both the railroad comtracks as the train approached, and that pany and the appellant the same standard this was the usual thing for persons to do of duty, and that is to exercise ordinary who expected to take passage on south-bound care to avoid the infliction of an injury and trains, and this custom had been in force to avoid being injured; but as to what ever since the double track had been built would be ordinary care in a particular case up to the time of appellant's injury. At the depends upon the exigencies of that situatime the passenger train was flagged, it was tion. In determining the questions of negabout a quarter of a mile away, while the ligence and contributory negligence involved freight train, which was approaching in the in this case, it is proper to bear in mind that opposite direction, was then about one mile both appellant and the operatives of the distant. Appellant and Mr. Essig did not train had the right to assume that the other know what the freight would do, but they would be guilty of no negligent act, nor be got between the tracks, so that they would guilty of contributory negligence. Applying not miss the passenger train, and that they did these tests, it may be asked: Would a reanot think there would be any danger, because sonably prudent man have had the right to they supposed the passenger train would stop believe that an invitation was extended unfor the passengers to get on, and that they der the circumstances to stand between the thought the freight train would stop below tracks as the trains approached each other? the public crossing near the depot, for the If there was such an invitation, then there reason that the lantern had been waived in was an implied assurance that the space beplain view of the approaching freight train, tween the tracks was safe. But there could and the engineer of that train would be be no such invitation or assurance if it apaware of their presence and purpose. Ap- peared to a reasonably prudent person, expellant and Mr. Essig did not cross entirely ercising ordinary care for his own safety, over to the west side of the track, because that it was not safe to stand between the there was a ditch there, and the train was tracks; that is, appellant could not place a vestibuled one, and the cars were not open- himself in a position of peril, and excuse ed on the west side, and the passenger train himself for being there by saying that he was could have been entered only on the east invited there, if it was apparent to him in the side. Appellant knew that the passenger exercise of ordinary care that the place was train made only very short stops at McRae, dangerous. And if he knew the place was and he feared that he would miss the train dangerous he could not justify his occupancy if he was not in position to enter it immedi- of it by saying that he did so for the purately after it stopped. As the freight train pose of embarking on the passenger train passed the passenger train, appellant became when it stopped; and this is true, even panic-stricken and, although Mr. Essig sought though his action in not going between the to restrain him, he stepped away from the trains might have resulted in his missing the

manipulation of the trains as would have caused appellant to fail to catch the train would have conferred a cause of action on him on that account; but the fact that he would have had this cause of action for not being received as a passenger could not justify the commission of a negligent act.

freight train on account of its speed, then the jury would be warranted in finding that appellant was not guilty of contributory negligence by going between the tracks. In that event the further question would arise as to whether or not he was guilty of contributory negligence in not standing in the center of the space between the tracks, as Mr. Essig did, and in determining this question the jury would have the right to take into consideration the conditions existing at the time, creating an emergency which caused and excused the fright that was responsible for his act in stepping back in the way of the passenger train.

[5] Before there could be any recovery in this case, it would be necessary for the jury first to find that the railroad company was guilty of some negligence in the operation of its freight train, as it is not claimed that there was any negligence in the operation of the passenger train. This negligence is said to consist in running the freight train at an excessive speed under the circumstancIn the case of C., R. I. & P. Ry. Co. v. es, and in failing to keep a proper lookout, Stepp, 164 Fed. 785, 90 C. C. A. 431, 22 L. and thereby discovering appellant's presence R. A. (N. S.) 350, the facts were as follows: between the tracks. The lookout statute, ap- There were double tracks running east proved May 26, 1911 (Laws 1911, p. 275), has and west, with a space between of 10 feet, been several times recently construed by this and passengers were accustomed to get off court. One of the latest of these cases is and on trains on the north track on the that of Russell v. St. L. S. W. Ry. Co., 113 south side. As deceased reached the depot, Ark. 353, 168 S. W. 135. In this case we the west-bound train, which he intended to said that mere proof of an injury to a per- take, pulled in and stopped. It consisted of son by the operation of a train is insuffi- six coaches, and the locomotive was at a cient to establish liability under the lookout point 70 or 100 feet west of the depot, and statute, and that there must be proof suffi- was emitting smoke and steam, which was cient to warrant the finding that the pres-blown across the south track. On this south ence of the injured party could and would have been known to the operatives of the train, and the injury averted by the keeping of the lookout and the exercise of care after discovering the presence of the person in peril. The evidence here meets the requirements of that case, because the engineer on the freight train must have seen the signals with the lantern, had he been keeping a lookout, and he would thereby have been charged with knowledge of the fact that appellant was standing between the Appellant did not know how far apart the trains were at the time he flagged

tracks.

track another train was approaching from the west. Deceased crossed the south track and endeavored to board the west-bound train; but it was a vestibuled train, and the door of the car was closed. He hurried forward to the next car, and found that door also closed. The train was then moving, and deceased held to the handhold and tried to get on the train while it was in motion. He had some conversation with an employé on the rear platform, and then abandoned his efforts to gain admittance, and turned to go south to the station to wait for the next the south track, where he was struck by the The second step brought him upon other train, which was running at a speed track was straight and unobstructed for a of 40 to 50 miles per hour. The railway track was straight and unobstructed for a distance of more than a mile. Upon these

train.

facts the court said:

the passenger train, nor did he know what action the freight train would take, while the engineer of the freight train, of course, knew what his own action would be, and had more definite information about the distance between the trains and where they would "It was also for the jury to say whether the probably pass. defendant was guilty of negligence in running its [6, 7] We think it cannot be said as a mat-train past the station at the high rate of speed ter of law that the space between the tracks was necessarily a dangerous one, but that this is one of the questions of fact which should be passed upon by the jury. In determining that question the jury would have the right to take into consideration all the facts and circumstances in proof, including appellant's purpose in being there to become a passenger and his conduct while the trains were passing. If the place was necessarily a dangerous one, then appellant was guilty of contributory negligence and cannot recover, whatever may have been his purpose in . being there. But if the place was not necessarily dangerous, but was made dangerous

which is admitted. Our attention is called to numerous cases in which it is stated that railroads are themselves to be the judges of the speed at which they will run their trains, and that their judgment as to the proper requirements on this subject cannot, as a matter of law, be held to constitute negligence. In the cases in which the language was used the situation involved the speed of trains in the open country, and as to those situations the language was entirely proper. But negligence depends upon circumstances. It is too plain for controversy that railroads cannot be given an unrestricted discretion as to the speed at which they will run trains through station grounds. At such points railroads must operate their road with due regard to the safety of the public, and, if the matter were to be determined as a matter of law, we should have no hesitancy in saying that it

its train past the station at Randolph, under the conditions existing there at the time, at the speed of 40 miles an hour."

And discussing the question of deceased's contributory negligence, the court further said:

"Was the deceased guilty of contributory negligence in failing to look and listen before attempting to cross the track upon which he met his death? It is conceded that he took neither of these precautions. If, however, he was entitled to the rights of a passenger while on the platform, he was not required to do so. It is now the settled rule of the federal courts that passengers using station premises for the purpose of taking or leaving trains have a right to assume that the place is one of safety, and to act upon that assumption. While they are not absolved from all care, they are not required to exercise that high degree of care which the law imposes upon travelers when approaching the intersection of a highway and a railroad. The traveler upon the highway has no right to assume that the railroad is a place of safety, or that trains will not be run over it while he is attempting to pass. On the contrary, the rule has been repeatedly declared that such a crossing is a place of danger, and that the traveler must approach it with the knowledge that the company may at any time be moving trains over its road. This is the ground of the difference between the rule as to a passenger while upon station grounds and a traveler upon the highway. The one has the right to believe that the place which he is using is one of safety, while the other is bound to know that the place which he is approaching is one of imminent danger. Upon the basis of this difference the rule is now firmly established that a passenger, before crossing a track while taking or leaving a train, is not required, as a matter of law, to look and listen for approaching trains. He is simply required to exercise reasonable care in the light of all the circumstances existing at the time, and whether he exercises that care is a question of fact for the jury. [Cases cited.] This rule is based upon the soundest considerations of public policy. While taking or leaving a train, the attention of passengers is necessarily absorbed in a multitude of considerations, which make it impossible for them to exercise a careful watchfulness for approaching trains. There is usually considerable noise at such places. Frequently there is the meeting or leaving of friends. As a rule there is also haste and confusion. These and many other familiar circumstances confuse the mind, and render watchfulness impossible. The situation of Mr. Stepp is itself an impressive illustration. He arrived at the station a little late, and hastened to take the train. He rushed from one platform to another to enter, but found all entrance to the train barred. With his mind bewildered by this experience, he turned to go to the depot to wait for the next train, and was immediately struck and killed. All the circumstances mentioned were such as would throw the ordinary person off his guard, and to hold that one so situated ought to exercise the same care

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In the case of Hays v. St. L., I. M. & S. R. Co., 102 Ark. 160, 143 S. W. 923, it was said: "It has been ruled in numerous decisions of this court that it constitutes negligence per se for a person to go upon a railroad track without looking and listening for approaching trains, except where there is an implied invitation to go upon the track without taking these precautions, or where the situation is such that the person is, in the exercise of reasonable care, misled into believing that no engine or cars are expected." And in the opinion in that case the court quoted with approval from the case of St. L., I. M. & S. R. Co. v. Tomlinson, 69 Ark. 489, 64 S. W. 347, the following language:

"But the case is different where the injured person comes on the track by the invitation of the railway company. In such a case he must still exercise ordinary care; but, as he has the right to rely to some extent upon an implied assurance of the company that the way is safe, the courts, not knowing to what extent his acts may be influenced by the conduct of the company, cannot in such a case say as a matter of law that the mere failure to look and listen is such negligence as precludes a recovery. If, then, a passenger or his escort is injured while attempting to pass an intervening track to reach a depot or train, when the circumstances justify him in believing that he is invited by the company to pass over the track, it becomes a question for the jury, after considering all the circumstances, to say whether or not he is guilty of a want of ordinary care."

While we recognize this as a border line case upon the question of liability, we are still of the opinion that the jury should have been permitted to say whether, under the circumstances, appellant, in the exercise of ordinary care, had the right to believe that an invitation was extended to him to occupy the space between the tracks as these trains approached each other, and if the jury should so find they may, in measuring appellant's subsequent conduct, take into consideration the implied assurance that the operatives of both trains knew of his presence and would not imperil his safety. But, as has been said, the jury would have no right to find that this invitation had been extended to become a passenger in the manner attempted by appellant, if they find that this attempt imperiled his safety.

The judgment of the court below will therefore be reversed, and the cause remanded.

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