the testimony of the contestants had been believed. COWLING v. BRITT et al. (No. 116.) (Supreme Court of Arkansas. July 13, 1914.) [2] The fact that the testator omitted the "n" in his signature in writing his first name, Emanuel, on one of the sheets of the will, in no wise affects its validity, for there is no contention even that he did not intend to and that he did not sign the will. The whole testimony on that point shows that he intended to and did sign it. 40 Encyclopedia, 1107;sion of the case for decision. 1. APPEAL AND ERROR (§ 338*)-CROSS-AP- Plates' Estate, 148 Pa. 55, 23 Atl. 1038, 33 [3] Neither did the designation of his son's son in the will as his nephew, instead of his grandson, affect its validity, for he gave the names of both, and showed that one was the son of the other, and the mistake was a clerical error, easily apparent, and the beneficiary was sufficiently designated. [4, 5] It is earnestly contended, also, that the court erred in not instructing the jury that the will was void as to one of the con testants, a granddaughter whose name was omitted therefrom, and also that it was the court's duty to instruct the jury that the city of Argenta, the nearest to the property devised for the park, was incapable of taking under the will under the laws of the state. There was no necessity for the court to submit to the jury the question of Lucy Russell's, a granddaughter whose name was not mentioned in the will, rights therein, since there was no contention made by any one that the will was not ineffectual as to her. The fact was in evidence to the jury, and contestant had whatever benefit might arise from it and the argument. The instruction to the jury would only have been confusing, and would not have conduced to any clearer understanding of the issues involved. Contestants did not ask the court to instruct the jury that the city of Argenta could not, under the law, hold this property and maintain it as a park under the provisions of the will, and cannot, therefore, complain of the court's failure to do so if such was the law. It could make no difference in the question of the testator's capacity and the valid ity of the will if the city was without power to take the benefit of the gift, which we do not decide, and make a park upon the lands devised for the purpose; for if it had had no such power and could not have held them, then they would have reverted to the heirs of the testator, these contestants, in any event because of the failure of the devise to the city. We do not consider the other objections urged of sufficient importance to discuss them at length, it being sufficient to say that the issues were submitted to the jury on proper instructions, and we find no prejudicial error in the record. The judgment is affirmed. tains an appeal from the clerk of the Supreme Where plaintiff files his transcript and obCourt, the whole record is before the court, and defendant may, under the statute, pray and obtain a cross-appeal at any time before submis [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1879-1882, 3057; Dec. Dig. § 338.*] 2. MORTGAGES (§ 295*) CONVEYANCE TO MORTGAGEE-MERGER. debt is not extinguished in equity by a subseThe lien created by a mortgage to secure a quent conveyance by the mortgagor to the mortgagee, so as to let in a purchaser at execution sale under a judgment recovered after the making of the mortgage, though the execution sale occurred prior to the conveyance. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 815, 817-831; Dec. Dig. § 295.*] 3. MORTGAGES (§ 594*)-REDEMPTION-RIGHTS OF JUNIOR LIENOR. A purchaser at an execution sale under a judgment rendered against a mortgagor subsequent to the execution of the mortgage, may redeem from the mortgage, notwithstanding a conveyance after the execution sale by the mortgagor to the mortgagee, and the execution purchaser may acquire possession only by paying the mortgage debt with accrued interest. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1709-1731; Dec. Dig. § 594.*] 4. SUBROGATION (§ 16*)-PURCHASER AT ExeCUTION SALE OF MORTGAGED REAL ESTATE. after the return day, who purchases for the A purchaser at a sale under an execution amount of the judgment, and who pays the amount to the sheriff, who applies the same in satisfaction of the judgment, is entitled to be obtaining, after the execution sale, a conveyance subrogated to the rights of a senior mortgagee, from the mortgagor, on electing to discharge the mortgage debt and redeem from the mortgage, and he is also entitled to be subrogated to the rights of the judgment creditor, and entitled to have the land sold to repay him the amount paid under the execution sale. [Ed. Note. For other cases, see Subrogation, Cent. Dig. §§ 37, 41-43, 79; Dec. Dig. § 16.*1 Appeal from Columbia Chancery Court; Jas. M. Barker, Chancellor. Ejectment by J. T. Cowling against W. W. Britt and others. From a decree plaintiff and E. N. Payne appeal. Reversed, with di rections. J. T. Cowling instituted an action in ejectment in the circuit court against W. W. Britt, Cleveland Britt, and E. N. Payne to recover possession of a certain tract of land in Columbia county, Ark. W. W. Britt and Cleveland Britt filed an answer, in which they denied that W. W. Britt was in possession of the tract of land in controversy, and said that Cleveland Britt was in possession of the same as a tenant of the defendant E. N. Payne. They denied that either of them claimed any right or title to the land, and also denied that the plaintiff is entitled to possession of the same. E. N. Payne filed a •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No Series & Rep'r Indexes HART, J. (after stating the facts as above). The cause was heard and determined before the chancellor at the April term, 1913, of the Columbia chancery court. Neither the plaintiff, Cowling, nor the defendant Payne perfected the appeal granted to the Supreme Court by the chancery court. But on the 8th day of April, 1914, the plaintiff, Cowling, obtained an appeal from the clerk of the Supreme Court. Subsequently the defendant Payne prayed a cross-appeal, which was granted. [1] When the plaintiff filed his transcript and obtained an appeal from the clerk of the Supreme Court this brought the whole record before the court, and the defendant, under our statute, had a right to pray and obtain a cross-appeal at any time before the cause was submitted to us for decision. Beidler v. Beidler, 71 Ark. 318, 74 S. W. 13; Howell v. Jackson, 86 Ark. 530, 111 S. W. 999. It will be noted from the statement of facts that the deed of trust from W. W. Britt and wife on the lands in controversy to secure the defendant E. N. Payne for an indebtedness of $500 and the accrued interest, owed him by Britt, was executed on the 12th day of April, 1909, and that the execution under which the plaintiff purchased was delivered to the sheriff of Columbia county on the 14th day of August, 1909. Subsequently, on the 9th day of September, 1910, Britt and wife conveyed the land to Payne in satisfaction of his indebtedness secured by the deed of trust and for other indebtedness owed by Britt at that time to Payne. separate answer, in which he denied that he was in the unlawful possession of the tract of land in controversy, but stated that he was in possession of the same as the rightful owner thereof. On motion the case was transferred to equity and was heard and determined there. The facts are as follows: Both parties claim from a common source of title. R. J. Stanley recovered judgment in the Supreme Court against W. W. Britt in the sum of $613, with interest thereon from January 21, 1908, until paid, and also for the sum of $150.30 as his costs in that suit expended. On the 10th day of August, 1909, Stanley ordered an execution to be issued upon said judgment by the clerk of the Supreme Court. The execution was directed to the sheriff of Columbia county, and came into his hands on the 14th day of August, 1909. The sheriff levied the execution on the lands in controversy, and on the 22d day of September, 1909, duly advertised them for sale on the 15th day of October, 1909. On the latter day the land was sold by the sheriff to J. T. Cowling for the sum of $760.30, he being the highest and best bidder therefor. After 12 months had elapsed, viz., on the 13th day of March, 1911, the sheriff executed to J. T. Cowling a sheriff's deed for said | land, in which the above facts were recited. On the part of the defendant Payne, it was shown that on the 12th day of April, 1909, W. W. Britt and his wife executed a deed of trust to him on said land to secure the sum of $500, evidenced by the note of W. W. Britt of that date, due and payable on the 1st day of January, 1910, with 10 per cent. inter- [2] It is conceded by counsel for plaintiff est from date until paid. The deed of trust that the deed of trust gave Payne a prior was duly filed for record on the 13th day of lien on the land in controversy to the lien of April, 1909. On the 9th day of September, the execution under which plaintiff purchas 1910, W. W. Britt and his wife executed aed, but it is the contention of counsel for deed to said land to the defendant Payne. | plaintiff that there was a merger when Britt The consideration recited in the deed was conveyed the lands to Payne in September, $800, and consisted of the debt secured by 1910, and that this made the execution a the deed of trust and an additional indebted- | prior lien on the land. It will be rememberness of Britt to Payne. The chancellor founded that the case was transferred to equity that the defendant Payne had a lien on the and tried there. lands in controversy to secure the indebtedness of $500 and the accrued interest recited in the deed of trust given by Britt to him on the lands in controversy, and that the plaintiff, Cowling, was the owner of the lands, and was entitled to immediate possession thereof upon the satisfaction of Payne's lien. It was therefore decreed by the court that the plaintiff, Cowling have and recover from the defendants the lands in controversy, and that said plaintiff have a writ of possession, directing the defendants to deliver to him possession of the aforesaid lands upon his payment to the defendant Payne the amount of his lien as above stated. Both the plaintiff and the defendant Payne prayed an appeal to the Supreme Court, which was granted by the chancery court. "Where a mortgagee takes a conveyance of the land from the mortgagor or from a grantee of the mortgagor, if the transaction is fair, the presumption of an intention to keep the security alive is very strong. It is generally for the interests of the party in this position that the mortgage should not merge, but should be preserved to retain a priority over other incumbrances. As the mortgagee acquiring the land is not the debtor party bound to pay off either land there is nothing to prevent equity from the mortgage or the other incumbrances on the carrying out his presumed intent by decreeing against a merger." Pomeroy's Equity Jurisprudence (3d Ed.) vol. 2, § 793. In 27 Cyc. p. 1381, the doctrine is stated as follows: "Where a mortgagee receives a conveyance of mortgage will not merge, but will be kept alive the equity of redemption, his estate under the to enable him to defend under it against liens of third persons, whether by mortgage, judg C. W. McKay, of Magnolia, for appellants. ecution of the mortgage and the giving of the ment, or otherwise, attaching between the exStevens & Stevens, of Magnolia, for appellee. | deed, if his intention to that effect is shown, or if there is nothing to rebut the presumption execution. But the land was purchased for that his intention corresponded with his in- the amount of the judgment against the exterest." ecution debtor, and was applied to the satisfaction of the judgment and, as far as the record shows, no objection was made thereto by the execution debtor. In other words, Cowling bid in the land for the amount of the Many cases are cited in support of the rule, and among them is the case of Cohn v. Hoffman, 45 Ark. 376. In that case the court held: "A purchaser of mortgaged land at a sale under execution issued upon a judgment rendered against the mortgagor since the recording of the mortgage acquires only the mortgagor's equity of redemption, and cannot maintain ejectment against the mortgagee in possession after breach of the condition of the mortgage. remedy is by bill in equity to redeem.' His [3] In the case of Neff v. Elder, 84 Ark. 277, 105 S. W. 260, 120 Am. St. Rep. 67, the court said that the doctrine of the merger of the mortgage lien with the legal title, when they are united in the same person, has no application in a case where the principles of equity demand that they be treated as separate. In the application of this doctrine to the facts in the present case it may be said that the lien created in favor of Payne by the execution of the deed of trust on the lands in controversy to him by Britt is not extinguished in equity by the subsequent conveyance of the land to him by Britt, so as to let in a junior lienor in preference to him. The mortgage will be treated as existing, and the land, in the hands of Payne, is not liable to any greater extent to the payment of the lien acquired by the issuance and levy of the execution than it would have been if the land had remained in the hands of Britt. The judgment is subordinated to the lien of the mortgage, and the junior lienor may redeem. It follows that the chancellor did not err in holding that the plaintiff could acquire possession of the premises only by paying off the $500 and the accrued interest which was secured by the deed of trust executed by Britt to Payne. [4] In reference to the issues raised by the cross-appeal, it may be said that the statement of facts shows that the land was sold under the execution after the 60 days within which the sheriff had to return the execution had expired. In the case of Hightower et al. v. Handlin & Venneys, 27 Ark. 20, it was held: "The sale of real estate, under an execution, after the return day, is without authority and void." In the subsequent case of Huffman v. Gaines, 47 Ark. 226, 1 S. W. 100, the court held that a debtor may waive an improper notice of the sale of his property under execution, and does waive it when he suffers the execution to be satisfied, and accepts the surplus of the proceeds of the sale and retains them, after notice of the irregularity. The court further said: "It has been held that even where the sale is void receiving the purchase money by the debtor would make it valid." In the present case there was no surplus arising out of the sale under execution, and consequently the execution debtor did not receive any of the proceeds of the sale under 169 S.W.-50 judgment and costs against Britt, and paid that amount to the sheriff, which was applied in satisfaction of the judgment. In the case of Neff v. Elder, supra, the court held that a purchaser of land whose money was used in discharging a valid mortgage lien thereon, upon failure of his title, will be subrogated to such lien as against the intervening rights of another. In the case of Bond v. Montgomery, 56 Ark. 563, 20 S. W. 525, 35 Am. St. Rep. 119, Mr. Justice Battle, speaking for the court, said: "Upon the right of purchasers at void execution or judicial sales to subrogation to the rights of creditors to the payment of whose claims the purchase money paid by them has been appropriated courts are not agreed. Many consider and for no purpose of protecting any interest of them as volunteers acting without compulsion their own, and under a mistake of law, and therefore not entitled to the protection of courts of equity. On the other hand, others hold that ural principles of equity and justice; that purthe doctrine of subrogation rests upon the natchasers at such sales, who are entitled to the benefit of subrogation, are not volunteers; that they purchase at a sale made under the coercive are getting the property sold, and their money process of law, under the honest belief that they is actually applied to the benefit of the owner in paying his debts or removing charges or liens upon his property, and that it would be in the highest degree inequitable and against good conscience to permit the owners, the administrators or creditors, as the case may be, to hold or enjoy at the same time the benefit of the property sold and the money of the purchaser without recompense, and that, in order to prevent this injustice and wrong, they should be subrogated to the rights of the creditors, or to the benefit of the liens or charges, to the payment of whom or which their money has been applied. According to the latter view, it is the belief of the purchaser that he is getting the property sold, and the actual application of the money to the benefit of the owner in paying his debts in removing a charge or lien on his estate, which constitute the equity. There is no conflict between this view and the maxim of caveat a failure of title, 'because of a want of owneremptor. That maxim applies where there is ship in the property by the defendant in the execution or in the intestate' or testator 'but it does not apply to the defects in the title of the purchaser occasioned by a failure of the sale to pass the title of the defendant's intestate,' or testator. The latter view has been adopted by this court, and is sustained by the decided preponderance of authority" (citing authorities). Subrogation is a doctrine of purely equitable origin, and in its operation is always controlled by equitable principles. In the application of the doctrine to the facts in the present case we are of the opinion that Cowling is entitled to be subrogated to the lien of the judgment creditor in the case of Boland v. Stanley, 88 Ark. 562, 115 S. W. 163, 129 Am. St. Rep. 114, and is entitled to have the land sold for the repayment of the amount to him of the purchase money paid by him for the land under the execution sale CIANS. and, upon the payment of the amount of the, 4. WITNESSES (§ 211*)-COMPETENCY-PHYSImortgage debt of $500 and the accrued interest to Payne, he will be subrogated to Payne's rights under the mortgage, and will be also entitled to have the land sold for that pur pose. It follows that so much of the decree as holds that the lien of Payne for the sum of $500 and the accrued interest, secured by the deed of trust executed to him by Britt, was a prier lien on the land will be upheld. And, in the application of the doctrine of subrogation, if the plaintiff, Cowling, elects to discharge this debt of Britt to Payne and redeem from the mortgage, he will be entitled to be subrogated to the rights of Payne and to have the land sold for that purpose. As above stated, he will be also subrogated to the rights of the judgment creditor, and will be entitled to have the land sold for the purpose of repaying him the amount he paid under the execution sale for the land. The decree will therefore be reversed and the chancellor directed to enter a decree in accordance with this opinion. In an action for injuries to a passenger by falling on a defective depot platform, a physician, who had attended her, was rendered incompetent, by Kirby's Dig. § 3098, forbidding a physician to disclose any information acquired fessional character, and which information was from a patient while attending him in a pronecessary to enable him to prescribe as a physician, to testify that the passenger was afflicted with cancer and died of that disease. Cent. Dig. 88 768, 773; Dec. Dig. § 211.*] [Ed. Note.-For other cases, see Witnesses, 5. TRIAL (§ 260*)—Request to Charge—In STRUCTIONS GIVEN. Requests to charge, fully covered by instructions given, may properly be refused. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. § 260.*] 6. CARRIERS (§ 319*)-INJURIES TO PASSEN GER-DAMAGES-EXCESSIVENESS. Decedent, a small woman of delicate health, after alighting from one of defendant's trains, fell quite heavily on the steps leading from the depot platform to the ground. She was assisted to her home, where she was put to bed, and died 11 months thereafter. There was evidence that after her injury she was discovered to have a uterine cancer, and that this caused her death, but there was also proof that the symptoms of cancer did not develop until some time after the injury. She suffered severe hemorrhages and considerable pain. Held, that ST. LOUIS, I. M. & S. RY. CO. v. FUQUA. a verdict allowing her administrator $1,500 was (No. 94.) (Supreme Court of Arkansas. July 6, 1914.) 1. CARRIERS (§ 286*) -TRANSPORTATION OF PASSENGERS-DEPOT PLATFORM. A railroad company must exercise ordinary care to keep its platform in a safe condition for the use of its passengers and others who have a right to go there. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1142-1148, 1150-1152; Dec. Dig. § 286.*] 2. CARRIERS (§ 347*)-INJURIES TO PASSENGER-DEFECTIVE PLATFORM-CONTRIBUTORY NEGLIGENCE. Where defendant's depot platform was about five feet higher than the surrounding land, and a retaining wall was constructed around the platform which projected four or five inches above the floor at the place where steps were provided to reach the ground below, and decedent, after debarking from a train, caught her foot on the platform projection, which caused her to fall, she was not guilty of contributory negligence, as a matter of law, in not seeing the projection and exercising more care so as not to fall. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. 347.*] 3. CARRIERS (§§ 320, 347*)-INJURIES TO PASSENGER-DEFECTIVE PLATFORM-NEGLIGENCE CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. In an action for injuries to a passenger by catching her foot on a raised edge of the depot platform and falling on the steps after she had alighted from a train, evidence held to require submission of the question of the carrier's negligence and the passenger's contributory negligence to the jury. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325, 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. §§ 320, 347.*] not so excessive as to justify interference by the Supreme Court. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1338-1345; Dec. Dig. § 319.*] Appeal from Circuit Court, Desha County; Antonio B. Grace, Judge. Action by J. W. Fuqua, as administrator of Mrs. Ida Fuqua, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. E. B. Kinsworthy and T. D. Crawford, both of Little Rock, and Jas. C. Knox, of Monticello, for appellant. E. E. Hopson, of Arkansas City, for appellee. HART, J. J. W. Fuqua, as administrator of the estate of Mrs. Ida Fuqua, instituted this action against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages on account of the alleged negligence of said railway company in failing to provide a safe platform for its passengers. The railway company denied negligence and alleged contributory negligence on the part of Mrs. Ida Fuqua. The facts proved by appellee, briefly stated, are as follows: The depot platform of the railway company at Arkansas City is made of cinders and clinkers, and the platform is about five feet higher than the surrounding land, and has a retaining wall around it constructed of wooden beams. On the 7th day of September, 1911, Mrs. Ida Fuqua and one of her daughters debarked from one of appel. lant's passenger trains at Arkansas City and started across the platform. they arrived at the top of the steps, Mrs. Just as For other cases see same topic and section NUMEER in Dec. Dig. & A. Dig. Key-No. Series & Rep'r Indexes Fuqua fell. Her daughter, at the time, had | say, as a matter of law, that she saw, or hold of her arm, and they both stumbled should have seen, the projection above the and fell together. platform, and was therefore guilty of negli As was said in the case of St. Louis, Iron Mountain & Southern Railway Co. v. Barnett, supra: "Passengers are invited by railroads upon their station platforms for the purpose of makThere is always more or less noise and confuing entrance to and exit from their trains. sion incident to the running of trains. Then the jostling and scurrying to and fro of the crowds, passengers and others, coming and going, altogether make the circumstances quite unpropitious for passengers to make minute or extended investigations for their own safety. They do not have to do so. They may naturally and properly expect that the railroad has used every reasonable and prudent precaution to make their platforms safe, and may rest upon that assurance, only exercising ordinary care to prevent injury to themselves in the use of them." Mrs. Fuqua was a small woman, weigh-gence. ing about 93 pounds, and her daughter held her up so that neither of them fell flat to the ground. They both stumbled and fell down the steps, and Mrs. Fuqua was wrenched in the fall. The daughter stated that, as they went to step off the platform down to the steps, there was a projection of the retaining wall four or five inches higher than the cinders, which composed the platform, and that her mother stumbled over this projection, and that caused her to fall. Mrs. Fuqua and her daughter went about two blocks from the depot to the office of Mr. Fuqua. Mr. Fuqua then assisted his wife home and placed her in bed. She began to have hemorrhages from the womb a day or two after that, and continued to have them until her death, about 11 months thereafter. She was never able to leave the house after she was injured, and suffered intense pain most of the time thereafter until she died. [3] The jury were the judges of the credibility of the witnesses and the weight to be given to their testimony, and, under the facts and circumstances adduced in evidence, we think the questions of the negligence of the On the other hand, it was shown by the railway company and the contributory neglirailway company that there was no projec-gence of Mrs. Fuqua were properly left to tion of the retaining wall above the floor of the platform, and that the platform was safe in every particular. It is contended by counsel for appellant that the railway company was not guilty of negligence in constructing and maintaining its platform, and that Mrs. Fuqua was guilty of contributory negligence. [1] In the case of Arkansas Midland Railway Co. v. Robinson, 96 Ark. 32, 130 S. W. 536, the court held: "It is the duty of a railway company to exercise ordinary care to keep its platform in a safe condition for the use of its passengers and others who have a right to go there." In that case there was testimony tending to prove that plaintiff went upon defendant's platform for the purpose of taking passage upon the cars; that her heel caught in a small hole in the platform steps; that she lost her balance, fell, and was injured. A finding that the defendant was negligent, and that plaintiff was not guilty of contributory negligence, was sustained. See, also, St. L., I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255, 45 S. W. 550. the jury as questions of fact. [4] Counsel for appellant offered to prove by a physician, who had attended Mrs. Fuqua, that she was afflicted with cancer and died of that disease. The court held that the testimony was incompetent, and the ruling of the court was correct. The excluded testimony was objected to by counsel for appellee, because, under section 3098 of Kirby's Digest, a physician may not disclose any information which he may have acquir ed from his patient while attending him in a professional character, and which information was necessary to enable him to prescribe as a physician. See Missouri & North Arkansas Railroad Co. v. Daniels, 98 Ark. 352, 136 S. W. 651; Mutual Life Ins. Co. of New York v. Owens, 164 S. W. 720. [5] Counsel for appellant asked the court to instruct the jury that, if it should find from the evidence that, by the exercise of ordinary care for her own safety, Mrs. Fuqua could have prevented the injury, then it was the duty of the jury to find for the railway company. The instruction asked was fully covered by another instruction given by the [2] It will be noted, in the present case, court, and there was no error in refusing to that the evidence for appellee shows that give it. We have repeatedly held that the the depot platform was about five feet higher court is not required to multiply instructhan the surrounding land, and that steps tion upon the same point. Counsel for apwere constructed leading up to the platform; pellant admit that the instruction given by that a retaining wall was constructed the court covered the point, but claim that around the platform; and that it projected the instruction given was not in as simple four or five inches above the floor of the and plain language as that asked by them. platform where the steps were. Mrs. Fuqua We do not agree with them in this contenand her daughter debarked from the train tion. We have examined the instructions and started to go down the steps of the given by the court on this point, and think platform, when Mrs. Fuqua's foot was caught the jury could not have misunderstood its on the projection above the platform, which meaning. It therefore was not necessary caused her to stumble and fall. We cannot for the court to repeat the instruction in |