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he was injured by having thrown against him a tie, which appellants denied.

And in the second instruction the court told the jury that it was the duty of the appellants to exercise ordinary care in giving to the appellee a reasonably safe place to work, considering the nature and character of the work to be performed; that appellee claimed that appellants were negligent in this respect; that on this issue the burden of proof was on the appellee to show by a preponderance of the evidence that the appellants required appellee to load ties in a car, and that he did so without fault on his part, with due care and circumspection, and that other employés negligently and carelessly threw a tie at and against him, and that the tie struck him and caused his injuries; that if they so found their verdict should be for the appellee.

In the third instruction the court told the jury that if the appellee was injured through no fault of his own, and that the injury was caused by negligent and careless acts on the part of the employés of the appellants as defined in the instructions, that in fixing the sum to be awarded to him they should take into consideration his pain and suffering, both mental and physical, if any, and his future pain and suffering, if any, his loss of time, if any, the permanent character of the injuries, if any, and give him such sum of money as would fairly and justly compensate him for his injuries. There was a general exception to these instructions.

The court refused to grant appellants' prayer for instruction No. 3, as follows:

"You are instructed that the plaintiff assumed all the usual and ordinary risks and danger arising from and necessarily attendant upon the work in the manner in which it was being done, with reference to the nature of the place of work and the character of the appliances furnished, and in this case if the plaintiff could see that he was liable to be injured, if he was in fact injured, from the manner in which the work was being done, and made no protest, but voluntarily continued in the work, then your verdict must be for the defendants."

But the court modified and gave the same as follows:

"You are instructed that the plaintiff assumed all the usual and ordinary risks and dangers arising from and necessarily attendant upon the work in the manner in which it was being done, with reference to the nature of the place of work and the character of the appliances fur

nished."

The appellants duly expected to these rulings.

the tie where they did in the car, and that the same would, or might, strike and injure him, and he failed to move to a place of safety and was thus injured, then your verdict must be for the defendants." "That the defendants were not the insurers of the safety of the plaintiff while he was engaged in work for them, but safety, that is, such care as an ordinarily pruwere required to use only ordinary care for his dent man would have used for his own safety under the same circumstances and conditions; that if defendants discharged this duty then it becomes your duty under the law to return a verdict for the defendants."

The court refused appellants' prayer for a peremptory instruction, to which ruling the appellant duly excepted.

H. M. Trieber, J. Merrick Moore, W. B. Smith, and Gardner K. Oliphint, all of Little Rock, for appellants. E. G. Mitchell, of Harrison, for appellee.

WOOD, J. (after stating the facts as above). [1, 2] I. The issues of negligence, contributory negligence, and assumed risk, under the evidence, were issues of fact for the jury. There is no prejudicial error in the rulings of the court in the instructions to the jury on these issues. The instructions given at the instance of the appellants and the appellee announced familiar and correct principles of law and were in conformity with the many decisions of this court. There was no conflict in the instructions when they are considered as a whole. There was substantial evidence to sustain the verdict.

[3] II. The appellants contend that the verdict was excessive. The appellee testified as follows:

"I suffered pretty bad. My leg and arm and whole side hurt me. The tie struck me on my thigh and arm. It bruised the hide on my leg and arm, and my leg turned black clear down to the bottom of it, and was black for a day or So. I did not sleep scarcely any that night; was suffering all night, and suffered a good bit several nights afterwards. It hurts me every day. It causes me to limp as I walk. Some days it hurts me more than others. I make my living by farming. There was a month that I had a complete loss of time. When it comes to plowing or anything like that I cannot do anything like a day's plowing. I cannot do any kind of work with the same capacity that I could before the injury."

Dr. Butler testified that he examined the appellee at the last August term of the court, The witness and again at the trial term.

said: "It seems to me back then it was the same as I don't remember exactly how it it is now. was then, but there is a condition of kind of denseness as though the structures were bound together, which is a natural consequence anyhow in inflammation. In other words, these muscles or tendons, and all structures after an abrasion, grow together. Probably that injury is permanent. It don't give the person complete muscular connection; has a stiffening effect. not recover. Plaintiff has kind of a halting in his step. I don't think there is any difference now in the The court also instructed the jury as fol- likelihood of his recovering." lows:

The court, at appellants' request, instructed the jury that the appellee was required to exercise ordinary care and prudence for his own safety, and if he failed to exercise ordinary care, and such failure contributed to his injury, if he was injured, that he could

On cross-examination the witness testified "If the plaintiff knew, or by the exercise of ordinary care for his own safety could have that he told appellee that he thought the known, that the defendants' servants would drop thing would clear up in a few days. He

thought it would probably be all right after I proceed to the center of such street before turnwhile. ing into same.

"Sec. 3. All drivers of vehicles on said streets who may desire to cross from one side to the other shall drive to the intersection of any two streets before turning to reach such other side of the street. In passing a vehicle going in the The judgment is therefore in all things af- of such vehicle as nearly as possible to the same direction, all drivers shall pass to the left center of the street.

Under this testimony there was no prejudicial error in the instruction of the court on the measure of damages, and the verdict was not excessive.

firmed.

TEMPLE v. WALKER. (No. 167.)
(Supreme Court of Arkansas. Feb. 12, 1917.)
MUNICIPAL CORPORATIONS 706(6)-INJU-
RIES TO PERSONS ON STREETS.

The violation of a municipal ordinance regulating the driving of vehicles on streets is not negligence per se, and though defendant, in turning a corner with his motor car, did not follow the ordinance, it is improper to direct a verdict for plaintiff if defendant violated the ordinance; but the question of defendant's negligence should be submitted to the jury, defendant testifying that the accident was caused by the unexpected turning of plaintiff's horse. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518.]

Appeal from Circuit Court, Miller County; Geo. R. Haynie, Judge.

"Sec. 4. All persons driving vehicles on streets congested or crowded with other vehicles and pedestrians shall drive very slowly, and if driving a motor vehicle shall change to a lower gear and move very carefully, and, if necessary, come to a full stop to allow such vehicles and pedestrians to clear the way."

It will be observed that the instruction

quoted required the observance of this traffic ordinance by imposing upon appellant the duty of going to the center of the street down which he was driving before turning into another, and tells the jury that:

If "his failure to go to the center of said Hazel street before attempting to turn into Fifth street was the proximate cause of said injury, your verdict should be for the plaintiff."

The instruction does not permit the jury to say whether the failure of appellant to go to the center of the street was a negligent act or not, but assumes that it was and di

Action by Mrs. Nettie Walker against T. L. L. Temple. From a judgment for plantiff, defendant appeals. Reversed and remanded. Webber & Webber, of Texarkana, for ap-rects a verdict accordingly if it be found to pellant. Jno. N. Cook, of Texarkana, for appellee.

SMITH, J. Appellee recovered judgment against appellant to compensate an injury sustained by her as the result of a collision between a buggy in which she was riding with an automobile driven by appellant. No error prejudicial to appellant appears to have been committed, except in the giving of an instruction numbered 2, which reads as follows:

"If you find from a preponderance of the evidence that the plaintiff was traveling south on the right side of Hazel street, and that the defendant was traveling north on the right side of said Hazel street, and that the defendant without going to the center of said Hazel street negligently turned his automobile west and attempted or started to turn on the left side of Fifth street near the curb of the left corner of Fifth street, and thereby struck and injured the plaintiff, and that his failure to go to the center of said Hazel street before attempting to turn into Fifth street was the proximate cause of said injury, your verdict should be for the plaintiff."

There was introduced in evidence a traffic ordinance of the city of Texarkana, where the collision occurred, which reads as follows:

"Section 1. That the term 'vehicle,' as used in this ordinance, shall include all buggies, wagons and things of like nature, automobiles, locomobiles, motorcycles and things of like nature.

"Sec. 2. That all persons driving or propelling vehicles upon the streets of this city shall drive on the right side of any and all streets as close to the curb as possible, and when intending to drive into any cross street, shall

be the proximate cause of the injury. This it should not have done. The jury should have been allowed to say, notwithstanding the existence of the ordinance, whether the act of appellant was a negligent one.

Appellant testified that he went to "about" the center of the street before turning, and while he evidently, to some extent, at least, "cut the corner," he says he did so in order to comply with section 3 of the ordinance, which required him to pass the buggy by driving to its left, and that he would have passed the buggy safely without striking it but for the fact that the horse was unexpectedly turned to the left, thereby placing the buggy near the curb and on the wrong side of the street, causing him to strike the horse and buggy before he could stop his car, notwithstanding the fact that it was running at a very low rate of speed.

In the recent case of Bain v. Ft. Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, L. R. A. 1915D, 1021, we had occasion to consider the question of negligence as predicated upon a violation of a city ordinance regulating traffic in its streets, and the leading cases upon the subject are cited there. It was there held that such ordinances are admissible in evidence to be considered in the determination of the question of negligence resulting in an injury which would have been averted had the ordinance been observed; but that the observance or nonobservance of the ordinance is not determinative of the question of negligence. It was there said that:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"It is not within any of the general or special powers conferred upon municipal corporations in this state to create a right of action between third persons nor to enlarge the common law or statutory liability of citizens among themselves."

A later case upon the subject and one which approves the rule announced in Bain v. Ft. Smith Light & Traction Co., supra, is that of Pankey v. Little Rock Ry. & Elec. Co., 117 Ark. 337, 174 S. W. 1170.

For the error indicated, the judgment will be reversed, and the cause remanded for a new trial.

BYERS, County Judge, et al. V. HAYNIE,
Circuit Judge. (No. 142.)

(Supreme Court of Arkansas.

remanded on appeal to the Supreme Court. After the judgment of reversal, the contestants who had been denied an order of suspension by the circuit court applied to the county court, which ordered the removal back of the county seat from the town whence it was removed. The contestees then applied to the circuit judge in vacation for an order restraining the county officers from removing their offices, whereupon contestants applied in the Supreme Court for mandamus to prevent the circuit judge from granting such relief. Held that, as the matter was not of contestants in response to the application for raised before the circuit judge, the appearance the injunction cannot be treated as an effort to secure an order suspending the original judg ment of the county court, and relief granted on the theory that such application was denied.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 43, 44.]

Original petition in mandamus by R. L Byers, County Judge, and others, against George R. Haynie, Circuit Judge. Writ dis

Feb. 5, 1917.) 1. COUNTIES 35(3)-COUNTY SEAT-REMOVAL-ELECTION-CONTEST-JUDGMENT. Where the county court upon a proceeding missed. contesting the result of an election in favor of the removal of a county seat decided in favor of the contestees, the judgment operated as a removal and, unless properly suspended by an order of the circuit court, took effect at once.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 43, 44.]

D. B. Sain, of Nashville, Dan W. Jones and T. D. Crawford, both of Little Rock, and Etter & Monroe, of Washington, Ark., for appellants. Rose, Hemingway, Cantrell, Loughborough & Miles, of Little Rock, Jas. H. McCollum and O. A. Graves, both of Hope,

2. COUNTIES 35(3)-COUNTY SEAT-REMOV- for appellee.

AL-CONTEST-APPEAL-EFFECT.

After the lapse of the term and the taking

of an appeal to the circuit court from a judgPER CURIAM. This is a proceeding inment of the county court upholding the result stituted here for the purpose of controlling of an election for the removal of the county the action of the circuit judge in a county seat, the county court had no further control over the matter, and could not thereafter make seat removal contest pending in the circuit any order with respect thereto. court of Hempstead county on appeal from [Ed. Note.-For other cases, see Counties, the county court. The form of the remedy Cent. Dig. 88 43, 44.] is designated in the petition as an applica

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3. COUNTIES 35(3)—CounTY SEAT-REMOV-tion for a mandamus, but the prayer is that AL CONTEST APPEAL SUSPENSION the circuit court be compelled, by an order AUTHORITY OF APPELLATE COURT. On appeal to the circuit court from a judgment of the county court upholding the result of an election for the removal of the county seat, the circuit judge either in vacation or term may order a suspension of the judgment of removal. [Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 43, 44.]

of this court, to enforce the former judg ment of this court entered in remanding the cause, and that the circuit judge be restrained from interfering with the county officials in holding their offices at the old county seat. The main facts of the controversy are related in the petition. There was an election held in August, 1914, on the question of removal of the county seat of Hempstead counIn a proceeding contesting the result of anty from Washington to Hope, and on the election for the removal of a county seat, judg-face of the returns of that election there was ment was rendered by the county court in favor

4. COUNTIES 35(3)—COUNTY SEAT-REMOVAPPEAL REVERSAL

AL

EFFECT.

CONTEST

of the contestees ordering the removal, and on a majority in favor of removal and in favor appeal to the circuit court the determination of the city of Hope. J. H. Webb and other was upheld. The Supreme Court on appeal re-partisans of Washington in the controversy versed the judgment of the circuit court and re-instituted a contest in the county court, as manded the cause for a new trial. Held, that

the judgment of the Supreme Court did not oper- provided by statute, and J. H. Bowden and ate as a vacation of the judgment of removal other partisans of the city of Hope appearby the county court or entitle the county court to vacate the order of removal.

[Ed. Note. For other cases, see Counties, Cent. Dig. §§ 43, 44.]

ed as contestees. The contest was tried out in the county court, and the result was a judgment in favor of Hope for the removal of the county seat to that place, in accordance with the majority, as shown on the face of the returns of the election. The contest

5. COUNTIES 35(3)-COUNTY SEAT-REMOVAL CONTEST APPEAL REVIEW QUESTIONS PRESENTED IN COURT BELOW. In a proceeding to contest the result of an ants appealed to the circuit court, and, after election for the removal of a county seat, the the transcript was lodged there, an applicacounty court found in favor of contestees and tion was made to the circuit judge for a susordered removal, and such determination was

affirmed on appeal to the circuit court; but pension of the order of removal pending the the judgment of that court was reversed and trial of the cause in the circuit court. The

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

application for suspension was denied by the force. It is a mistake to assume that the circuit court, and no appeal was prosecuted judgment of the Supreme Court reversing the from that order; but subsequently the main judgment of the circuit court had any effect cause was tried in the circuit court, and on the judgment of the county court. This judgment was rendered in favor of the con- court, if it had found the testimony undistestees, from which an appeal was prosecuted puted and fully developed, could have rento this court by the contestants. On the dered final judgment here and remanded the hearing in this court the judgment of the cause to the circuit court for execution, and circuit court was reversed, and the cause in that form there might have been a judgwas remanded for a new trial. Webb v. ment here which operated to set aside the Bowden, 124 Ark. 244, 187 S. W. 461. The judgment of the county court. But no such judgment of this court was rendered in Jan- judgment was rendered here, and the cause uary, 1916, and the cause is still pending in was remanded for further proceedings. The the circuit court awaiting trial. effect of the judgment of the Supreme Court was merely to wipe out the judgment of the circuit court and remand the cause to that court with the same status as if there had never been any trial there. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S. W. 393.

On January 8, 1917, an application was presented to the county court of Hempstead county, then sitting at Hope, asking that the county seat be removed back to Washington, on the alleged ground that the effect of the judgment of the Supreme Court was to order [5] It was intimated by counsel in the such an immediate removal. This petition oral argument here that the recent appearwas presented by the contestants in the ance before the circuit judge in response to cause, and the county court on that day made the application for injunction ought to have an order, in accordance with the prayer of been treated as an effort to secure from the the petition, directing a removal back to circuit judge an order suspending the orig Washington. The contestees then applied | inal judgment of the county court, and that to the circuit judge, in vacation, for an or- the petition now before us should be treated der restraining the county judge, and other officers, from removing their offices and the records thereof back to Washington, and that is the order of the circuit judge which it is sought in the present proceedings to control.

as an application for certiorari to review the action of the circuit judge in refusing to grant that relief. The first and the all-suffi cient answer at present is that there was no request made of the circuit judge to make an order of suspension, and we cannot, in this proceeding, treat that as having been done. The principle is too well settled for discussion that the action of a trial court, especially in a matter in which it is clothed with discretion, will not be reviewed unless the matter was brought to the attention of that court and it refused to act or to grant appro

The only ground alleged in the brief for requiring the circuit judge to make an order of removal back to Washington is that the necessary effect of the judgment of this court reversing the cause was to make such an order; but the further contention was made in the oral argument, as we understood it, that the county court had a continuing con-priate relief sought. trol over its own orders with respect to the It follows that the petition is without merremoval, and possessed the power, even it, and the same is dismissed, and the praywhen the cause was pending in the circuit er thereof is denied.

court, to direct the removal back to Wash

ington.

Assessor, et al. (No. 141.)

(Supreme Court of Arkansas. Feb. 5, 1917.) 1. TAXATION 49-"ACCORDING TO VALUE" -CONSTITUTION.

Const. art. 16, § 5, providing for taxation "according to value,' means on a valuation basis, and does not mean full valuation.

Cent. Dig. §§ 115-124.]
[Ed. Note. For other cases, see Taxation,

[1-4] We are of the opinion that each of the contentions of counsel are without foun- STATE ex rel. NELSON v. MEEK, County dation. The original judgment of the county court in favor of the contestees operated as a removal of the county seat, and, unless properly suspended by an order of the cir cuit court, it took effect at once. After the lapse of the term and an appeal taken to the circuit court, the county court had no further control over the matter, and could not therefore make any order with respect thereto. Patterson v. Temple, 27 Ark. 202. It was, however, within the power of the circuit court, or the circuit judge, in vacation, to make an order suspending the judgment of removal pending the trial of the case in the circuit court on appeal. Reese v. Can non, 73 Ark. 604, 84 S. W. 793. No such order has been made and the original judgment of the county court yet remains in full

2. TAXATION 49-CONSTITUTION-LEGISLATIVE INTENT.

uations shall be ascertained as the General AsConst. art. 16, § 5, providing that tax valsembly shall direct, shows intent to permit the Legislature to determine the basis of assessment, and how ascertained, except that it must be on a valuation basis, and equal and uniform throughout the state as therein provided.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 115–124.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

3. TAXATION

CORRECTING ASSESSMENTS-MANDAMUS-ASSESSMENT AT FULL

40(1)-CONSTITUTIONALITY-| 12. TAXATION 497

EQUALITY AND UNIFORMITY.

The action of taxation officers prescribed by statute must conform to constitutional commands of equality and uniformity.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 68, 71.]

4. TAXATION ~4461⁄2 — Tax COMMISSION FUNCTION OF.

The most important function of the state tax commission under Acts 1909, p. 764, is to preserve uniformity in assessments throughout the state, sitting annually for that purpose as the board of equalization.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 788.]

5. TAXATION 40(1) — EQUALIZATION-TAX COMMISSION.

VALUE.

Mandamus is the appropriate remedy to compel public officers to perform duties required by law, but cannot be used to compel an officer to make tax assessments which disturb the state equalization, as required by Constitution. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 911, 912.]

Appeal from Circuit Court, Johnson County; A. B. Priddy, Judge.

Petition by State of Arkansas, on the relation of J. L. Nelson, for mandamus to compel W. A. Meek, Assessor of Johnson County, and others to assess property for taxation at its true value. Writ dismissed, and relator appeals. Affirmed.

Warner & Warner, of Ft. Smith, for appel

Acts 1909, p. 764, providing for annual sitting of tax commission as board of equalization, recognizes the fact that valuations are merely relative, and uniformity only an approximation. [Ed. Note. For other cases, see Taxation, lant. Appellees pro se. Cent. Dig. §§ 68, 71.]

6. TAXATION 497-MANDAMUS TO CORRECT

ASSESSMENT-DEFENSE.

On mandamus to compel assessor to assess property at full value, as required by Kirby's Dig. $6974, answer that it was done at the state tax commission's order, to equalize taxes throughout state, as required by Const. art. 16, 5, was a valid defense.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 911, 912.] 7. TAXATION

McCULLOCH, C. J. This is an action instituted in the circuit court of Johnson county in the name of the state of Arkansas, on the relation of J. L. Nelson, against W. A. Meek, the assessor of Johnson county, and against the county judge and the persons constituting the board of equalization of said county, to compel the defendants, by manda

49-ASSESSMENT-CONSPIRA-mus, to assess the property of the county for

CY OF OFFICERS. Contention that officers might conspire to make minimum assessments to defeat creditors cannot be considered in determining whether the tax commission could order, for purpose of equalization, assessments at less than full value, as required by Kirby's Dig. § 6974.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 115-124.] 8. TAXATION

-PRESUMPTION.

319(2)—ASSESSING OFFICERS

taxation at its true money valuation. It is alleged in the petition that the relator is the holder of certain warrants of the county, duly issued in pursuance to judgments of the county court; that he has obtained judgment on said warrants in the circuit court of Johnson county, and the same has not been paid; that there is a large amount of floating scrip of Johnson county which is of depreciated market value by reason of the fact that the outstanding scrip largely exceeds the possible revenues of the county under the present system of taxation; that the 49-EQUALIZATION-RESULT-assessor and board of equalization have heretofore valued the property of the county for The fact that hardship may occasionally re-taxation at only 50 per cent. of its true valsult from tax commission's order to assess property at less than full value for equalization pur-uation in money, and propose to continue to poses is no objection, this being a necessary do so under future assessments, unless othevil for which the courts afford no remedy; the remedy being political or legislative.

There is no presumption that county assessing officers will knowingly violate their duties. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 105.]

9. TAXATION
ING HARDSHIP.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 115-124.]

10. COURTS 97(6)-FEDERAL DECISIONS AS CONTROLLING-STATE CONSTITUTION.

The state Supreme Court is the final arbiter fn construing state Constitution and laws, and is not influenced by decisions of federal courts. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 333.]

11. TAXATION

497-ASSESSMENT-AGREEMENT BETWEEN CREDITOR AND ASSESSOR. The fact that county officers contract with creditor to assess all property at full value, as required by Kirby's Dig. § 6974, can create no greater obligation than the law imposes and whether such contract exists or not, creditors cannot compel assessment of property which will disturb state equalization required by Consti

tution.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 911, 912.]

erwise directed. And it is further alleged that unless the assessing officers of the county be required to discharge their legal duty by assessing property at its true value in money there will be no means whereby the relator can secure payment of his said judgments against the county.

The defendants filed an answer admitting that the relator was the holder of the scrip as mentioned and described in the petition and had obtained judgment thereon, and also admitted that the assessments of valuation of property for taxation purposes had been on a basis of 50 per cent. of true valuation, and would remain the same in the future, but alleged that said assessments of valuation were in accordance with assessments of other property in the other counties of the state and under the express direction of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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