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A. 48. In that case, McCulloch, Chatfield, | whatever price he saw fit, so long as he acted Allen, and others entered into a written con- in good faith. Here the contract provided tract for the purchase and sale of certain that the lands were to be disposed of under lands. Under the terms of the contract the the joint direction of all the parties to the title to the land to be purchased was placed contract. This gave Bonner something more in Chatfield, and he was to have the full and than a mere interest in the profits after the absolute control of the land and of the sale lands were sold. It gave him an interest in thereof, being only required to account for the lands themselves. Johnson held the lethe proceeds of sale. After the land was gal title, but he could not convey the lands sold and the expenses paid, the proceeds of without the consent of Bonner. In the case sale were to be divided between the respec- of Seymour v. Freer, 8 Wall. 202, 19 L. Ed. tive parties in proportion to the amounts 306, the court said: "A trust is where there they had paid in. The court held that the are rights, titles, and interests in property agreement contemplated that the trustee ap- distinct from the legal ownership. In such pointed in it should hold the title to such cases the legal title, in the eye of the law, land as might be acquired under the agree- carries with it to the holder absolute dominment, dispose of the same to the best advan-ion; but behind it lie beneficial rights and
interests in the same property belonging to another. These rights, to the extent to which they exist, are a charge upon the property, and constitute an equity which a court of equity will protect and enforce whenever its aid for that purpose is properly invoked. Interests in real estate, purely contingent, may be made the subject of contract and equitable cognizance, as between the proper parties."
tage possible, and convey the same when sold by his individual deed. The only limitation placed upon his powers was that he should not sell any of the land for less than $1 per acre without the consent of all parties in interest. Under these circumstances the court said that the trust created by the agreement plainly belonged to that class of trusts where the beneficiaries acquired no estate in lands held by the trustee until after they are sold, when their rights attach to the proceeds of We think the principles there announced sale; that under the terms of the agreement control the present case. The object of the the title to the land acquired was taken in trust here was the sale of the property, and the name of the trustee for the express pur- the parties to the agreement were to agree pose of enabling him to sell it without let or upon the manner of its disposition. This hindrance and to divide the proceeds among gave the parties to the agreement a joint inthose who might become interested in the terest in the property. Johnson held the le speculation. Therefore the court held that gal title, but the rights of Bonner are as val McCulloch was not entitled to a decree ad-id in equity as those of Johnson are at law. judging that he was the owner of an undi- Bonner, in his cross-complaint, alleges that vided interest in the property, as a decree of Johnson sold the property without his conthat nature would very likely interfere with sent at a price very much less than they had the dominion over the property which the been previously offered for the lands, and trustee was entitled to exercise so long as he for a less price than the lands were worth acted in good faith and was guilty of no when sold; that the plaintiff corporation dereliction of duty. It may be noted that was formed by persons for the express purthere was no allegation that the trustee had pose of buying the lands at the same price acted fraudulently in that case. It was not for which they were purchased under the even charged or proved that he had been ei- agreement under consideration; that Johnther negligent or inefficient in the discharge son, Rolfe, and the other incorporators had of his duties. full knowledge of his rights and interest in the lands; and that said lands were purchased by the corporation for the express purposeof defrauding him and of depriving him of his interest in the land. Under the allegations of his cross-complaint, the grantee took the title subject to the trust upon which Johnson held the property, and a court of equity will deal with it as if the title to the land still remained in Johnson.
Therefore we think the court erred in sustaining the demurer to the defendant's answer and cross-complaint, and for that error the decree will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
It is true in the case at bar the defendant, Bonner, did not expend any money in the purchase of the land, but only contributed his time, labor, skill, and judgment in the purchase thereof. Under the terms of the agreement, the titles were all to be taken in the name of Johnson, who advanced the money to pay for the land; but hereafter the facts in the case at bar are essentially different from those in the case of McCulloch v. Chatfield, supra. In that case the duties and responsibilities of McCulloch ended when the title was taken in the name of Chatfield, and Chatfield had the absolute power to dispose of the lands in any manner and for
RICHARDSON v. COHEN. (No. 304.) (Supreme Court of Arkansas. May 4, 1914.) APPEAL AND ERROR (§ 999*)—VERDICT-CON
So far as the weight of the evidence is concerned, the verdict of a jury is conclusive on appeal.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. § 999.*]
Appeal from Circuit Court, Cleburne County; Geo. W. Reed, Judge.
Action by Ed Cohen against F. C. Richardson. From a judgment for plaintiff, defendant appeals. Affirmed.
M. E. Vinson, of Heber Springs, for appellant. Mitchell & Thompson, of Heber Springs, and Gus Seawel, of Yellville, for appellee.
The case is not reported in the official reports of this court, but the opinion may be found in 150 S. W. 574.1 The judgment on the former appeal was reversed, because the instruction given by the court, submitting the case to the jury, did not fully state the appellant's contention; but that error was not repeated at the trial from which this appeal was prosecuted. It is now earnestly insisted that the court below should have directed a verdict in appellant's favor; but we think the evidence presented a question of fact which was properly submitted to the jury, and the verdict of the jury is conclusive on us, so far as the weight of the evidence is concerned.
The judgment will therefore be affirmed.
violently to lurch and jerk, and that the negligence in failing to provide handholds, ladders, or other appliances to enable the brakeman to pass safely from one car to another, concurring with the engineer's negligence, caused the injury from which the brakeman died, stated a cause of action.
KANSAS CITY SOUTHERN RY. CO. v. LESLIE. (No. 244.) (Supreme Court of Arkansas. April 6, 1914.) 1. REMOVAL OF CAUSES (§ 3*)-CAUSES REMOVABLE-ACTION UNDER EMPLOYERS' LIABILITY ACT.
In an action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), the court properly denied a petition for removal to the federal court.
[Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*] 2. MASTER AND SERVANT (§ 258*)-ACTIONS FOR INJURIES-COMPLAINT.
In an action for the death of a railway brakeman, a complaint alleging that defendant was negligent in not providing ladders and grabirons on the ends of the cars and in making up the train with a tank car next to a higher car, and in that its engineer handled the engine, so as to cause the train unnecessarily and
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*]
Reported in full in the Southwestern Reporter; reported as a memorandum decision without opin
ion in 105 Ark. 697.
3. APPEAL AND ERROR (§ 1042*)-PLEADING (8 22*)-COMPLAINT REDUNDANCY.
That portions of a complaint were redundant, and that it contained unnecessary details, did not render it defective, and there was no prejudicial error in refusing to strike out unnecessary allegations.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. 1042;* Pleading, Cent. Dig. § 45; Dec. Dig. 22.*]
SMITH, J. The facts in this case are stat-lar ed in the opinion delivered on the former appeal, and the evidence in the present record is substantially the same as it was there. In fact, some of the most important evidence was taken from the former record.
4. PLEADING (8 18*)-COMPLAINT-CERTAINTY AND DEFINITENESS.
grounds upon which plaintiff seeks to hold In alleging a cause of action, the particudefendant liable should be stated with as much definiteness and certainty as possible; but more specific details are not required and are matters to be developed by the testimony.
[Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 39, 64; Dec. Dig. § 18.*] 5. APPEAL AND ERROR (§ 1043*)-HARMLESS ERROR-DENYING CONTINUANCE.
In an action for the death of a railway brakeman, in which the amended complaint, term of court, alleged that there were no grabfiled within 10 days before the beginning of the irons or handholds on the end of a tank car immediately in front of a refrigerator car or any other appliances thereon to enable a brakeman in passing from one car to the other to hold thereto and steady himself, it was not prejudicial error to deny a continuance to enable defendant to investigate the history of the tank and refrigerator cars and ascertain whether they were in service before July, 1911, where it was shown at the trial that defendant had made investigation and was familiar with the history of the cars, and that they were in service prior to July 1911, and had not been sent to the shop for general repairs since that date, as defendant had the benefit of the testimony which by the continuance it desired to procure.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4115-4121; Dec. Dig. 8 1043.*]
6. CONTINUANCE (§ 14*)-GROUNDS-AMEND
MENT OF PLEADINGS.
Where, in an action for the death of a railway brakeman, the original complaint alleged that the air on the train failed to work properly, and the train could not therefore be handled or controlled properly, and that because of this defective condition the train began jerking and swaying violently, and so continued until plaintiff was injured, and the amended complaint, filed within 10 days before the beginning of the term of court, alleged that the enbecome out of order or in carelessly manipugineer was negligent in permitting his air to
lating it, so that the train was caused to jerk tributed to the injury, causing the death, a conviolently and unusually, which jerking continuance to enable defendant to look into the air on the various cars on the train was properly denied, as the amended complaint merely stated in the original complaint, and, moreover, stated in a different way the cause of action the allegations as to the specific causes of the violent and unusual jerking were surplusage, and allegations that the engineer was negli
gent in causing such jerking would give defend- | 12. APPEAL AND ERROR (§ 1056*)-HARMLESS ant sufficient notice to require it to make all ERROR-EXCLUSION OF EVIDENCE. investigation which it deemed necessary.
[Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 25, 99-112; Dec. Dig. § 14.*] 7. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.
In an action for the death of a railway brakeman alleged to have been due to the unusual jerking of the train, the admission of evidence relative to trouble with the air ap; pliances, if erroneous, where it was claimed that the evidence showed that the cars in which the defective condition existed were set out of the train before the injury, could not have been prejudicial, as, if the evidence did so show, the jury could not have concluded that the condition testified to had anything to do with the jerking of the train at the time of the injury. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]
In an action for the death of a railway brakeman claimed to have been due to the absence of handholds on the end, of a car, the exInterstate Commerce Commission, defendant clusion of evidence that, under the rules of the of cars, unless sent to the shop for general rewas not required to put handholds on the ends pairs, until July 1, 1916, was not prejudicial in the opinion of the commission it was neceserror, as the testimony would only show that ladders, and it could not by postponing the time sary for cars to be equipped with handholds or for so equipping them relieve defendant of its duty to exercise ordinary care to furnish its employés safe appliances and a safe place in
which to work.
8. APPEAL AND ERROR (§ 237*)-RESERVATION OF GROUNDS OF REVIEW-MOTIONS TO STRIKE.
In an action for the death of a railroad brakeman, where, after evidence was introduced relative to trouble with the air appliances of the train, it was shown that the cars in which the defective condition existed were set out of the train before the injury, defendant should have moved to strike the testimony as to the trouble with the air appliances, and could not rest on the objection made to the testimony when it was offered, especially where the court charged that plaintiff could not recover if the death occurred from any negligence other than that alleged, and the negligence was alleged to have occurred after such cars were claimed to have been set out.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1302; Dec. Dig. § 237.*1 9. MASTER AND SERVANT (§ 278*)—ACTIONSRELEVANCY-SIMILAR MATTERS.
In an action for the death of a railway brakeman claimed to have been due to the absence of ladders and handholds on the end of a box car, evidence as to the proportion of such cars in the country equipped with ladders and handholds on the end was properly admitted.
[Ed. Note.-For other cases, see Master and
Servant, Cent. Dig. §§ 954, 956-958, 960-969,
In an action for the death of a railway brakeman, witnesses engaged as brakemen or switchmen for 10 to 20 years and familiar with the method in which cars were equipped to enable them to perform their duties were properly permitted to testify that in their opinion it was much safer for brakemen to pass from the top of a high car to the platform of a low car if the high car was equipped with ladders and handholds on the end instead of on the side near the end.
[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2256-2266; Dec. Dig. § 483.*] 11. MASTER AND SERVANT (§ 111*)-LIABILITY FOR INJURIES-UNSAFE PLACE OR AP
It was the duty of a railroad company to exercise ordinary care to equip its cars with such ladders, grabirons, and handholds as would furnish its employés with a reasonably safe place in which and reasonably safe appliances with which to work, irrespective of statute.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. § 111.*]
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4187-4193, 4207; Dec. Dig. § 1056.*]
13. WITNESSES (§ 268*)-CROSS-EXAMINATION -SCOPE AND EXTENT.
In an action for the death of a railway brakeman claimed to have been due to a violent lurching and jerking of the train, plaintiff examination of the engineer in charge of the was properly permitted to show on the crosstrain, who testified that there was no lurching or jerking, that, if there was, it could only have been caused by the engineer letting off too much steam; the engineer having had 17 years' experience and no objection on the ground that the evidence was not responsive to the examination in chief having been made.
[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.*] 14. MASTER AND SERVANT (§ 286*)-ACTIONS FOR INJURIES-QUESTIONS FOR JURY.
In an action for the death of a railway brakeman claimed to have been thrown from a train while attempting to go from the top of a box car to the platform of a tank car, somewhat lower, due to the absence of handholds on the box car and a railing on the tank car and to the jerking of the train, evidence held to make questions for the jury as to the company's negligence, and its causal connection with the injury, though there were no eyewitnesses of the accident.
Act Cong. April 22, 1908, c. 149, § 1, 35 providing that every carrier by railroad enStat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), gaged in interstate commerce shall be liable for damages to any person suffering injury, while employed by it or in case of his death, to his or her personal representative for the benefit of the surviving widow and children for injury or death resulting from negligence, and section 9. as added by Act April 5, 1910, c. 143, § 2, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1325), providing that the right of action thereby given to a person suffering injury shall survive to his personal representative for the benefit of the surviving widow and children, but that in such case there shall be only one recovery for the same injury, create a right of action for the benefit of the widow and children wholly independent of the right of action given to the injured person for the pain and suffering endured prior to his death.
[Ed. Note. For other cases, see Death, Cent. Dig. §§ 10, 15; Dec. Dig. § 11.*]
16. EVIDENCE (§ 236*)-ACTIONS FOR DEATH -DECLARATIONS OF DECEASED.
In an action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), to recover the damages sustained by the widow and child of a deceased employé and to recover for his conscious pain and suffering, his statements as to the cause of the injury were not admissible upon the issue as to the right to recover the damages sustained by the widow and child, as there was no privity between him and them.
19. DEATH (§ 95*)-MEASURE OF DAMAGES.
The damages recoverable for the benefit of the widow and child under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), are a fair and just compensation for the pecuniary injuries resulting from the death, determined by taking into consideration deceased's age, health, habits, occupation, expectation of life, mental and physical capacity for and disposition to labor, the probable increase or diminution of that ability with the lapse of time, deceased's earning power, rate of wages, and the care and attention which one of his disposition and character may be expected to give his family, from which should be deducted deceased's personal expenses, and the balance re. duced to its personal value, is the measure of
[Ed. Note.-For other cases, see Death, Cent.
Dig. §§ 108, 109, 111-115, 120; Dec. Dig.
20. DEATH (§ 99*) -DAMAGES -EXCESSIVE
In an action for the damages sustained by the widow and child and to recover for the conscious pain and suffering of a railway brakeman who was thrown from a train, had both legs cut off, and was otherwise seriously injured, and died shortly afterwards, where it appeared that he was 25 years old, that he had an expectancy of 35 years, and that his net earnings were $720 a year, a verdict for $25,000, reduced by the trial court to $18,000, was not excessive.
[Ed. Note.-For other cases, see Death, Cent. Dig. 88 125-130; Dec. Dig. § 99.*]
This is a suit brought by the appellee as administrator of the estate of Leslie A. Old, deceased, for the benefit of the widow and her infant child, under the federal Employers' Liability Act and its amendment of April 5, 1910. The suit is brought for the loss of contributions to the widow and child by reason of the death of Old, and also for the conscious pain and suffering which Old endured before his death, which, under the act, survived to the administrator for the benefit of his widow and child.
The complaint, after alleging the incorporation of the appellant, and that it was engaged in interstate commerce, and after alleging that Leslie A. Old was in the employment of appellant as swing brakeman, actually engaged at the time of his injuries as such brakeman on a train that was being operated at the time in interstate commerce, alleged: "That his work required him to look after and pass over the tops of the cars composing the middle section of said train. That there were two box cars or refrigerator cars of equal height, and that immediately in front of these two cars was an oil tank car. That the floor of this car was seven or eight feet lower than the runway on top of the refrigerator car immediately in its rear. That there were no ladders or grabirons or handholds on the end of the box or refrigerator car to enable the brakemen to safely get from
the top of the box or refrigerator car onto
the platform or runway of the oil car immediately in front of it, except a ladder or grabiron down the side of the refrigerator some distance from the end thereof. That the absence of these grabirons or handholds or ladders down the end of the box or refrigerator car made it unnecessarily hazardous for the brakemen to pass from the top of the box or refrigerator car to the platform or walkway of the oil tank car immediately in front of it. That there were no grabirons or handholds on the end of the oil car or tank car immediately in front of the refrigerator car, or any other appliances thereon to enable a brakeman in passing from the rear car to the oil car to hold to and steady himself while making the passage."
The complaint further
21. APPEAL AND ERROR (§ 1070*)-HARMLESS
ERROR-FORM OF VERDICT.
In an action for the damages to the widow and child from the death of a railway brakeman and to recover for his conscious pain and suffering, where the verdict was not excessive, defendant was not prejudiced by the failure of alleged "that the jury to return separate amounts for the the engineer of said train was negligent, on
the occasion of deceased's injury, in permit- | freight train to Heavener, Okl. Old was callting his air to become out of order or in care-ed for service on the train about an hour be lessly manipulating his air in such manner fore it left De Queen. Appellant's road trathat said train was caused to jerk violently verses a mountainous country, and there were and unusually, which jerking contributed to some heavy grades from Mena north. Before the injury of plaintiff's deceased as afore- descending these grades it was necessary for said." There were further allegations in the the brakemen to go over the tops of the cars complaint to the effect that the defendant and turn up the retainer valves on from 75 was negligent, in making up said train, "in to 80 per cent. of the loaded cars in order to carelessly and negligently placing the oil car assist the engineer downgrade, and after the or tank next to the box or refrigerator car, descent was made it was then necessary for knowing the platform or walkway on the oil the brakemen to again go over the tops of the car was some six or seven feet lower than the cars and turn the retainer valves down. It top of the box or refrigerator car, without was upgrade from Mena to Rich Mountain; providing some means or appliances on both and from Rich Mountain to Page, where the the refrigerator car and the oil car which injury occurred, it was downgrade. From would enable brakemen to get from one to Page two miles north it was upgrade and the other without any unnecessary danger." then north downgrade set in. The train arThere is an allegation to the effect that the rived at Page at 8 o'clock at night and stopacts of negligence complained of were un-ped there to get orders for future movements. known to plaintiff's deceased, and by reason Old and the head brakeman and the conducof his inexperience as a brakeman he was tor all went in the station house at Page to unable to and did not appreciate the dangers secure their orders. They then left the staarising from said acts of negligence. There tion house to take up their duties on the was a further allegation to the effect that train. The head brakeman came out first "by reason of the absence of such handholds with orders for the engineer and proceeded or ladders on the end of said box car, or oth- to the front end of the train. Then the coner proper appliances which would have en- ductor came out and walked to the south end abled deceased to safely go from the top of of the platform, about 80 feet from the stasaid box car to said oil car, concurring with tion, and stopped. By this time the train the unusual and violent jerking of the train had started slowly forward. Old passed the as it passed out of Page, deceased was un- conductor, with his lantern, going south, and able to get from the top of the box car to a very short time thereafter the conductor the oil car, and while in the effort to do so, saw some man with a lantern climb up on and while in the exercise of due care him- the train about 80 feet south of him and self, he was thrown between the ends of said from-the point where he saw Old go. As the cars, or fell between the ends of said cars," train moved slowly along a man with a lanand received the injuries which were specifi- tern on top of the train, going north, passed cally described. The complaint concluded the conductor. The car that the man was with a prayer for damages on account of pain on was the second car in the rear of the and suffering in the sum of $10,000, and for tank car. As the train moved out, there was loss of contributions in the sum of $15,000, a violent and unusual jerking of the cars; and for a judgment in the total sum of $25,- two jerks being especially noticeable. Just 000. after the last heavy jerk, some one was heard to cry out, "Oh! Oh!" as if calling for help. After the train passed out, a witness whose attention was attracted by the unusual jerking of the train went out on the track to discover what was the cause of the jerking, and 95 yards north of the front door of the station he found Leslie Old lying on the track between the rails with both legs cut off between the knees and the feet, one shoulder crushed and mangled, part of the left hand crushed off, and skin knocked off his head. Some 15 or 18 feet south of where he lay his lantern was found lying on the track between the rails, with the broken globe lying around it. About 7 feet north of the lantern blood and small pieces of bone were found on the rail nearest the depot, and pieces of bone and blood were also found between this point and where the deceased lay. There were no signs of blood or bones anywhere else.
The appellant in due time and form filed a petition and bond for removal of the cause to the federal court, which was overruled. The appellant also moved to have the complaint made more definite and certain, which motion was overruled. Appellant then demurred, and its demurrer was overruled. Appellant then moved to strike out certain portions of the complaint, which motion was overruled. Appellant then answered, denying the allegations of the complaint and setting up the defense of contributory negligence. The appellant then filed a motion for a continuance, which was overruled. The appellant duly excepted to the rulings of the court on its motions and in overruling its demur
The cause was then sent to the jury, and the testimony developed the following facts, as stated by counsel for appellee, which we find to be substantially correct:
On the forenoon of March 24, 1913, Leslie A. Old was sent out from De Queen, Ark., as
The two cars immediately in the rear of the tank car complained of were S. F. R. D. cars, of the same type and height. The tank