closed. Therefore, if an unconditional offer | accepted by appellants, that their bid was is made, and that offer accepted, this will accepted by appellants, that they subseconstitute an obligatory contract, although quently agreed that the time for the comthe parties also understand that a written pletion of the building should be 100 workcontract embodying the terms should be ing days, and that the damages for delay in drawn and executed." the completion of the building should be $25 per day. It appears, then, from their testimony, that all the terms of the contract were agreed upon, and its reduction to writing was intended merely for facility of proof as to its terms. In such cases the provision for a contract in writing is not inconsistent with the present contract, and this is especially true in a case where the things to be done are provided for in writ ten plans and specifications, which are so definite and detailed as to present a perfect guide as to the rights and duties of the respective parties in the erection of the proposed building. According to the evidence for appellees, the minds of appellants and appellees were in accord as to all the provisions of the contract, and the writing was intended to exhibit and set forth just what they had agreed upon and understood. Appellants did more than telling appellees that they were the lowest bidders. According to the testimony of appellees, they told them that they had gotten the job, and that their architect was then working on the contract. As we have already seen, the terms of the contract were then as definite and certain as they could be, except as to the time of payment, the time of completion of the work, and the amount of damages for delay in the completion of the work. The time for completion of the work and the damages for delay were subsequently agreed upon.

The principles of law applicable here are well stated in the case of Rosster v. Miller, 3 App. Cas. (Eng.) at page 1151, where Lord Blackburn said: "I quite agree with the Lords Justices (wholly independent of the statute of frauds) it is a necessary part of the plaintiff's case to show that the two parties had come to a final and complete agreement, for, if not, there was no contract. So long as they are only in negotiation, either party may retract; and though the parties may have agreed on all the cardinal points of the intended contract, yet, if some particulars essential to the agreement still remain to be settled afterwards, there is no contract. The parties, in such a case, are still only in negotiation. But the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties, does not, by itself, show that they continue merely in negotiation. It is a matter to be taken into account in construing the evidence and determining whether the parties have really come to a final agreement or not. But as soon as the fact is established of the final mutual assent of the parties, so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed." To the same effect, see Western Roofing Tile Co. v. Jones, 26 Okl. 209, 109 Pac. 225, Ann. Cas. 1912B, 127; 7 A. & E. Ency. of Law, 140; Page on Contracts, vol. 1, par. 54; Boysen v. Van Dorn Iron Works, 94 App. Div. 95, 87 N. Y. Supp. 995; Lowrey v. Danforth, 95 Mo. App. 441, 69 S. W. 39; Green v. Cole, 103 Mo. 70, 15 S. W. 317; International Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93; Lane v. Warren, 53 Tex. Civ. App. 122, 115 S. W. 903; Disken v. Herter, 73 App. Div. 453, 77 N. Y. Supp. 300.

In the application of the principles above announced to the facts in the case at bar, it cannot be said that the undisputed evidence shows that the agreement made was not the end of negotiations between appellants and appellees. Counsel for appellants insist that because the contract was to be reduced to writing and a bond tendered accompanying it, and because the notice and advertisement and the plans and specifications did not provide a time of payment to the builder and a time for the completion of the contract, that no contract could exist without such writing.

[3] The testimony of appellees shows that the bond provided for in the notice and ad

[4] Moreover, where a contract fails to specify a time for completion it will be implied that a reasonable time for performance was intended. 6 Cyc. 66; Long v. Chas. T. Abeles & Co., 77 Ark. 150, 91 S. W. 29.

[5] In regard to the time of making payment, it may be said that, in the absence from the contract of any provisions on the point, the time of making payment is presumed to be on completion of the work. Cyc. 76; Wright v. Maxwell, 9 Ind. 192; Shanks v. Griffen, 14 B. Mon. (Ky.) 153.

6

[6] The contract, then, could not be said to be too uncertain and indefinite for enforcement. Under the instructions of the court the jury in effect found that the contract was made or entered into, that its performance was to be immediately entered upon, that the preparation of the written form of the contract was matter to be subsequently attended to, and that the written contract was not intended to be a condition precedent to the taking effect of the contract. The verdict of the jury was supported by the evidence, and the court did not err in refusing to direct a verdict for appellants.

No other assignments of error are urged for the reversal of the judgment, and the

BLAGG et al. v. FRY et al.
(Supreme Court of Arkansas. Nov. 25, 1912.)
APPEAL AND ERROR (§ 185*)-PRESENTATION
BELOW-SUBSTITUTION OF JUDGES.

A party who went to trial when a special chancellor was substituted cannot first object on appeal that when the regular chancellor announced his disqualification, special chancellor was elected to try the case.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1176, 1375; Dec. Dig. 185.*]

lar chancellor announced his disqualification,
and that the special chancellor was elected
and qualified in the manner provided by the
Constitution. The parties went to trial be-
fore him without objection. The proceedings
were had at a regular term of the court, and
the usual presumption must be indulged in
in favor of their regularity.
The decree will be affirmed.

ST. LOUIS, I. M. & S. R. CO. v. BROGAN.

Appeal from Circuit Court, Yell County; (Supreme Court of Arkansas. Oct. 28, 1912.) Tom D. Patton, Special Judge.

Action by H. N. Fry and others against B. D. Blagg and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Jo Johnson, of Ft. Smith, for appellants. Priddy & Chambers, of Danville, for appellees.

1. APPEAL ANd Error (§ 232*)—OBJECTION TO
EVIDENCE.

the testimony and conclusions arrived at "from
Objections, in an action for injuries, to
an examination made by the witness of X-ray
was no 'X-ray expert," reserved in the motion
pictures,_ when the witness testified that he
for new trial, did not assign error from the
admission of testimony showing a controversy
among the physicians as to the nature of plain-
dition as a result therefrom.
tiff's injuries and his present and future con-

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1351, 1368, 1426, 1430, 1431; Dec. Dig. § 232.*]

DAMAGES (§ 132*)-PERSONAL INJURIES—
EXCESSIVE RECOVERY.

Where a locomotive fireman, 27 years of age, in good health, earning from $125 to $150 per month, with prospect of an early promotion to the position of engineer, paying $175 to $250, was injured, and one leg would have to be amputated, the bone of one shoulder was broken and would probably not unite, and he was permanently incapacitated for performing trial had endured intense suffering for over the duties of his vocation, and at the time of three months, and been at an expense of about $500 for surgical treatment, a verdict for $25,000 was not excessive.

Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*] [Ed. Note. For other cases, see Damages, 3. DAMAGES (8 187*)—EVIDENCE OF LIFE EX

PECTANCY.

Where there was evidence of plaintiff's age at the time of his injury, that he was then could estimate the probable duration of his in good health, and of his occupation, the jury life, though mortuary tables were not in evidence.

HART, J. Appellees instituted this suit in the chancery court against appellants. The record shows that, when the case was reached on the regular call of the calendar, the Hon. J. G. Wallace, the regular chancel-2. lor, announced his disqualification to sit in the cause. Whereupon the clerk of the court proceeded to hold an election for a special chancellor to hear said cause, which resulted in the election of Hon. T. D. Patton, a member of the bar of the court, as such special chancellor. The regular chancellor then administered to him the oath required by law, and upon the regular chancellor vacating the bench the special chancellor assumed the bench, and proceeded to try the cause. A decree was rendered in favor of the appellees, the plaintiffs below, against appellants, the defendants below. The record recites that both the plaintiffs and defendants were present at the trial. The case is here on appeal. It is now insisted by counsel for appellants that the regular chancellor had no right to withdraw and to cause the substitution of a special chancellor, and for this reason the decree should be reversed. In the case of Sweeptzer v. Gaines et al., 19 Ark. 96, the court held: "In order to present any question in the appellate court as to the right of a special judge to preside in the trial of the cause, his power and authority must be questioned in the court below, and the grounds of the objection stated in the record." Both appellees and appellants were present at the trial of the cause in the chancery court, and, so far as the record discloses, no objection was at any time or in any manner made to the special chancellor acting as judge in the case. This court will not now for the first time hear such an objection. As held in the case of Sweeptzer v. Gaines, supra, in order to be available here, the power and authority of a special chancellor must have been questioned in the chancery court. The record shows that the regu

[Ed. Note.-For other cases, see Damages, Cent. Dig. 509; Dec. Dig. § 187.*] 4. TRIAL (8 296*) - INSTRUCTIONS - ERRORS

CURED BY OTHER INSTRUCTIONS.

An instruction, in a fireman's action for injuries from his engine colliding with a car standing on a side switch, to find for plaintiff if he was injured, in the performance of his duties, from his engine colliding with a car which defendant, in its failure to exercise reasonable care had negligently placed and left standing, and which caused the collision, was not erroneous, as assuming that defendant was negligent, when followed by other instructions clearly showing the court's intention to submit to the jury the question whether defendant was negligent in placing the car on the side switch.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]

5. MASTER AND SERVANT (§ 217*)-INJURY TO SERVANT-ASSUMPTION OF RISK.

Where a locomotive fireman is injured from a collision between his engine and a car on a side switch, and the collision results from

the railroad company's failure to exercise rea- | Company. From judgment for plaintiff, desonable care to permit safe passage for the fendant appeals. Affirmed. engine, the fireman is not chargeable with having assumed, as an incident of his employment, the risk of being hurt, unless he actually knew of the dangerous position of the car, and realized the danger, and then voluntarily exposed himself to it.

Appeal from Circuit Court, Hot Springs car, appellee says, caused the headlight to County; W. H. Evans, Judge.

reflect back in his eyes. He could not have Action by F. T. Brogan against the St. seen the car standing out at the side and Louis, Iron Mountain & Southern Railway | ahead of the engine because of the light re

flecting in his eyes. The signals for working | been using for 27 years to see if it would purposes were given on the engineer's side. As his engine was propelling, at a slow speed, the cars ahead of it along the lead track, the cab of the engine collided with a car standing on the side track leading out from the lead track on appellee's side of the engine. The cars ahead of the engine on the lead track had passed the car standing on the side track, but the cab of the engine cornered with it. When appellee heard the crash, he endeavored to get out through the front window; but his leg was caught, and he sustained serious injuries, which will be hereinafter described.

Appellee did not know that the box car with which the engine collided was so close to the lead track on which the engine was moving. This car had been dropped into the side track from the lead track, and left there by the engine on which the appellee was at work. After the box car had been dropped in on the side track from the lead track, the engine had pulled back onto the lead track with the remaining five cars of the string, and as these cars were pushed forward by the end of the side track the collision occurred by which the appellee was injured. The foreman of the switch crew directed the movement of the switch engine and the loIcation of the cars. He had placed the car in the position where it was at the time it struck the engine. He states that the appellant company had rules covering the placing of cars in the clear on side tracks. The rule required that "conductors must see that brakes are set on cars they leave on sidings, and when the siding is on a grade they must, when practicable, couple all the cars together, and, in addition to setting the .brakes, the wheels must be blocked and safety switches properly adjusted. When not in use, safety switches must be left open. switching, trainmen must know that brakes are in good order before cutting off cars."

In

pass, and in his judgment he thought it would. The brakes were not set on the box car that collided with the engine, nor was any block placed under the wheel on the end of the car towards the lead on which the engine was moving. He stated that it was not necessary. He kicked the car in on the track, which consisted in giving a cut of cars a start, and then cutting the car loose from the rest, and it rolls into the track. On that occasion he kicked the car in, and walked up the lead, and stood on the rail, and held his hand out, taking the precaution above mentioned.. The witness testified that the box car would "have no reflection on a person's eyes looking ahead. If you were looking directly at the light alone, it would; but, where you are looking at the reflection, it does not."

Appellee brought this suit on November 6, 1911, and in his complaint he alleged that "the cab in which he was working was struck by a car that had been negligently left standing on the side switch north of the one in which plaintiff's engine was turning, and the left side of the cab was crushed in upon the plaintiff and seriously injured him"; that "said accident and injury was caused by the negligence of the defendant and its servants in placing and leaving on the side track, so near the lead switch, the car which struck the locomotive on which plaintiff was at work, and in negligently directing the train on which plaintiff was working to move in to the side switch." The defendant answered, denying the material allegations of the complaint, and setting up that the plaintiff was injured by his own negli. gence in failing to keep a lookout, which it was his duty to do, and also setting up that plaintiff "was as well informed of the dangers from cars being left too close as any of defendant's other servants, and assumed the risk of such injury as might occur thereby."

The above are substantially the facts on the issues of negligence, contributory negligence, and assumed risk. The court granted and refused requests for instructions, to which appellant duly excepted, and which we will comment upon in the opinion. The jury returned a verdict for $25,000, judgment was entered for that sum in favor of the appellee, and this appeal has been duly prosecuted. Other facts are stated in opinion.

The rule refers to conductors, and in switchyards the yard foreman is the same as the conductor. There was a downgrade there to the east from the south end. The grade there was such as to cause the cars to go away from the lead, and the engine was headed east when they kicked the car in on the track where it stood when the collision occurred. The foreman stated that according to his judgment the rules of the company were complied with in placing the cars there that night. The downgrade would be to prevent the car coming out, if moving. The brake would not have to be set on that car. If the brakes were set on the cars below, they would hold that car. He went down and got on top of the rail, which was WOOD, J. (after stating the facts as the custom and the rule, and stood on top of above). The appellant contends that the verthe rail and held his hand out, and ordina- dict was excessive, caused "partially at least rily, if it cleared his fingers, holding his arm by the exploitation" in the testimony of a out straight, as he did that night, it would "disagreement amongst the doctors who clear a car or an engine. He adopted the treated appellee at the hospital and those

E. B. Kinsworthy, R. E. Wiley, and W. G. Riddick, all of Little Rock, and W. V. Tompkins, of Prescott, for appellant. Robertson & De Mers, of Little Rock, for appellee.

the vocation that he had selected and for which he was qualified. In fact, it was practically certain from the testimony that ap pellee, by reason of his injuries, had lost his earning power. His left leg was so badly crushed as to necessitate amputation of same above the knee, and the bone of the left shoulder, that helps to support and gives motion to the arm, was broken; and one of the physicians testified that it had been broken so long that "it would be very difficult to get down in there and wire it together." It was a question, says he, "whether the bone could ever be brought up together and kept in place." "The effect of the failure of the broken bone to reunite would cause the shoulder to drop down and the bone to come up. As a consequence he could not use the left arm without a good deal of pain, as the fragments would be rubbing together all the time, and it would be impossible for him to get around on a crutch at all." There was a severe injury to the back, that would give appellee "trouble with his spinal column and

whether his injuries were properly treated at [2] Moreover, the verdict was not excesthe hospital, and as to the present and fu- sive. Appellee, at the time of his injury, was ture results of his injuries as affected by that 27 years of age and in good health. His treatment." The testimony of physicians on wages were from $125 to $150 per month, and behalf of appellee, one of whom had treated he was in line of promotion, after three him for 12 days preceding the trial, tended years' service, to the position of engineer, to show that when they examined appellee his whose average monthly wage was $175 to broken leg was unhealed; that, notwithstand- $250. The jury were warranted in the coning the efforts of the physicians at the hos-clusion that appellee would be permanently pital to save appellee's foot from amputa- incapacitated for performing the duties of tion, same was now necessary, in order to save appellee's life; and that by reason of a failure to operate at first, and on account of the prolonged treatment in trying to save the limb, the bone had decayed, and the limb had become so infected that it would have to be amputated above the knee, whereas, in their opinion, if the limb had been amputated soon after the injury occurred, it would have been only necessary to amputate between the ankle and the knee. In describing appellee's injuries, the testimony of physicians in his behalf tended to show that he had a broken shoulder, the bones of which, on account of the long lapse of time since the injury, could not be knit together, because of the decayed bone at the fractured ends. The testimony of the physicians and surgeons on behalf of the appellant, who treated appellee at the hospital where he was taken immediately after his injury occurred, tended to show that the methods adopted by them were the latest and most improved methods for the treatment of injuries such as appellee had received, and were adopted because of the hope they enter-spinal cord for a good many years, and cause tained of saving the appellee's limb. They gave appellee the same treatment that they gave other patients, under similar conditions, in order to save his leg; that the progress towards ultimate recovery had been satisfactory up to the time the patient was taken out of their charge; and that there had been no indication of death of the bone and no infection, and they still believed the bone could be saved.

him to suffer with a nervous condition." Ap pellee at the time of the trial had endured intense suffering for a little over three months. He described his suffering as follows: "I suffered pain, and didn't sleep much of the time. I was awake most of the time at night. I couldn't sleep. My back hurt me. My leg and my heel hurt me so bad that they had to take the wrapping off of the bottom part of my foot, and my heel hurt so bad I couldn't stand it, and it worked independent of the front part. Every time I would move, I could feel the bone. It hurt me every time I moved, and every time I moved my back hurt. My shoulder hurt all the way up in the back of my neck. I suffered all kinds of pain and everything."

[1] Appellant contends here that this disputation among the doctors, as shown by the testimony, prejudiced the minds of the jury, resulting in an excessive verdict. It is sufficient to say of this contention that appellant did not make any objection at the trial to the testimony of the physicians on behalf of appellee describing the nature of appel- The testimony showed that for surgical lee's injuries. Appellant only objected to one treatment appellee would be at an expense of the physicians testifying as to the nature of $500. Appellee at the time of his injury of these injuries, and giving the conclusions was receiving an average of $1,650 per annum he arrived at as to the condition of the in- for his work. It would require nearly $22,jury from an examination made by the wit-000 to purchase an annuity amounting to ness of X-ray pictures, when the witness tes- $1,650 for one during appellee's expectancy tified that he was no X-ray expert. This objection, reserved in the motion for a new trial, does not assign any error growing out of the ruling of the court in permitting testimony showing a controversy among the physicians as to the nature of appellee's injuries and his present and future mental and

of life. If at the end of 3 years he had been promoted to the position of engineer, then his yearly income for his work would have been $2,550, and it would have required over $30,000 to have purchased an annuity for appellee with his expectancy of life at the age of 30 years. In Railway Co. v. Sweet, 60 Ark.