The three tracks at Union street were six or eight feet apart. Deceased and the witness, his companion, were crossing over the main line at about 7 or 8 o'clock at night. The road was rough, and the night very dark. The witness said to deceased, just before he came to a stand, "If you are not acquainted with the road, let me take your arm"; and witness took deceased's left arm with his right. A local going south was on the east track, and lacked about a box car, or half box car and caboose, of passing the crossing, when they walked upon the track of the main line. They "halted a second or moment, until the train passed the crossing"; and "while standing there, talking," the train backing from the south knocked witness and deceased from the track, running over and injuring deceased, from which injuries he died about 3 o'clock next morning, after suffering intensely. Witness was looking towards the south, the direction whence the train that struck them was coming, and whither the passing train was going. Witness says he did not see the train that struck them until just a moment before, and for the reason that it was so dark, and that there was no light on the caboose. Witness was asked, "Did you listen for any trains while you were there?" and replied: "I do not know that we listened, and the train was passing right in front of us. I do not know that we particularly listened for the train. I do not recollect about our listening for the approach of a train." He further said: "Had we listened, I do not think we could have heard the train that was coming from the south, because of the one moving right in front of us. The train that struck us was approaching very stealthily. It made very little noise." Witness was then asked, "How was the one that was going south?" and replied: "I do not know. It was just making

ordinary noise. It was not running at a very high rate of speed; probably, three or four miles an hour. They were pulling out of the switch.” Witness did not hear any bell ringing on the train that was pulling out. Witness was then asked at what rate the train was moving that struck them, and replied: "I do not know that. I should judge, from the distance it knocked me, it must have been going at least eight miles an hour. I do not know, of course. I could not tell anything about that, because it just bumped up against us. I should think, though, about six or eight miles an hour." Witness indicated, by the distance to a certain object which he pointed out, that the train knocked them about 15 feet. It was shown by this witness, who was a physician, that he had examined the deceased, Dr. Martin, that day, for life insurance, and that deceased's hearing was good, while witness' hearing was defective, both ears being affected. The crossing where Dr. Martin was killed was in the main part of the city, and people were constantly passing over it. Two locals, running from Knoble to Wynne, did all their switching at Wynne. This occurred every day. The train had been doing switching about two hours when the accident took place.

This was all the evidence bearing upon the question of contributory negligence. A dispassionate view of it, we think, can lead to but one conclusion, viz.: Had the deceased made that use of his senses which the law requires of one before going upon, or while crossing over, a railway track, his death would not have occurred, notwithstanding the negligence of the company. We make this statement knowing the settled law to be that the question of whether there is negligence or contributory negligence is always for the jury, unless the facts are undisputed, and susceptible of but one conclusion. Railway Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748; Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Railway Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569; Railway Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1014; Kirksey v. Railway Co., 9 C. C. A. 321, 60 Fed. 999; Railway Co. v. Hathaway, 29 Fed. 489; Seefeld v. Railway Co., 70 Wis. 216, 35 N. W. 278; Hendricks v. Meadows, 154 Mass. 599, 28 N. E. 1054; Railway Co. v. Van Steinburg, 17 Mich. 99; 2 Wood, R. R. 1458, and cases cited; Beach, Contrib. Neg. §§ 450, 451; Thomp. Neg. 1239; Artz v. Railway Co., 34 Iowa, 153.

It is equally as well settled, where the facts are undisputed, and there could not, in reason and fairness, be any difference of opinion as to the conclusion to be drawn from them, that the question of negligence or contributory negligence is one of law. Railway Co. v. Ives, supra; Seefeld v. Railway Co., supra; Mann v. Railway Co., 128 Ind. 138, 26 N, E. 819; Mynning v. Railway Co. (Mich.) 31 N. W. 147; Railway Co. v. Ritchie, 102 Pa. St. 425; Apsey v. Railway

Co., 83 Mich. 440, 47 N. W. 513; Emry v. Railway Co., 109 N. C. 589, 14 S. E. 352; 2 Wood, R. R. 1458, and cases cited; Straugh V. Railway Co., 65 Mich. 706, 36 N. W. 161; Railway Co. v. White, 46 Ill. App. 446; Gardner v. Railway Co., 97 Mich. 240, 56 N. W. 603; Grippin v. Railway Co., 40 N. Y. 34; Grostick v. Railway Co., 90 Mich. 594, 51 N. W. 667; Railway Co. v. Priest, 50 Kan. 16, 31 Pac. 674; Laveren v. Railway Co. (Iowa) 10 N. W. 268; Artz v. Railway Co., 34 Iowa, 153, and numerous cases there cited; Beach, Contrib. Neg. §§ 447, 453; Abend v. Railway Co., 111 Ill. 202; Fernandes v. Railway Co., 52 Cal. 45; Thomp. Neg. 1236. The latter proposition finds practical application in the facts of this record. The uncontroverted proof is that deceased and his companion walked over the west track, and upon the main line, where they stopped and stood for a "second or moment," talking, waiting for the train on the east track to pass out, when the backing train struck them. The language of the witness was, "when we walked upon the track of the main line." This language shows conclusively that they knew, not only that they were upon the railway track, but the particular track upon which they were standing. True, there was some evidence that deceased was a stranger in the town, and not familiar with the location; but it was also shown that he had, but a short while before, passed over the same crossing, and the language of the witness, quoted above, indicates affirmatively that they knew where they were. There is no proof that they stopped, or that they listened for the approach of a train, before they walked upon the track of the main line. But it is contended by the appellee that there is also an absence of direct proof that they did not take these precautions, and that, as the burden is upon the appellant to show contributory negligence, he must fail for want of proof to overcome the presumption of due care. The burden of proof, as the court correctly told the jury, was upon the railroad to show contributory negligence, unless it was shown by evidence for the plaintiff. It would be difficult, if not impossible, for the railway company to show by direct testimony that deceased and his companion did not use their senses of sight and hearing. Whether they did or not was a fact which might be said to be peculiarly within their knowledge. But every requirement of the law, as to the appellant, concerning the burden of proof, has been met by the proof for appellee. This shows that a witness whose hearing was and had been defective for three or four years heard, at the distance of about 12 feet, the noise of the train that was passing out. This train was ringing no bell, and only making ordinary noise. Does it not follow, as an undisputable inference, that deceased, whose hearing was shown to be unimpaired, would also have heard at the same, or even greater, distance, the noise of the train that struck

| him, had he listened? him, had he listened? This is the only reasonable conclusion. For, although the witness says that the train which struck deceased was approaching stealthily, and gave it as his opinion that it could not have been heard, had they listened, yet he says he thought it was going six or eight miles an hour, which was about twice as fast as he thought the other train was going, which he did hear. His opinion, therefore, as to what he could not have heard, had he listened, is shown to have been fallacious, by what he actually did hear. Besides, the deceased could not depend upon another's senses to warn him of danger. His hearing was better than that of the witness, his companion. Railway Co. v. Wiwirowski, 124 N. Y. 420, 26 N. E. 1023.

It is not negligence, per se, to be or go upon a railway track. That depends entirely upon the circumstances; having in view the dangers to be apprehended, and the precautions which are, or should be, used to avoid them. A railway track much always be regarded as a dangerous place. Although trains usually have their stated times, and come and go with more or less precision, still accidents and various contingencies cause delays and irregularity in the running of trains, so that no one has the right to expect that a track may not be used by a passing train at any time. Hence, the track itself is a perpetual reminder of danger. Railway Co. v. Moseley, 6 C. C. A. 641, 57 Fed. 921; Railway Co. v. Cavenesse, 48 Ark. 106, 2 S. W. 505; Railway Co. v. Matthews, 36 N. J. Law, 531. This is not the case of one who is suddenly and unexpectedly placed in a situation of danger which is calculated to bewilder the understanding and distract the senses. There was no danger from the train in front of deceased. for he could see that it was just passing out, and almost over the crossing. The noise it was making was but ordinary, and there is no reason why it should have prevented his listening for a train on the intervening tracks, for there was his only danger. True, the witness said that the night was so dark that they could not see more than three feet from them. But if one sense was impaired, or rendered useless, the other should have been used with the greater diligence. Fletcher v. Railway Co., 149 Mass. 127, 21 N. E. 302; Wheelwright v. Railway Co., 135 Mass. 225; Railway Co. v. Terry, 8 Ohio St. 570; Railroad Co. v. Feller, 84 P'a. St. 226; Railway Co. v Haslan, 33 N. J. Law, 147; Steves v. Railway Co., 18 N. Y. 422; Thomp. Neg. p. 431, § 9; Id. p. 1203, § 51. The case we have under consideration is that of one who voluntarily went upon a railway track, without stopping, and without listening for the approach of a train, and stood there for a "second or moment, talking," until he was killed. The failure to take one or both of these precautious was the proximate cause of his death, and there was nothing in the proof to

justify or excuse such failure. 2 Wood, R. R. § 319. Some authorities hold that it is the duty of a traveler approaching a railroad crossing to stop, and look and listen for the approach of a train, before proceeding over. Railway Co. v. Moseley, 6 C. C. A. 641, 57 Fed. 921; Wilds v. Railway Co., 29 N. Y. 315; Schultz v. Railway Co., 5 Reporter, 376; Railway Co. v. Bentley, 66 Pa. St. 30; Railway Co. v. Beale, 73 Pa. St. 507; Railway Co. v. Stinger, 78 Pa. St. 219; Railway Co. v. Barnett, 59 Pa. St. 259. We have not laid down the rule thus strictly, but a person who would pass over a railroad at a crossing, or elsewhere, must do all that a man of ordinary care would do under similar circumstances to avoid any probable or possible danger from a passing train. Whether that requires stopping, as well as looking and listening, depends upon whether, without it, the danger to be apprehended could be so well ascertained and averted. Cullen v. Railway Co., 54 Ark. 431, 16 S. W. 169; Johnson v. Railway Co., 59 Ark. 122, 26 S. W. 593; Railway Co. v. Tippett, 56 Ark. 457, 20 S. W. 161. The law has fixed the above as the measure of duty, and a failure to exercise one or all of these precautions, as the occasion may demand, without any contravening circumstances, is negligence, pure and simple. Beach, Contrib. Neg. § 452; Whitt. Smith, Neg. 401, note; Thomp. Neg. pp. 426, 1238. A "second or moment" of time often costs a man his life. If the deceased, Dr. Martin, had but stopped for a moment before passing over the west track, or before going upon the main track, instead of after he had gone upon it, or had he but listened before going and stopping upon the same, doubtless he would have escaped. For, if he had stopped but a "second or moment" before going on the track, the train would have passed, or, if he had listened, he would have heard it. This was a sad and deplorable catastrophe, to be sure; but we are vinced that the proof for appellee raises such a presumption of negligence on the part of her intestate that, in the absence of any direct testimony to the contrary, it should be taken as conclusive, and so declared as a matter of law. Railway Co. v. Whitacre, 35 Ohio St. 627; Beach, Contrib. Neg. §§ 449452; Cotton v. Wood, S C. B. (N. S.) 568; Cornman v. Railway Co., 4 Hurl. & N. 781; Thomp. Neg. pp. 426, 1237; Greenleaf v. Railway Co., 29 Iowa, 22; Hathaway v. Railway Co., 29 Fed. 489; Shear. & R. Neg. § 56, and cases cited; Railway Co. v. Matthews, 36 N. J. Law, 531. It is not contended that the appellant, by the use of ordinary care, could have avoided the injury, had his situation been known. We find no error in any of the instructions, except that those leaving the jury to determine whether the deceased was guilty of contributory negligence were abstract, and, in that sense, erroneous. Railway Co. v. Tippett, 56 Ark. 457, 20 S. W. 161. Reversed and remanded.

v.33s.w.no.10-68

SPARKS v. DAY et al. (Supreme Court of Arkansas. Jan. 18, 1896.) HOMESTEAD-SELECTION-CAPRICIOUS IRREGU

LARITY.

Where one claiming a homestead exemption from a town lot so selects it as to almost surround the portion of the lot remaining, and shuts it off from any opening on a public street, to the great loss of creditors, and without any corresponding benefit to himself, such selection will be set aside as capricious and arbitrary.

Appeal from circuit court, Cross county; James E. Riddick, Judge.

Action by Day & Bailey against G. N. Sparks. Defendant, claiming a homestead exemption, selected it from a half block in such manner as to leave the remaining portion without an opening on a public street. From a judgment setting aside the selection, defendant appeals. Affirmed.

N. W. Norton, for appellant. T. E. Hare, for appellees.

WOOD, J. The appellant, Sparks, filed a schedule before the clerk of the circuit court, claiming his homestead, and selecting it by metes and bounds. It is situated in the town of Wynne, and is of a value that required the area to be reduced to one-quarter of an acre. In selecting his quarter of an acre, he took, as a part of it, a walk two feet wide to his stable, and a walk two feet wide from the stable to the servants' house. The parcel left after he made his selection abutted on an alley, but nowhere on a street. The following plat shows the shape of the homestead selected, and the residue, after the homestead was laid off:

homestead as contained in his schedule is as follows: "Commencing at the southwest corner of the east half of block five, thence east 96 feet, thence north 216 feet, thence west 96 feet, thence south 20 feet, thence east 20 feet, thence north 18 feet and 6 inches, thence east 58 feet, thence south 23 feet, thence east 17 feet and 6 inches, thence south 134 feet, thence west 20 feet, thence north 30 feet, thence west 12 feet, thence north 27 feet, thence west 50 feet, thence south 134 feet, to point of beginning, all in the town of Wynne, Arkansas." The homestead as thus selected almost surrounds the residue, cutting it off from access to any street, and leaving only an outlet of 62 feet on an alley on the west side thereof. It was in proof that this manner of the selection and the peculiar shape in which it left the residue, making it inaccessible to the street, would make it of little value; that in this shape it would probably be worth one hundred and forty or fifty dollars, but that, if the homestead had been selected so as to give a street front to the remainder, it would be worth two or three times that amount, and would not reduce the value of the homestead. The appellant said that he would not have made much objection to laying off his homestead so as to give a street front of 58 feet on the north to the parcel left, but preferred, if the law would allow him, to take it the way it had been designated. The court below found that the homestead was "selected and laid off in an arbitrary, capricious, and unreasonable shape, to the injury of plaintiffs, and without any corresponding benefit to the defendant,", and declared such selection of no effect and void, and thereupon set aside and quashed the supersedeas, and gave leave to defendant to file another schedule. The appellant seeks to reverse the judgment.

The supreme court of Alabama, in Jaffrey v. McGough, 88 Ala. 648, 7 South. 333, uses this language, which fits this case, and exactly expresses our views: "An inspection of the remarkable diagram of the homestead attempted to be selected in this case, running, as its boundaries do, in a zigzag direction, and shifting towards every possible point of the compass, shapeless in its capricious irregularity, and without apparent design except to take unjust advantage,-a most casual inspection of it, we repeat,-is the surest demonstration that such a thing cannot be tolerated by the law." Mr. Thompson, in his work on Homesteads and Exemptions, says there is a "growing disposition on the part of the courts, in determining what is to be included in the homestead, to take into consideration the legal subdivision of land, such as public surveys and recorded town plats." Thomp. Homest. & Ex. § 120. And Mr. Waples, we think, announces the just and correct doctrine when he says "that, in the absence of any statute prescribing the form of the homestead, courts ought never

to permit a selection manifestly made in disregard of the rights of others"; and he continues: "Creditors are interested in the parts of a tract which are not exempt; and it never was the intent of the legislature to cut them off from this remedy against nonexempt property, while protecting a limited quantity as a homestead. While the confinement of a homestead to the regular shape of *** city lots is not a rule, because not everywhere practicable, it may be laid down as a rule that one authorized to select. declare, and record a homestead with a quantitive limitation cannot be permitted to carve it out of his land in such form as to leave the remainder worthless, or to impair its value, so that creditors shall be injured." And we add, especially would that be the case where it is shown, as here, that meandering was of no benefit to the homestead claimant. Wap. Homest. & Ex. pp. 158, 160. It follows that the judgment of the lower court is correct, and must be affirmed. So ordered.

MANSUR-TIBBETTS IMP. CO. v. DAVIS. (Supreme Court of Arkansas. Feb. 8, 1896.) ATTACHMENT-RIGHT TO OPEN AND CLOSE.

Under Sand. & H. Dig. §§ 2927, 2928, 5820, providing that the party on whom rests the burden of proof shall open end close, and that the burden of proof lies on the party who would be defeated if no evidence were given, plaintiff in attachment, as against intervener, has the right to open and close. where he admits the possession of and sale to intervener by defendant prior to the attachment.

Appeal from circuit court. Miller county: Rufus D. Hearn, Judge.

Action in attachment by Mansur-Tibbetts Implement Company against Robert Ellis. N. L. Davis intervened, claiming the goods by a purchase for defendant. There was a judgment for intervener against plaintiff, and plaintiff appeals. Reversed.

W. H. Arnold, for appellant. T. E. Webber, for appellee.

PER CURIAM. This was an attachment by the Mansur-Tibbetts Implement Company against Robert Ellis in the Miller circuit court, on the ground that he had disposed of his property with the fraudulent intent to cheat, hinder, and delay his creditors. N. L. Davis, the appellee, interpleaded, claiming the goods by purchase from the defendant. Defendant, Ellis, filed affidavit controverting the affidavit for attachment; and, on the trial of this issue, judgment was for plaintiff for its debt, and the attachment was sustained. Thereupon plaintiff filed answer to interplea, admitting the sale by defendant to interpleader, and the delivery to him of the possession of the goods sold, as alleged in the interplea, previous to the issuance of the writ of attachment, and that the property was so in the possession of the

interpleader when the writ of attachment was served by the sheriff, but alleged that at the time of said sale by defendant, Ellis, to interpleader, Davis, the defendant was largely indebted, and was in fact insolvent, and that said sale and transfer was without consideration, and for the purpose of cheating and defrauding the defendant's creditors, and of hindering and delaying them in the collection of their debts. Before the introduction of testimony, plaintiff asked to assume the burden of proof, and this was refused; and after the evidence was all in, and the instructions settled, plaintiff moved the court, as it had admitted the sale to and possession of the interpleader, and thus made a prima facie case for him, and as the remaining issue was as to the bona fides of said sale, as to which issue the burden was on it, to permit it to open and conclude the argument. This motion was overruled, and plaintiff reserved exceptions.

Section 2927, Sand. & H. Dig., reads thus: "The party holding the affirmative of an issue must produce the evidence to prove it." Section 2928: "The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side." The third subdivision of section 5820, Sand. & H. Dig., reads thus: "Third. The party on whom rests the burden of proof in the whole action must first produce his evidence. The adverse party will then produce his evidence." The sixth subdivision of the same section reads thus: "Sixth. The parties may then submit or argue the case to the jury. In the argument the party having the burden of proof shall have the opening and conclusion; and if, upon demand of his adversary, he shall refuse to open and fully state the grounds upon which he claims a verdict, he shall be refused the conclusion." The majority of the court are of the opinion that, upon the state of case here made by the pleadings, the motion of plaintiff should have been sustained, and that, in overruling the same, the court erred, and that the error is such as that the judgment must be reversed. Railway Co. v. Taylor, 57 Ark. 137, 20 S. W. 1083: Tobin v. Jenkins, 29 Ark. 151. In other respects this cause is on a footing with the cases of Dry-Goods Co. v. Davis (No. 2.811), and Stern, Laner, Shohl & Co. v. Davis (No. 2,881), both affirmed without opinion, determined orally to-day, and would be affirmed except for the error mentioned. versed, and remanded for further proceedings, not inconsistent with this opinion.

HILL v. STATE.

(Court of Criminal Appeals of Texas. Jan. 22, 1896.)

HOMICIDE-INSTRUCTION.

1. A conviction of murder will be reversed, if the charge was erroneous and prejudicial, though no exception was reserved.

2. On trial for murder, it appeared that defendant, after shooting a man, was stopped on the street by deceased, who showed no intention to arrest him, when defendant pulled his pistol, deceased also pulled his. and both shot together. Deceased was killed. Held that, though there was no evidence that deceased saw defendant shoot the other man, or that he intended to arrest him, an instruction is to the right of a citizen to arrest one who had made an unlawful assault in his presence was not prejudicial, where instructions as to the right of self-defense were fully given.

Appeal from district court, Polk county; L. B. Hightower, Judge.

Jin Hill was convicted of murder, and appeals. Affirmed.

Mann Trice, for the State.

HURT, P. J. The appellant in this case was tried under an indictment charging him with murder, was convicted of murder in the first degree, and his punishment assessed at death, and from the judgment of the lower court he prosecutes this appeal. The court gave to the jury a charge on murder in the first degree, murder in the second degree, manslaughter, and self-defense, and also gave a charge to the jury on the right of a private person to arrest a person guilty of a felony committed in his presence or within his view. No exceptions were reserved to the charge of the court, and we have examined the record carefully to ascertain if said charge, in any part thereof, contains such error as would operate to the prejudice of the defendant, the rule in such case being that, notwithstanding no exception was reserved, this court will reverse on account of said erroneous prejudicial charge. The facts of this case, stated briefly, show that, early in the morning of the day of the homicide, somewhere about 8 o'clock, the defendant declared to a comrade, at the sawmill, where they were working, that he was going to the house where he slept, some 200 yards distant, and get his pistol, and kill Bill McLeod and Ella Mitchell. (The occasion of such determination on his part is not disclosed.) He went, however, to the shanty mentioned, and from thence came to the house where Bill McLeod and Ella Mitchell were, and immediately began a difficulty with McLeod. Three or four shots were fired by him, one taking effect in McLeod's head, producing a scalp wound, and another also inflicting a scalp wound on one Pasley, who interfered to prevent the difficulty. During the mêlée, Ella Mitchell fled to another house, near by. After this difficulty, the defendant returned to the house where he slept, came out directly, and then continued in search of Ella Mitchell. He went to the house where she had entered, and insisted on admittance. Two negro women there attempted to prevent his entrance. He threw one aside, and, the other still clinging to him, he drew his pistol on her, and told her that if she did not turn him loose, and let him go in the house, he would kill her. She turned him loose,