penalty prescribed by Kirby's Dig. § 7946, for | liable for a previous refusal, then your verrefusing to send the message. dict should be for plaintiff. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 79-81; Dec. Dig. § 78.*] 4. APPEAL AND ERROR (§ 1068*)-HARMLESS ERROR-INSTRUCTIONS. In an action against a telegraph company for refusal of agent to transmit message to his superior officer complaining of his conduct, where plaintiff and his witnesses testified that the agent refused to send it, and thereafter asked plaintiff to give him that "damned telegram," and that plaintiff did not let him have it, fearing he would destroy it, and the agent testified that he asked for it that he might send it, as the verdict showed that the jury believed the statements of plaintiff and his witnesses which conflicted with that of the agent, any error in the instructions given and refused relating to the subsequent offer of the agent to transmit the message were so immaterial as not to require reversal of the judgment for plaintiff. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*] Appeal from Circuit Court, Jefferson County; Antonio B. Grace, Judge. Action by Maral Franklin against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed. Defendant requested the following instruc tion: dence that the defendant's agent, at the time (4) Although you may believe from the evithe message proven in this case was tendered or delivered for transmission, refused to receive and transmit the same, but that within a reasonable time thereafter said agent notified the plaintiff to deliver him the message, which he desired to send, in order that the same might be transmitted, but plaintiff, upon such a demand, refused to deliver said telegram to defendant's agent to be transmitted, then plaintiff is not entitled to recover the penalty sued for in this case, and your verdict should be for the defendant. This action was brought to recover the penalty provided by section 7946 of Kirby's Digest for the willful refusal of a telegraph company to send a message, the message tendered for transmission by the appellee being as follows: "C. M. Andrews, McGehee, Ark. Please advise why you cannot get a civil answer out of your agent here. If you ask him anything he has to curse you out. "[Signed] Maral Franklin." It appears from the evidence that the appellee was the postmaster at Tamo, and became involved in a dispute with the railroad and telegraph agent at that station relative to whose duty it was to move the mail sacks into the depot when thrown on the platform from the trains after night. The postmaster had written to the superintendent of the mail service, and had been informed that when the train was two hours or more late to leave the mail to the care of the station agent. The postmaster, on the 19th, went to see the depot agent, Causey, and asked why he had not taken care of the mail thrown from the train the night before, which was five hours late. He said: If you find from the evidence that the message was offered and refused, as set out in instruction numbered 4, and that a short time afterward defendant's agent went to plaintiff and demanded or requested plaintiff to give him the message, but did not state or explain to plaintiff that it was his purpose to send it, as previously requested, then it is a question of fact for you to determine from all the evidence what the purpose of the agent was in making such demand or request, and whether or not the circumstances were such that plaintiff understood therefrom that it was the desire of the agent to get the message for the purpose of transmitting it. If you find that the agent did, in fact, intend to send the message and wanted it for that purpose, and that he so informed the plaintiff, or that all the circumstances were such as that plaintiff should have understood, and did, in fact, understand, therefrom that the agent wanted the message for the purpose of sending it to the person addressed, then it was the duty of plaintiff to give it to him for that purpose, and if he refused to do so then the defendant is not liable herein, and your verdict should be for the defendant. But, if you find that at the time of making such subsequent demand defendant's agent did not inform plaintiff of his willingness and intention to send the message, and that Several witnesses testified to the transacthe circumstances were such that plaintiff tion about as related by the appellant. The did not understand that such was the agent's agent himself said that when the appellee purpose and intention at that time, then handed him the message he really did not such subsequent demand for the message, know he wanted to send such a message as without explanation, would not relieve the that, didn't think, he did, and told him that defendant from any liability previously in- he would not send it. He denied having curred, and if you find that the company was used the oaths about the appellee and the For other cases see sama topic and section NUMBER in Dea Dig. & Am. Dig. Key-No. Series & Rep'r Indexes "I asked him why the mail was left out, and he said, 'By God, it is not my business to take superintendent for that, and that I had already care of it,' and told him it was him and the reported it, and he said, 'God damn you and the superintendent too; I don't care anything about either of you.' Then I asked him for a telegram blank, and told him I was going to report him to the superintendent, and I wrote the telegram and handed it to him with a $5 bill, and he said it was a damned lie, and he would not send it.' He did not refuse the telegram because he did not have the change. He handed me the message and the $5 back, and said he would not send it. About 30 minutes afterwards he came out and said, 'You give me that damned telegram.' I thought he wanted to tear it up, and would not let him have it. He did not say anything about wanting to send it, and made me believe he wanted to tear it up." GENCE INJURIES TO PASSENGERS. superintendent. Also said that he did not | 2. NEGLIGENCE (§ 97*)-COMPARATIVE NEGLIsay that the message written was a damned iie, and that he later went out and asked for the message that he might send it, and the appellee declined to give it to him. The jury returned a verdict against the telegraph company for the penalty, from which it appealed. George H. Fearons, of Dallas, Tex., Bridges & Wooldridge, of Pine Bluff, and Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant. Earl S. Wood, of Pine Bluff, for appellee. KIRBY, J. (after stating the facts as above). [1-3] It is contended for reversal that the telegram was not a proper message to transmit, and that the company had a right to refuse to send it. The law allows a telegraph company to refuse to send a message that is obscene, slanderous, blasphemous, profane, indecent, or the like, but this message was not of that character, and was entitled to be transmitted. Even if the purpose of the sender was to report the conduct of the agent to his superior, it did not affect his right to recover the penalty prescribed by the statute for the willful refusal to send the telegram. West. Union Tel. Co. v. Lillard, 86 Ark. 211, 110 S. W. 1035, 17 L. R. A. (N. S.) 836; Railway Co.,v. Smith, 60 Ark. 221, 29 S. W. 752; Railway Co. v. Trimble, 54 Ark. 354, 15 S. W. 899. [4] Neither do we find it necessary to decide whether or not instruction numbered 5 was a correct declaration of the law, or whether the one on that subject requested by appellant should have been given. Under the circumstances of this case the difference between the two instructions was not material, and could not have influenced the jury in reaching its verdict. They evidently believed the statement of appellee and his witnesses about the transaction, which was so radically different from the version given by the agent that the instruction given by the court could not have been prejudicial if it was incorrect. The issues in the case were fairly presented by the instructions declaring the law, and we find no prejudicial error in the record. The judgment is affirmed. Where plaintiff was injured by falling over an obstruction on a carrier's depot platform, an instruction that, if she failed to exercise ordinary care which may have contributed remotely to her injury, yet if defendant's employés were negligent which constituted the immediate cause of the injury, and by prudence the employé might have prevented the injury, defendant was liable was erroneous, since, if plaintiff's own negligence contributed in any way to her injury, she could not recover. [Ed. Note.-For other cases; see Negligence, Cent. Dig. §§ 93, 162; Dec. Dig. § 97.*] Appeal from Circuit Court, Phillips County; J. M. Jackson, Judge. Action by Lucinda Musgrove against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. This is an action for damages for personal injury alleged to have been received on account of the negligence of the railroad company in allowing an obstruction to remain upon its platform at the passenger's destina tion, over which she fell and was injured. road from Marvell to Postelle, Ark., and, after She became a passenger on appellant's railalighting from the train at the station of her fell over a box lying upon it, from which an destination, started across the platform and iron shaft protruded a couple of feet. There were two boxes containing gin saws lying upon the platform, and from the ends of the boxes, about 18 inches from the floor, an iron shaft protruded. There were about six feet of clear space on the platform between the railroad track and the boxes. Appellee testified that after she was helped off the train she only took one step to go between the porter and the boxes"and there was a piece of cast iron sticking out of the end of the box. I did not see the obstacle until it was too late to stop. I was going too fast and I just pitched over. When I Those boxes were lying right there in the way, got off the train, my son was waiting for me. and I was afraid to stand there until the train passed. I don't know whether I was watching the train, but I was past the box and pitched right over it, head foremost." Her son testified: * "I was at the station to meet Mother: had gone out of the waiting room and was standing out there when she was getting down off the steps of the car. I started toward her, and there were a couple of gin saw boxes lying cater-cornered from the depot to the railroad, and she started around the obstruction, and there was a shaft sticking out that came very close to the track, and she tumbled over that of the depot to the railroad. The gin saws were shaft. It was just 16 feet from the corner five feet, and this two-foot shaft besides that sticking out. There couldn't have been much space between them on the platform because it was only 16 feet and those two gin saws were 14. My mother probably made one step, or maybe the second step, when she fell over this two-foot shaft." Other witnesses testified that there was a clear space of 5 to 7 feet between the boxes of machinery and the train. The station *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes agent stated that she had made about 15 remotely to her injury, yet if defendant's employés, or any one of them, were guilty of any plaintiff's injury, and with the exercise of negligence which was the immediate cause of prudence by said employé, or any one of them, said injury might have been prevented, the defendant is liable in this cause, and you will find for the plaintiff. The jury returned a verdict against the railroad company, and, from the judgment thereon, it appealed. E. B. Kinsworthy and T. D. Crawiord, both of Little Rock, and P. R. Andrews, of Helena, for appellant. W. C. Trotter, of Helena, for appellee. (1) The jury are instructed that, under the law, railroad companies owe a high duty to persons traveling upon their trains, and are bound to keep in safe condition all portions of their station grounds reasonably near to their depot, where their passengers taking passage or debarking from their cars would naturally and ordinarily be liable to go, and especially by those routes and methods that they have by their own custom and practice established. KIRBY, J. (after stating the facts as Therefore, if the jury believe from the evidence above). [1] Instructions numbered 1, 2, and 5 in this case that the defendant, through its are erroneous and were prejudicial. Each and employés, was negligent in the matter of plac-all of them exact a higher degree of care of ing or leaving obstructions upon its station grounds reasonably near to its depot at Postelle, the railroad company in protecting passenArk., and further believe from the evidence that gers upon their platforms than the law rethe plaintiff, while exercising due care, fell over quires. A railroad company is not an insursaid obstruction after debarking from defendant's passenger car and while trying to make er of persons rightfully upon its platforms, her way to defendant's depot over the route and is only bound to the exercise of ordinary that defendant had established by custom and care in keeping its platforms in safe condipractice, and was injured by said fall, then you tion for passengers and others rightfully uswill find for plaintiff in such sum as you believe to be a just compensation for the injury re- ing them. Railway v. Robinson, 96 Ark. 32, ceived, unless you further find that the plaintiff 130 S. W. 536; Railway v. Purifoy, 99 Ark. was guilty of contributory negligence. (2) If the jury believe from the evidence that 369, 138 S. W. 631; Railway v. Grider, 161 the plaintiff purchased a ticket or paid her fare S. W. 1032; Railway v. Woods, 96 Ark. 315, over the defendant's road from Marvell to Pos- 131 S. W. 869, 33 L. R. A. (N. S.) 85; Railway telle, Ark., then it was a contract between de- v. Watson, 102 Ark. 503, 144 S. W. 922. . fendant and plaintiff for the safe carriage from Marvell to their depot at Postelle, and under said contract it was defendant's duty, upon the arrival of its train at Postelle, to furnish plaintiff with a safe, easy, and convenient passway to travel from its train to its depot building; and, if it did not furnish said safe, easy, and convenient passway to the plaintiff from its train to its depot building, then it was negligence upon the part of the defendant; and if the jury find that, by reason of said negligence, the plaintiff, using due care, was injured, as alleged in her complaint, you will find for the plaintiff in such sum as you believe from the evidence will fully compensate her for her injury, unless you find plaintiff was guilty of contributory negligence. (5) The jury are instructed that common carriers of passengers are required to exercise the strictest care consistent with the reasonable performance of the contract of transportation; and, while they are not bound to insure the absolute safety of their passengers, they are required to make use of such safeguards for the protection of their passengers as science and art have devised, and as experience has proved to be efficacious in accomplishing or securing their safety. It is not sufficient that they exercise slight, common, or even great care, for they will have discharged their duty toward them when they have employed all the means reasonably within their power to prevent their injury. To render them liable for an injury to a passenger while under their charge, it is not necessary that they be guilty of gross or great negligence; it is enough if the injury was caused solely by any negligence on their part, however slight, if, by the exercise of the strictest care and precaution reasonably within their power, the injury would not have been sustained. ** * In Railway v. Woods, supra, the court said: "The exercise of ordinary care is the measure of the duty of a public carrier to protect passengers while at stations. *The higher degree of care is exacted only during the time in which the passenger has given himself wholly in charge of the carrier, while on the train or getting on or off, for then only is the passenger subject to the peculiar hazards of that mode of travel against which the carrier must exercise the highest degree of skill and care.' In Railway v. Watson, supra, the court said: "This duty not only requires the railroad company, as a carrier of passengers, to exercise ordinary care to see that the station platform itself is in safe condition and free from any defect from which a consequent injury might be reasonably expected to result, but also to keep such station platform free from obstructions and dangerous instrumentalities, especially at the time when passengers are expected to go to and from its cars." [2] Instruction numbered 10 is also erroneous, seeming to apply to the doctrine of comparative negligence rather than a correct statement of the law relative to contributory negligence. The injured person cannot recover, if his own negligence has in any way contributed to his injury, even though there has been negligence on the part of the carrier that would otherwise make it responsible for the injury. 6 Cyc. 635; Railway v. Norton, 24 Pa. 469, 64 Am. Dec. 672; Heil v. Glanding, 42 Pa. 493, 82 Am. Dec. 537; Rail (10) The jury are further instructed that, al-way v. Grider, 161 S. W. 1032. though plaintiff may have failed to exercise We have not examined all the instructions ordinary care and prudence while traveling from defendant's passenger car to its depot building with the view to ascertaining their correctat Postelle, Ark., which may have contributed ness, but find from the errors committed, as pointed out in giving the instructions herein passed upon, that the judgment must be reversed, and the case remanded for a new trial. (Supreme Court of Arkansas. July 6, 1914.) 1. MORTGAGES (§ 32*)-ABSOLUTE DEED OR MORTGAGE-EVIDENCE. Certain land having been conveyed to defendant, he executed a bond for title to complainant, taking complainant's notes for the price, and, these not having been paid at maturity, the bond was canceled, and complainant voluntarily became defendant's tenant for the years 1910, 1911, and 1912, executing notes for the rent. Held, that the surrender of the bond for title constituted a rescission of complainant's contract to purchase and a termination of all his interest in the land, and hence he could not maintain a suit to have the deed to defendant declared a mortgage on the theory that it was intended to secure repayment to defendant of money advanced to purchase the land for complainant. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. § 32.*] 2. FRAUDS, STATUTE OF (§ 56*)-INTEREST IN LAND-CONTRACT TO CONVEY. Where, after the release of a bond for title, the vendor agreed to renew the bond by parol, such agreement was within the statute of frauds (Kirby's Dig. § 3664), as a contract to convey an interest in land, and unenforceable. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 83-89, 136-138; Dec. Dig. § 56.*] Appeal from Cleburne Chancery Court; George T. Humphries, Chancellor. the court ascertain the amount due from plaintiff and declare the same a lien upon the land. Appellant King denied that Crone purchased the land from Hammock and borrowed the money from him with which to pay for it, and that the deed executed by Hammock to him was intended as a security for money advanced to plaintiff. Alleged the sale of the eastern portion of the land to plaintiff and execution of bond for title therefor, and the sale of the western portion to Arthur Harkey and execution to him of a bond therefor, and alleged that on January 2, 1908, he executed a bond for title to plaintiff for the entire tract of land, agreeing therein to convey it upon the payment by him of $1,200, of which $250 was due in November, 1908, and $950 on January 1, 1909, for which notes were executed by the plaintiff; that the notes were never paid, and thereafter the trade was canceled, and he surrendered the purchasemoney notes to the plaintiff, and who surrendered the bond for title and turned over the possession of the land to him; that the plaintiff then rented the lands and gave his note in payment of the rent therefor, until 1912, when he rented the lands to one Boyd, with the knowledge of plaintiff and without any objection on his part. We do not deem it necessary to go into the contention about whether this was a sale to Crone with the purchase money borrowed from King and the deed made from Hammock to him as security therefor, since both parties agree that the entire tract of land was sold by King to appellee Crone on January 2, 1908, and the bond for title executed to convey same upon the payment of the purap-chase-money notes. When these notes for the purchase money became due, the appellee did not pay them and surrendered the bond for title to the appellant upon the delivery to him of the purchase-money notes. These facts are undisputed. Suit by J. M. Crone against J. M. King. Decree for complainant, and defendant peals. Reversed and remanded, with instructions to dismiss. Appellant testified: That Crone was unable to pay the purchase-money notes, and proposed to surrender the bond for title for them and cancel the trade. That he agreed to this, and that it was done. That he thereafter rented the lands to Crone for the years 1910, 1911, and 1912 for $200 a year, and the notes taken each year therefor recited that it was for rent of the lands. That he rented the lands to Boyd in 1913 with Crone's knowledge and without any objection from him. J. M. Crone brought this suit to have a deed from Hammock to King declared a mortgage, alleging that he had purchased the land, 138 acres, from Hammock and borrowed money from King with which to pay for it; that Hammock executed the deed to King, which was intended only to secure the repayment of the money to him; and that on the same day King executed to plaintiff a bond for title for the east portion of the land containing 70 acres, and also executed to one Arthur Harkey a bond for title for the west portion, containing 68 acres, and took their notes for the payment. One tract of this land was transferred to three different peo- Edward testified: That he heard a converple, but afterwards deeded again to King, sation between the parties, in which Crone on January 2, 1908, who sold it to appellee told King it appeared he could never get in Crone, giving him bond for title for the en- any better shape, and that, if it suited him, tire tract to which he agreed to execute a he would rather surrender his bond for title deed upon the payment of $950 on January to the place and take his notes back. That 1, 1909, the interest at 10 per cent. It was King replied he preferred to have the money, alleged that the deed from Hammock to King but would do this, and turned over the notes was intended as a mortgage to secure the to Crone, who gave him the bond for title. payment of the money advanced, and the That Crone then said he would be glad to prayer was that it be so declared, and that rent the place for a year, and King told him For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes he might have it. Heard Crone say he would | peared. to have been made during the past Crone stated: That he gave the notes, $950 due January 1, 1909, and $250 due November 1, 1908, for the purchase money, and took the bond for the conveyance upon the payment of the last note. That on January 1st, thereafter, the bond for title was extended 12 months. He did not claim to have paid anything whatever on the $950 note, nor all the $250. note, which recited that it was given for rent, and Crone only claimed that $50 of it was for purchase money. He said: "I made a trade with Mr. King and gave him my note for $950 as purchase money of the land, and a rent note for $250. Fifty dollars of this money was a part of the $1,000 of purchase money, and $200 of that was rent or interest for the year 1908; and he gave me a bond to convey the title upon the payment of the note due January 1, 1909." Crone admitted that he surrendered the bond for title upon the delivery to him of the $950 purchase-money note, and that King also surrendered to him at the same time his note for $200, which had been given for the rent of 1911. He claims that, after he surrendered the bond for title, he went to get a new bond, and King told him that his word was as good as his bond. That was about two weeks after the surrender of the bond when he went to King for a renewal of it. He paid the taxes on the land until it was rented to Boyd. Boyd, to whom the land was rented for 1913, testified that he had a conversation with Crone in which he asked if he had rented the land from King, and he told him he had, and understood from him that King owned the land. This conversation occurred after he moved on the place. Crone said he was indebted to King, and told him to come up the following Saturday and bring the two rent notes and he would pay them. Said the notes were for rent of the place. Said he paid some of them, but had not paid ei ther of them in full. One was for 1911 and one for 1912. That Crone knew when he went on the land and raised no objection nor said anything about his having any claim thereto. Was present when King showed the rent notes which he held to the plaintiff, who said they were all right. When he took possession of the lands, the fences had fallen down, and the place was going to waste. King stated that Crone paid the taxes, but that he had either loaned him the money with which to pay them or allowed him credit therefor. The court found that Crone had purchased the lands from Hammock and borrowed the money from King with which to pay therefor, and that the deed executed by Hammock to King, conveying them, was as security for the money and in the nature of a mortgage, made a statement of the account between the parties, and declared a lien upon the lands for the amount still due, and from the decree this appeal comes. Samuel Frauenthal, of Little Rock, for appellant. Wm. T. Hammock, of Quitman, for appellee. KIRBY, J. (after stating the facts as above). [1] It is contended that the chancellor's finding is clearly against the preponderance of the testimony, and with this contention we agree. The evidence is undisputed, without regard to the nature of the first transaction between Hammock and King, that King thereafter sold the land, on June 2, 1908, to Crone, and executed a bond to convey the title upon the payment of the purchase-money notes; that these notes were not paid; that the bond for title was extended for 12 months; and at the end of that time that the trade was canceled and the bond for title surrendered to King, the maker, who at the same time delivered to Crone the unpaid purchase-money notes; that the possession of the land was also delivered to King, and that Crone thereafter rented it from King, giving his notes for the rent, which specified they were for the rent thereof. It is true that Crone says that a week or two after the transaction of the surrender of the bond for title he asked King to renew the bond and make him another bond for title, and was told that his word was as good as his bond, and that he continued in the belief that the bond would be executed until after the lands were rented to Boyd in 1913. He does not deny that he became a tenant of King after the surrender of the bond for title and executed notes for the rent of the land, some of which he paid. The voluntary rescission of the contract and surrender of the bond for title and the possession of the land for the unpaid purchasemoney notes released all right that appellee had theretofore. Friar v. Baldridge, 91 Ark. 140, 120 S. W. 989; Sullivan v. Dunham, 42 Mich. 518, 4 N. W. 223; Raffensberger v. Cullison, 28 Pa. 426. Joseph M. Boyd also testified that Crone asked him from whom his father had rented [2] If appellee had surrendered the bond the place, and was told from Mr. King, and for title on condition, contending that a new in this conversation he asked Crone who one should be executed, of course it would owned the place, and was told that Mr. King not have had effect to release his interest, owned it. Witness stated that the fences but, according to his own statement, it was were in bad condition, and he did not no- a week or two after the transaction of the tice any improvement on the place that ap- surrender of the bond before he asked for a |