verses a mountainous country, and there were some heavy grades from Mena north. Before descending these grades it was necessary for the brakemen to go over the tops of the cars and turn up the retainer valves on from 75 to 80 per cent. of the loaded cars in order to assist the engineer downgrade, and after the descent was made it was then necessary for the brakemen to again go over the tops of the cars and turn the retainer valves down. It was upgrade from Mena to Rich Mountain; and from Rich Mountain to Page, where the injury occurred, it was downgrade. From Page two miles north it was upgrade and then north downgrade set in. The train arrived at Page at 8 o'clock at night and stop

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 and unusually, which jerking contributed to the injury of plaintiff's deceased as aforesaid." There were further allegations in the complaint to the effect that the defendant was negligent, in making up said train, "in carelessly and negligently placing the oil car or tank next to the box or refrigerator car, knowing the platform or walkway on the oil car was some six or seven feet lower than the top of the box or refrigerator car, without providing some means or appliances on both the refrigerator car and the oil car which would enable brakemen to get from one to the other without any unnecessary danger." There is an allegation to the effect that the acts of negligence complained of were un-ped there to get orders for future movements. known to plaintiff's deceased, and by reason of his inexperience as a brakeman he was unable to and did not appreciate the dangers arising from said acts of negligence. There was a further allegation to the effect that "by reason of the absence of such handholds or ladders on the end of said box car, or other proper appliances which would have enabled deceased to safely go from the top of said box car to said oil car, concurring with the unusual and violent jerking of the train as it passed out of Page, deceased was unable to get from the top of the box car to the oil car, and while in the effort to do so, and while in the exercise of due care himself, he was thrown between the ends of said cars, or fell between the ends of said cars," and received the injuries which were specifically described. The complaint concluded with a prayer for damages on account of pain and suffering in the sum of $10,000, and for loss of contributions in the sum of $15,000, and for a judgment in the total sum of $25,000.

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

rer.

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

Old and the head brakeman and the conductor all went in the station house at Page to secure their orders. They then left the station house to take up their duties on the train. The head brakeman came out first with orders for the engineer and proceeded to the front end of the train. Then the conductor came out and walked to the south end of the platform, about 80 feet from the station, and stopped. By this time the train had started slowly forward. Old passed the conductor, with his lantern, going south, and a very short time thereafter the conductor saw some man with a lantern climb up on the train about 80 feet south of him and from the point where he saw Old go. As the train moved slowly along a man with a lantern on top of the train, going north, passed the conductor. The car that the man was on was the second car in the rear of the tank car. As the train moved out, there was a violent and unusual jerking of the cars; two jerks being especially noticeable. Just 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 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

one car to the other, and that appellant was negligent in the manner of making up its train by placing the tank car next to a high car, and that appellant was negligent in that its engineer handled his engine in such manner as to cause the train to unnecessarily and violently lurch and jerk, and that the negligence in failing to provide necessary handholds, ladders, or other appliances to enable the brakemen to pass safely from one car to the other, concurring with the alleged negligence of the engineer, caused the injury to Old of which the appellee complained. These allegations were sufficient to state a cause of action against appellant. [3] The court did not err, therefore, in overruling appellant's motions to strike, and to make more definite and certain, and in overruling the demurrer. While some portions of the complaint were redundant and the pleader entered into unnecessary detail of description, the complaint for that reason was not defective, and there was no prejudicial error in refusing to strike out such unnecessary allegations.

in the nature of a flat car, and that part of the floor of this car between the tank and the outer edge was the only walkway or passageway over this tank car. The tank car had side rails on the outer edges of the side of the car which lacked 24 inches coming to the end of the frame of the car. The only appliances furnished the brakemen to pass from the top of the S. F. R. D. car to the tank car was a side ladder on the end thereof. One had to step from this side ladder onto the end of the tank car and grab to the end of the side rail on said car. From the side ladder to the nearest end of the side rail was about 5 feet. There was no end ladder on the S. F. R. D. car and no grabirons on the end of that car except down near the bottom of the car, which was used by the brakemen in coupling and uncoupling cars. There were no end ladders or grabirons on the tank car at all except on the sill below the floor. There was nothing on the end of the tank car for the brakemen to hold to while making the passage except the end of the side rail. It was necessary for brakemen, in passing from the sideladder on the S. F. R. D. car [4] It is not in best form to enter into to the tank car, while the train was in motion, to release his hold on the former before tion than is necessary to advise the defendmore specific detail in stating a cause of ache was able to secure a handhold on the rail-ant of the particular grounds upon which ing on the tank car.

tions.

seven.

The

It was shown that the train would have to go a quarter or a half mile after starting before it could get under good headway. The appellant excepted to the rulings of the court in admitting and excluding testimony. The appellant presented 97 prayers for instrucOf these the court refused all but The court granted ten prayers for instructions on behalf of appellee, and gave eight instructions of its own motion. appellant excepted to the rulings of the court in refusing its prayers for instructions, and also excepted to the rulings of the court in granting the prayers of appellee for instructions and to the giving of the instructions by the court of its own motion. The jury returned a verdict in favor of the appellee for $25,000. The court caused a remittitur to be entered in the sum of $7,000, and overruled appellant's motion for a new trial, and entered judgment in favor of the appellee for the sum of $18,000, from which this appeal has been duly prosecuted. Other facts stated in the opinion.

James B. McDonough, of Ft. Smith, for appellant. Sam E. Leslie and W. P. Feazel, both of Nashville, for appellee.

WOOD, J. (after stating the facts as above). [1] I. The court did not err in denying the petition for removal to the federal court. St. L. & S. F. Ry. Co. v. Conarty, 106 Ark. 421, 155 S. W. 93; K. C. Sou. Ry. Co. v. Cook, 100 Ark. 467, 140 S. W. 579.

[2] II. The complaint alleged that the appellant was negligent in not providing ladders and grabirons on the ends of the cars

These grounds should be stated with as much the complainant seeks to hold him liable. definiteness and certainty as possible, but more specific details are not required and are matters to be developed by the testimony. See Little Rock & Ft. S. Ry. Co. v. Smith, 66 Ark. 278, 50 S. W. 502.

[5, 6] III. The appellant contends that the amended complaint was filed within less than ten days before the beginning of the term of court, and that the amended complaint stated new causes of action, which entitled appellant to a continuance. The alleged new causes of action are: First, "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 brakemen in passing from the rear car to the oil or tank car to hold to and steady themselves while making said passage." Second, "that the engineer of said defendant was negligent on the occasion of plaintiff's injury in permitting his air to become out of order, or in carelessly manipulating his air in such manner that said train was caused to jerk violently and unusually, which jerking contributed to the injury of plaintiff's deceased, as aforesaid."

On account of the alleged new cause of action in regard to the tank car, the appellant set forth that: "It was impossible for the defendant to get a fair trial herein without having sufficient time to fully investigate the history especially of said tank car. * * It is absolutely necessary for a fair trial herein that defendant have time enough to get the complete history of each

meet the plaintiff's proof on the subject." the alleged jerking of the train at the time The appellant further set forth that "de- of the injury. fendant cannot safely go to trial without the full history of each refrigerator car in controversy, so as to enable the defendant to ascertain whether or not the cars were in service before July, 1911."

they were familiar with the method in which, them. The fact that the Interstate Comthe cars are equipped in order to enable them to perform their duties.

Appellant contends that, in the absence of a statute requiring railroads to place handholds or grabirons on the ends of their cars, there is no duty upon the railroad company as between it and its employés to place such handholds thereon, and therefore evidence showing that there were no such appliances does not tend to show negligence. It was the duty of appellant, regardless of any statute prescribing how freight trains should be equipped for the safety of employés, to exercise ordinary care to furnish such employés with a reasonably safe place in which, and with reasonably safe appliances with which, to work. See Railway Co. v. Holmes, 88 Ark. 181, 114 S. W. 221; Wilcox v. Hebert, 90 Ark. 145, 118 S. W. 402. The testimony was competent on the issue as to whether or not appellant was negligent.

In Oakleaf Mill Co. v. Littleton, 105 Ark. 392, 151 S. W. 262, we held that the test of a master's duty in furnishing appliances and a place to work is what a reasonably prudent person would have ordinarily done in such a situation, and proof of what was the custom of others under like conditions and circumstances is evidence, but not conclusive, of what a reasonably prudent person would ordinarily do.

merce Commission postponed the time for equipping the cars that were then in service did not relieve the appellant of the duty of exercising ordinary care to furnish its employés with safe appliances, and to provide them a safe place in which to do their work. The Interstate Commerce Commission was without power to exempt the carrier from liability caused by its negligence. [13] V. Witness Clayton testified that he was a locomotive engineer, with 17 years' experience. On his examination in chief he testified that he was the engineer in charge of the engine on the train at the time Old was injured. He testified that there was no lurching or jerking of the train; that the engine and the air were in good condition and were working all right. On crossexamination he was asked the following question: "Assuming that there was violent lurching and jerking of the train, what, in your opinion, could have caused it?" His answer was: "It could only have been caused by the engineer letting off too much steam." The appellant objected to the testimony, on the ground that it was incompetent and irrelevant. Appellant did not object on the ground that it was not responsive to the examination in chief. Testimony had been introduced tending to prove that after the train began moving out of Page there was a violent and unusual jerking. It had been shown, also, that the engine and the air were in good condition, and that the train had moved out upgrade more than 100 yards, tending to show that the slack had been taken out.

In the recent case of St. L., I. M. & S. R. Co. v. Hempfling, 156 S. W. 171, we held that the failure of the company to provide grabfrons or handholds necessary for the reasonable safety of brakemen in the performance of their duties in passing from one car to an- Appellee had the right to show, from the other was actionable negligence. It was opinion of an expert, assuming that the cirthe duty of appellant to exercise ordinary cumstances as detailed were true, that the care to equip its train with such appliances violent jerking of the train was caused by in the way of ladders, grabirons, and hand- the engine letting off too much steam. It was holds as would furnish its employés with a question for the jury, under the testimony, reasonably safe appliances to do their work, to determine whether or not there was a and, if appellant did not exercise such care jerking of the train, and, if so, what caused to equip its cars with such appliances as it. See Midland Valley Ry. Co. v. Lemoyne, were in common use by other railroads on 104 Ark. 327-341, 148 S. W. 654. similar cars similarly situated, evidence of [14] VI. Appellant next urges that the court this fact would be proper for the consider- erred in refusing to direct a verdict for the ation of the jury in determining whether defendant. This we consider the most diffior not appellant was negligent. See Dooner cult question in the case, and it has given v. Del., etc., Canal Co., 164 Pa. 17, 30 Atl. us the greatest concern; but we are of the 269. opinion that the case cannot be distinguished

[12] There was no error prejudicial to ap-in principle on the facts from the recent caspellant in refusing to permit it to show that under the rules of the Interstate Commerce Commission appellant was not required to put handholds on the ends of the cars complained of until July 1, 1916, unless the cars were shopped for general repairs. This ruling of the court was not prejudicial to appellant, because the effect of the testimony was only to show that in the opinion of the Inter state Commerce Commission it was necessary for cars like the one under consideration to be equipped with handholds or end ladders in order to insure as far as possible the

es of St. L., I. M. & S. Ry. Co. v. Owens, 103 Ark. 61, 145 S. W. 879, and St. L, I. M. & S. R. Co. v. Hempfling, supra. In the latter case, after reviewing the evidence and the authorities, we said: "The death of Hempfling was consistent only with the conclusion that he fell from the car by reason of the fact that he had no grabirons by which to hold as he was attempting to pass from the twelfth to the thirteenth car, as mentioned in the testimony. The jury were not invited to guess, without any proof, as to the probable cause of Hempfling's death. The law is well