Choctaw & Memphis Railroad Co. v. Goset

• Decision Date: 10 May 1902
• Citation: 68 S.W. 879,70 Ark. 427
• Parties: CHOCTAW & MEMPHIS RAILROAD CO. v. GOSET
• Court: Arkansas Supreme Court

68 S.W. 879

70 Ark. 427

CHOCTAW & MEMPHIS RAILROAD CO. v. GOSET

Supreme Court of Arkansas

May 10, 1902

Appeal from Sebastian Circuit Court, STYLES T. ROWE, Judge.

Affirmed.

Judgment affirmed.

J. W McLoud and E. B. Peirce, for appellant.

A statement in writing by a constable as to how service was made is not competent. 60 S.W. 657. The right of way conveyance operated as an estoppel against appellee from claiming any right to compel appellant to construct stock guards. 47 Ark. 330; 35 Am. & Eng. R. Cas. 178; 100 Ind. 301. Railroads cannot be compelled to perform impossibilities. 58 Mich. 200. Railroads are excused from performing duties which endanger the lives of their servants or passengers, or interfere with the transaction of their business. 94 Ind. 45; Thornton, Railroad Fences and Crossings, § 94; 70 Ia 522; 13 Am. & Eng. R. Cas. 540; 58 Mich. 200.

Appellee pro se.

The affidavit of service was proof of same and competent. Sand. & H. Dig., §§ 5890, 2971; 51 Ark. 145. The question of service or proof of same cannot now be raised. 39 Ark 423; 23 Ark. 23; 33 Ark. 114. Service must be proved in some way. 3 Estes, Pl. & Forms, 234. Evidence not objected to on the trial cannot be objected to in this court. 63 Ark. 469; 9 Ark. 530; 3 Ark. 146; 10 Ark. 485; 38 Ark. 226; 39 Ark. 482. A deed conveys only what it purports to convey. Sand. & H. Dig., §§ 6238-39. If there is evidence to support the verdict, it will not be reversed here. 57 Ark. 577; 10 Ark. 138. Errors relied upon for reversals must be in the motion for a new trial. 39 Ark. 423; 38 Ark. 539; 60 Ark. 256. The instructions complained of were in appellant's favor, and it cannot complain. 26 Ark. 145. It is not error for an instruction to assume an undisputed fact. 51 Ark. 145. The first instruction was properly refused. 59 Ark. 323. Where testimony is different from the allegations, and is admitted without objection, it will be considered immaterial, or that the complaint was amended. 60 Ark. 614; 44 Ark. 486; 56 Ark. 602. The meaning of the word "damages" will be determined from the context and surrounding circumstances. 14 Ark. 329.

J. W. McLoud and E. B. Peirce, for appellant, in reply.

The errors complained of were properly pointed out, and exceptions saved. 65 Ark. 525; 68 Ark. 548; 13 Ia. 237.

OPINION

RIDDICK, J.

This is an appeal from a judgment of the circuit court of Sebastian county, rendered in favor of John Goset and against the Choctaw & Memphis Railroad Company, for the sum of $ 200 as a penalty for its failure to construct "suitable and safe stock guards" on either side of enclosed land owned by Goset and traversed by the railroad of defendant.

A statute of this state requires that where a railroad passes through enclosed land of another it shall be the duty of the company owning the road, upon receiving ten days' notice in writing from the owner of the land, to construct "suitable and safe stock guards" on either side of the enclosure where the railroad enters and to keep the same in good repair. For the failure to comply with this requirement of the law the statute imposes a penalty of not less than $ 25 nor more than $ 200, to be recovered in a civil action by the person aggrieved. Sand. & H. Dig., §§ 6238, 6239. It will be noticed that, in order to recover the penalty, the plaintiff must show a ten days' notice to the company and thereafter a failure on the part of the company to construct the stock guards required by the statute. On the trial in this case the plaintiff, Goset, undertook to show that he had given the notice in writing to the company as required, and for this purpose he offered in evidence a written notice to the company to which was attached an affidavit of R. Parks, stating that he had duly served the notice upon the company by leaving a copy of the notice with an agent of the company. The company objected to the introduction of this affidavit as proof of the service of the notice, on the ground that it was not competent evidence of the fact. But the court overruled the objection, and the defendant excepted. This court said in a recent case that the fact of service of the notice in a case of this kind must be proved like any other fact the proof of which is not provided for by statute. Kansas City, P. & G. Ry. Co. v. Lowther, 68 Ark. 238, 57 S.W. 518. As this was not, strictly speaking, a notice given in an action, it is at least doubtful whether there is any provision for the proof of the service thereof by an affidavit. See Sand. & H. Dig., § 2971. But, however that may be, the point is made by counsel for appellee in his brief in this court that the question is not properly before us for review, for the reason that the ruling of the court in admitting this affidavit as proof of the service of the notice was not set up as a ground for a new trial in the motion filed for that purpose in the circuit court. If this statement of the appellee is correct, the question as to the admissibility of this affidavit is not before us for review, for it is well settled that the rulings of the trial judge in admitting evidence cannot be reviewed here where the ruling is not made a ground for new trial. Graham v. Roark, 23 Ark. 19.

There are three grounds set up in the motion for new trial which appellant contends brings before us the ruling of the trial judge in admitting the affidavit referred to.

One of these grounds in the motion is "because of errors of law occurring at the trial and excepted to by the defendant." But this was too general. It pointed to no particular ruling of the court, and the court did not err in overruling it. Howcott v. Kilbourn, 44 Ark. 213; Edmonds v. State, 34 Ark. 720.

Another of these grounds assigned for new trial is that "the verdict of the jury was not sustained by the evidence." But the question raised by this assignment goes to the legal effect and weight of the evidence, and not to its competency. In passing on the question as to whether the circuit judge erred in overruling this ground of the motion, we must look to all the evidence before the jury, and, assuming it to be competent, we are then to say whether it is sufficient to support the verdict. The jury were bound to consider all the evidence before them, and, as this ground of the motion for new trial questions the correctness of their finding, the court in passing...