Hoag v. Lake Shore & M. S. R. Co., 85 Pa. to the one left by the defendant Lee in the 293, 27 Am. Rep. 653.

In Deming v. Merchants' Cotton Press, etc., Co., 90 Tenn. 306, 17 S. W. 89, 13 L. R. A. 518, this court said:

"The proximate cause of an injury may, in general, be stated to be that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another, which, had it not happened, the injury would not have been inflicted."

This definition was approved in the later cases of Railroad v. Kelly, 91 Tenn. 699, 20 S. W. 312, 17 L. R. A. 691, 30 Am. St. Rep. 902, Anderson v. Miller, 96 Tenn. 35, 33 S. W. 615, 31 L. R. A. 604, 54 Am. St. Rep. 812, and Chattanooga Light, etc., Co. v. Hodges, 109 Tenn. 331,. 70 S. W. 616, 60 L. R. A. 459, 97 Am. St. Rep. 844.

plaintiff's office, containing gasoline.

In Waters-Pierce Oil Co. v. Deselmes, 18 Okl. 107, 89 Pac. 212, the defendant sold to Powers & De Selmes two barrels containing a mixture of coal oil and gasoline, as ordinary coal oil. The two barrels were emptied into a galvanized iron tank in their store. The plaintiff was a clerk of Powers & De Selmes, and carried two gallons of this off to his home, and this oil became ignited while the plaintiff's wife was undertaking to kindle a fire in the stove. The evidence leading to that conclusion was circumstantial. The defendants sought to invoke the doctrine of contributory negligence upon the part of the plaintiff's wife in using the oil to kindle the fire in the stove. The court, in its opinion, said:

of defendant in error was at the time of the

"With reference to the charge of contributory [5] The plaintiff's declaration avers a state negligence contained in the answer of plaintiff of facts which show that the defendant Lee in error, no proof having been introduced other. willfully and deliberately misrepresented the than is shown by the general evidence in the contents of said can to the plaintiff at the case, which raises a presumption that the wife time he left it in his office, in that he told accident engaged in the act of kindling a fire the plaintiff that it did not contain gasoline with the use of the oil, we cannot hold that such or any other explosive substance. The aver-defense is sustained. The use of coal oil for ments of the declaration are amply sustain-such purpose is too common and too well known ed by the proof offered on behalf of the for the court to say that it was negligence plaintiff. While the plaintiff does not ex- on her part to so use it, beside the instinct of pressly so testify, it may be inferred from self-preservation justifies the presumption that his testimony that if he had been advised in so using it she did so with due care." that the can contained an explosive substance he would not have permitted the defendant Lee to leave it in his office. If the can had not been left in plaintiff's office by "The use of kerosene in kindling fires is too the defendant Lee it is certain that the accommon and too well known for us to say that cident, which resulted in injury to the plain that agency without being chargeable with nega person using reasonable care may not employ tiff, would not have happened.

In Ellis v. Republic Oil Co., 133 Iowa, 11, 110 N. W. 20, the court said.

ligence."

"The common knowledge of the community is that its [kerosene] primary use is for the purpose of illumination; that secondarily it is used in oil stoves for heating purposes. It is also used for the purpose of removing grease and oils from wood or iron, and for kindling fires, for any of these purposes is not uncommon, and as well as for many other purposes. Its use we think that the employment of it for the purpose of kindling fires is not in itself negligence."

We are of the opinion that the question of whether or not the defendant Lee's act in In Peterson v. Standard Oil Co., 55 Or. leaving the can in the plaintiff's office, and 511, 106 Pac. 337, Ann. Cas. 1912A, 625, the stating to him that it did not contain any-court said: thing dangerous or explosive, was the direct and proximate cause of the plaintiff's injuries was one for determination by the jury. We are of the opinion that the question of whether the defendant Lee should have reasonably anticipated that plaintiff might, through mistake, undertake to use the contents of the can for some of the purposes for which kerosene or coal oil is ordinarily used, and in doing so would sustain injury, was one for determination by the jury. We do not think it can be said, as a matter of law, that the defendant Lee could not reasonably have anticipated that such a result would happen from the leaving of the can in the plaintiff's office under the circumstances which the proof shows it was left. It is a matter of common knowledge that coal oil is generally used for illuminating purposes, both in lamps and lanterns, and is also commonly used for kindling fires, and that it is generally kept on every premises for one or

[6, 7] The fact that the plaintiff mistook the can containing the gasoline for his can, which contained coal oil, the two cans being identical, is not at all unreasonable or unnatural; and we are of the opinion that the defendants cannot be heard to say, after leaving the can containing a highly volatile fluid in the plaintiff's office, assuring him that it contained nothing dangerous or explosive, that the plaintiff was guilty of contributory negligence in mistaking the can

(222 S.W.)

contained coal oil, and in attempting to kindle | burns about his face and head.

The phy

a fire in the office stove with its contents. sician who attended him testified that all of The representations made by the defendants these burns were first and second degree to the plaintiff as to the contents of the can burns. The physician described the first dewere false and fraudulent, and constituted | gree burns as being those where there was a such willfulness, wantonness, and reckless- simple reddening of the skin, the burns not ness on his part as to show an utter disregard for the plaintiff's rights. This being true, the doctrine of contributory negligence cannot be invoked by the defendants to defeat his right to recover.

In view of the facts the defendants are responsible for the injury inflicted upon the plaintiff, even if it could be said that he were guilty of negligence in undertaking to kindle a fire in the office stove with what he thought to be coal oil. Railroad v. Roe, 118 Tenn. 601, 102 S. W. 343; Birmingham R., etc., | Co. v. Jung, 161 Ala. 461, 49 South. 434, 18 Ann. Cas. 557. In both of these cases the rule is announced that contributory negligence is not available as a defense where the injuries complained of were caused by the wanton or willful misconduct of the defendant.

We are of the opinion, therefore, that the Court of Civil Appeals committed error in sustaining the defendants' motion for a directed verdict, and in dismissing the plaintiff's suit.

The defendants also filed a petition for writ of certiorari, seeking to have reviewed the action of the Court of Civil Appeals in refusing to pass on certain other assignments of error made by them in that court.

being sufficient to cause blisters, that the second degree burns were those which cause blisters and cause the skin to peel off, and that third degree burns were those of sufficient severity and depth to cause the flesh of the burned member to slough. According to the testimony of the physician the worst burns the plaintiff had were on his hands and forearms, and he says that these were second degree burns. The evidence does show that the skin peeled off of the plaintiff's hands and forearms, and left some scars upon both his hands and his forearms; but there is no evidence tending to show that he is permanently injured. There is no evidence tending to show that he incurred any expenses in the way of hospital bills or for medical treatment. While it is true that he was confined in the hospital 22 days, his hospital bill was paid by the railroad company. Furthermore, the proof fails to show that he lost anything in the way of earnings while he was injured. The evidence does show that his injuries were very painful for at least a few days, but that he has fully and permanently recovered; there remaining only some scars on his hands and forearms as a result of said burns.

We have passed on these assignments of We are of the opinion that the sum of $2,error, and have discussed them in a memo- 500 would be ample compensation for the inrandum opinion, and they need not be dis-juries sustained by the plaintiff. It results cussed here. It suffices to say that none of them are sufficient to vitiate the verdict and judgment, and call for a reversal.

[8] Now, coming to the plaintiff's further assignment of error that the Court of Civil Appeals erred in holding that the verdict of the jury was excessive, we are of the opinion, after a careful reading of the evidence bearing upon the plaintiff's injuries, that the verdict was excessive. The evidence shows that the plaintiff was burned about the hands and forearms, and that there were some slight

that the judgment of the Court of Civil Appeals will be modified, in so far as it sustained the defendants' motion for a directed verdict and dismissed the plaintiff's suit; but its action in holding that the verdict in plaintiff's favor is excessive will be affirmed. And a remittitur is ordered; and, unless the same is accepted by the plaintiff, the judgment will be reversed, and the case remand. ed for a new trial. If the remittitur is accepted, the judgment, less the amount of the remittitur, will be affirmed, with costs.

Jonas F. Dyson, of Cotton Plant, for ap- for the jury. pellants.

(222 S.W.)

tions to that effect, and, over appellant's and that, if they had stopped the car and had objection, gave an instruction numbered 5 reading as follows:

"You are instructed that the plaintiff, in attempting to pass over defendant's track at the crossing, is only required to do what a man of ordinary care would do under similar circumstances to avoid any probable or possible danger from a passing train, and, if need be, stop as well as look and listen. If you find from the evidence in this case that the plaintiff in approaching the track at the crossing slowed up his automobile, looked and listened, and did not hear the approaching train, and did not hear any whistle blowing and any bell ringing, and that he could not see the approach of the train on account of the obstruction between him and the train, and you further find that this was all that a man of ordinary care would do under similar circumstances, then it will be your duty to find that the plaintiff is not guilty of contributory negligence, notwithstanding you find that the plaintiff did not bring his automobile to a full stop."

gotten out and walked up to the main track and looked in both directions, the train could have reached the crossing in the time it would have taken them to have gone back to the car and made it to the main track. Of course, one of the occupants of the car might have flagged it across the tracks; but the jury had the right to say whether due care on appellees' part imposed that duty. Appellee owned the car and was driving it. The instructions set out above told the jury that it was appellees' duty to do what men of ordinary care would have done under the circumstances; and we cannot say their conduct fell below that standard.

In the case of St. Louis, I. M. & S. R. Co. v. Stacks, 97 Ark. 410, 134 S. W. 317, substantially the same contention was made as is presented here, and it was there said:

"The evidence for appellee shows that neither the whistle was sounded nor the bell rung for the crossing; and while the omission of the engineer to give these statutory signals did not relieve appellee of the duty of looking and lis-· tening for the approach of trains, yet they are warnings which he had a right to rely on in determining whether a train was drawing near. According to appellee's own testimony, his view of an approaching train from the east was obstructed by box cars, both on the south and middle tracks. In such case, while the traveler must not relax his endeavor to see approaching trains, yet necessarily he relies to a great

The testimony developed the following facts: The main line of the railroad runs east and west through the town of McNeil, and a number of tracks are situated south of the main track. There is a sharp curve in the main track to the north on the west side of the town at about the point where the whistle is usually blown for the station. On the morning the accident occurred all the tracks south of the main track were blocked with cars for some distance west of the cross-degree upon his sense of hearing to discover ing Appellees were going north, and when they reached the crossing, which is of considerable width on account of the number of tracks, they slowed down the car, put it in low gear, and looked and listened and continued to look and listen for a train, and, not hearing one, drove on over the crossing with out seeing the engine until they were within about five or six feet of it and too close to avoid the collision. The engineer admitted that the engine was not working steam, but that the train rolled into the station under its own momentum, and, according to the testimony offered on appellees' behalf, the whistle was not blown nor was the bell rung. The failure to blow the whistle or ring the bell constituted the negligence complained of, and the jury's verdict has resolved in appellees' favor the conflict in the testimony on that question.

We think the testimony recited made a case for the jury; in other words, we are unable to say as a matter of law that appellees should have stopped their car before crossing the tracks. Indeed, appellees insist that, if they had stopped the car, they could not have seen the train or its smoke, as very little smoke was escaping, and that it was making no noise which they could have heard,

the approach of a train, and in doing this he listens not only for the noise made by the running of the train but for the signals which the engineer is required to give by ringing the bell or sounding the whistle for the crossing. Apin possession of all his faculties and continually pellee's testimony tends to show that he was exercised them during his passage over the crossing. The testimony adduced by him shows that the headlight was dim, and on that account its rays did not warn him. It is admitted that the steam had been shut off, and that the train was drifting or gliding in, and on this account the jury might have. inferred that the train came in with little noise, and no smoke escaping to give warning of its approach, that it had rounded the curve before appellee came he could not see it on account of the box cars upon the crossing, and that for this reason obstructing his view. If he could have seen it after it passed the curve, the jury might have found that it would have done no good for him to have stopped his wagon between the south and middle tracks to have tried to look between the box cars on those tracks.”

The doctrine of that case was reiterated in the recent case of Billingsley v. St. L. S. F. R. Co., 136 Ark. 1, 206 S. W. 43.

No error appearing, the judgment is affirmed.

RELIANCE LIFE INS. Co. v. HARDY. (No. 4.)

(Supreme Court of Arkansas. May 24, 1920.)

1. Continuance 12-For illness of counsel within discretion of court.

Defendant life insurer's motion for postponement of trial on account of the illness of its leading counsel was addressed to the discretion of the trial court.

10 days, which entitled him to sick benefits under his health policy in the sum of $20. The claim for this sick benefit was sent in to

the company, according to the testimony of the appellee, "some time in July or August." "She was not sure about the date." At any rate, there was a delay in paying this claim until November 10th, when the company sent Hardy, by letter, check for $20, which he received November 14, 1917, and signed receipt to the company for the amount thereof, dated 2. Continuance 12-Motion properly denied November 10, 1917. On the same day Hardy where defendant knew of illness of counsel. applied to the company to reinstate his poliWhere defendant life insurer knew its lead-cies, remitting to appellant, with his applicaing counsel was ill, and should have anticipated tion, the sum of $19.88. This application was services of other counsel might be necessary, declined by appellant on November 17, 1917. but failed to take steps to procure tuem, trial Appellant on that day returned to Hardy the court did not abuse discretion in overruling in-amount of his remittance, which he accepted. surer's motion for postponement of trial on account of illness of counsel.

The quarterly premium due on October 3, 1917, on the life policy was the sum of $19.88. Under the terms of the policy, if this quarter

3. Insurance 360 (3)-Life policy not forfeited for nonpayment of premium where in-ly premium was not paid one month after the surer had funds belonging to insured.

Where an insurer, on last day of grace for payment of $19.88 quarterly premium on life policy, had in its hands $20 belonging to insured as a benefit payable to him under a health policy issued by insurer, it cannot claim the life policy was forfeited for insured's failure to pay the quarterly premium; if insurer had in its possession funds belonging to insured derived from any source, it was its duty to appropriate and apply them to prevent forfeiture.

Appeal from Circuit Court, Phillips County; J. M. Jackson, Judge.

same became due, the policy lapsed. If paid on the 3d of October or one month thereafter, then the policy did not lapse, but continued in force until the next quarterly payment, which was due January 3, 1918.

Hardy, the insured, died on the 20th of December, 1917. The appellee instituted this action on the life policy which was in the sum of $3,000.

The appellant denied liability on the ground that, at the time of Hardy's death, the policy had lapsed, because of the nonpayment of the premium, which in order to keep the policy in Action by Velma Hales Hardy against the force should have been paid on or before NoReliance Life Insurance Company. Judg-vember 3, 1917.

ment for plaintiff, and defendant appeals. The case was called for trial on October 30,

Affirmed.

1919. Messrs. Bevins & Mundt had been reMilton B. Rose, of Memphis, Tenn., for ap-tained the day before to assist Hilton B. Rose, pellant. leading attorney for appellant in the trial of Moore & Vineyard and Fink & Dinning, all the cause. Appellant, through its assistant of Helena, for appellee.

counsel, asked for a postponement of the trial until a later day of the term, assigning as a

WOOD, J. On July 3, 1916, the appellant reason that they had not had sufficient time to issued to Eno D. Hardy two policies of insur-acquaint themselves with the facts and law ance. One was a life policy and the other a of the case, and that Milton B. Rose was sick health policy. They were separate instru- and unable to attend. The court overruled ments and separate contracts, but between the motion. the same parties. The health policy was is- The above were the issues and facts develsued for a period of 12 months and was made oped at the hearing upon which both parties payable to the insured, and was not assign- asked for a peremptory instruction. The able, except by the written consent of the com- court granted the prayer of the appellee and pany. The life policy was payable to the ex- instructed the jury to return a verdict in the ecutors, administrators, assigns, or benefici- sum of $3,337.60. Judgment was rendered for aries of the insured. The annual premium on the appellee in that sum, from which is this the health policy was $19.50. The annual pre-appeal.

mium on the life policy was $56.58. On Au- [1, 2] Appellant contends that the court gust 9, 1917, at the request of the insured erred in overruling its motion for a postponethe premiums on the life policy were made ment to a later day in the term on account payable quarterly instead of annually, and of the illness of its leading counsel, Milton the beneficiary was changed to the insured's B. Rose. The certificate of the physician atwife, Velma Hales Hardy, the appellee. tached to the motion shows that Rose had August 18, 1917, Eno D. Hardy contracted been ill all the summer. The issue had been fistula and was confined on account thereof made up for more than 18 months at the time