2.

SAME OBJECTION IN GROSS TO INSTRUCTIONS REFUSED.-A general objection to several instructions refused will not be considered on appeal if any one of them is bad. (Page 160.)

Appeal from Cleburne Circuit Court; George W. Reed, Judge; affirmed.

STATEMENT BY THE COURT.

Appellee brought suit against appellant for treble damages for the unlawful cutting and removing of certain timber from his lands. It was alleged that it unlawfully and wilfully entered upon his lands in June, 1911, and cut and removed 28,456 feet of white oak timber therefrom, of the value of $300, and damaged and caused a waste of other timber, growing thereon, of the value of $200, and prayed judgment for treble damages.

The appellant admitted appellee's ownership of the lands, and that its employees entered thereon and cut and removed 19,773 feet of timber; denied that it cut the amount claimed by appellee, and that it was of the value as alleged by him, and that it caused any damage or waste to the other timber standing thereon. It denied that it unlawfully and wilfully entered upon the lands and cut and removed the timber therefrom, and alleged that it was done by its employees without its knowledge and consent, and that only 19,773 feet of timber was taken.

The testimony tends to show that appellant's employees cut fifty-eight oak trees, on the lands of appellee, which stood along a road, and were within about half a mile of the switch on the Missouri & North Arkansas Railroad, in easy hauling distance thereof; that the trees would run from fifteen to thirty inches in diameter, and were long-bodied, and that some of them were more than thirty inches.

Appellee and two others testified that they scaled the timber, and it amounted to 28,456 feet. He stated that the fair market value of it was $235. It was also testified that the trees could be cut into logs for $1.00 per thousand, hauled to the railroad for $2.00; and when delivered there were worth from $24 to $36 per thousand feet. There was also testimony to the effect that timber not taken was damaged to the extent of $75. One witness testified that he saw Clarence Jones, the foreman of appellant company, in charge of the gang when they were cutting the timber, and told him it was on the Clark

land, and he said it didn't make any difference. There was other testimony tending to show that the timber was cut by mistake, and that as soon as Sam Giddon, another employee of the company, was notified he immediately stopped the cutting of the timber.

The testimony, on appellant's part, tended to show that only 19,773 feet of timber was taken from the lands, and that $3 per thousand feet was a good price for the standing timber.

No survey of appellant's lands adjoining the lands of appellee, from which the timber was cut, was made prior to the cutting of his timber.

The court gave three instructions, "to the giving of which the defendant objected and excepted, and had its exceptions noted of record." It refused the three asked by defendant. The jury assessed the damages at $775.00, and from the judgment thereon this appeal is prosecuted.

J. H. Harrod and A. Y. Barr, for appellant.

S. W. Woods, for appellee; E. G. Mitchell, of counsel.

1. The court did not err in giving instruction No. 2. But its correctness is not properly before this court for consideration, since it was not objected to when given, and the question of its correctness could not be raised for the first time in the motion for new trial. 73 Ark. 259. A general objection to two or more instructions given is bad, and will not be considered on appeal if any of them are good. 32 Ark. 223; 59 Ark. 312; Id. 370.

2. A general exception to the court's refusal to give several instructions asked will not be considered on appeal if any of them are bad, or properly refused. 75 Ark. 181.

KIRBY, J., (after stating the facts). Appellant contends that the verdict is excessive, and that the court erred in giving instruction No. 2 over its objection and in refusing to give the three instructions requested by it.

Said instruction numbered 2 relates to the statute requiring persons desiroous of cutting and removing timber from any land in the State for the purpose of making staves or to be sawed into lumber, when the boundaries of the land are not already ascertained and known, to have such lands surveyed and the metes and bounds marked and plainly established before cutting the timber therefrom.

The court's action in giving this instruction can not be reviewed here, because of the general objection made to all three of the instructions given, as follows:

"To the giving of which the defendant objected and excepted and had its exceptions noted of record."

This objection was general and embraced all the instructions in gross, and such objections are not considered here if any of the instructions are good. Wells v. Parker, 76 Ark. 42; Young v. Stevenson, 73 Ark. 480; Dowell v. Schisler, 76 Ark. 482.

Appellant's exceptions to the refusal to give its three requested instructions were likewise in gross. "To the court's refusal to give the three above instructions the defendant at the time objected and saved its exceptions, which were noted of record," and it is equally true that a general exception to the refusal to give several instructions requested collectively will not be considered on appeal, if any of such instructions are bad. Young v. Stevenson, supra.

Two of the requested instructions were covered by one already given by the court, and it is doubtful whether the other was a correct statement of the law.

It was not claimed that the lands of the cooperage company adjoining those of the appellee, from which the timber was cut, had been surveyed and the boundaries ascertained and known, nor did appellant attempt to show that its employees engaged in cutting the timber were acquainted with the boundaries of its lands, further than to say they had a plat of the lands in their possession. A plat of land does not necessarily designate the boundaries thereof on the ground plainly and clearly where it could not be easily mistaken, and there was some testimony from which it could be inferred that the foreman of the employees engaged in cutting the timber knew where the boundary line of Clark's land was before the timber was cut.

The questions whether appellant had reasonable cause to believe and did believe at the time the trespass was comImitted that the timber belonged to it, as well as the value thereof, were fairly submitted to the jury and upon conflicting testimony they found in appellee's favor. The testimony is sufficient to sustain the verdict, if it was the intention

of the jury to allow treble damages, which the law warranted under the circumstances. Doniphan Lbr. Co. v. Case, 87 Ark. 169; Newhouse Mill & Lbr. Co. v. Avery, 101 Ark. 34.

Finding no prejudicial error in the record, the judgment is affirmed.

DENTON v. MAMMOTH SPRING ELECTRIC LIGHT & POWER

1.

2.

COMPANY.

Opinion delivered October 21, 1912.

MASTER AND SERVANT-INJURY TO SERVANT-PRESUMPTION.-Where a servant is injured while employed in his master's service, the fact of the accident carries with it no presumption of negligence on the master's part. (Page 165.)

SAME MASTER'S NEGLIGENCE SUFFICIENCY OF EVIDENCE.-A servant injured in the master's service can not recover for the master's negligence where under the evidence it is a matter of conjecture whether the injury was due to the master's negligence or to some other cause. (Page 166.)

Appeal from Fulton Circuit Court; John W. Meeks, Judge; affirmed.

STATEMENT BY THE COURT.

This is an action by appellant against appellee to recover damages for personal injuries received by him in the course of his employment. The material facts are as follows:

Appellee is a corporation engaged in erecting, maintaining and operating an electric power plant in the town of Mammoth Spring, Fulton County, Arkansas, and in September, 1910, appellant was in its employ assisting in the work of repairing its lines. Appellant had had some experience in repairing telephone and telegraph lines before he went to work for appellee. On the 12th day of July, 1910, appellant commenced to work for appellee, and his work until the latter part of August consisted in digging holes, setting poles and stringing wire on them. He was then put to work helping to repair appellee's lines in the town of Mammoth Spring, and had been at work with live wires or wires carrying very heavy charges of electricity for about two days when he was injured. On the day appellant was injured, he and De Holt, another servant of appellee, started to climb a pole which had live

wires on it. The foreman of appellee called Holt back, saying there was not room on the pole for both of them to be safe. Then appellant started up, and the foreman told him to get on the inside of the pole, and then he could clear the wires as he went up, and he turned on the pole and went up on the inside. The pole was double-armed; the wires from the power house were on the first arms, and the wires going up in town were on the second arms. Attached to the post was a guywire, which was not insulated, and which did not have a circuit breaker in it. The guy wire was fastened around the pole about four inches below the lower cross arm, and extended from there downwards to a guy stub and from there into the ground. Two of the wires were carrying a very heavy voltage, and these were called the primary wires; the other wires were carrying electricity, and were called the secondary wires, and were not nearly so heavily charged as the primary wires. If a person should come in contact with one of the live wires on his arm and another portion of his body should be in contact with one of the secondary wires, while he would not get the full primary voltage, he would get about one-half or a little over one-half of it. It would burn him, and would kill him if he should stay there long enough. The evidence also shows that if a person should come in contact with one of the live wires and the guy wire that would make a circuit. It would have injured or killed him according to the length of time the contact continued.

The appellant testified: "I had helped put the guy wire on the pole the day before, and appreciated the danger of working among live wires, but did not know the danger of coming in contact with a live wire and the guy wire at the same time. The foreman did not explain this danger to me when I started up the pole. He did tell me that the wires were hot; by which I understood that some of the wires were live wires. I climbed up the pole, as directed by the foreman, and had worked for about thirty minutes when I was injured. It was a very hot day, and I was wet with perspiration at the time I was hurt. My work consisted in helping to tighten the wires. I had on climbers, and was standing on the second arm. My head was above the wires, and my feet were on a level with the lower wires. I was sitting straddle of this arm.