87 Ark. 202 | Ark. | 1908
(after stating the facts). We are confronted, in limine, with the question raised by appellees as to whether the judgment should be affirmed for a failure to comply with rule nine of this court. It can' readily be seen from so much of the pleadings as we have set forth that the issues involved were mainly of fact. The court found that the pavement, as already constructed, and as- contemplated, and in process of construction, “was a nuisance.” It is impossible for this court to determine whether the court erred in this finding without a complete abstract of the evidence or the facts upon which the finding was based.
The appellants’ abstract the evidence as follows: “Appellants have shown by fifty-five witnesses that the pavement as laid does not obstruct the street for the free use of foot passengers, teams, and vehicles of all kinds or any part thereof, the witnesses being -competent to testify, showing a full knowledge of that of which they speak. They include the mayor of the city, street commissioner, the city marshal, road overseer of the township, chief of the fire department, - draymen, liverymen, teamsters, and all of the property owners living in the vicinity of the street in controversy, save the two plaintiffs, and the testimony of all these witnesses shows without exception that the pavement is not an obstruction, and it does not damage any person or property; that it is a necessary improvement; that the hill upon which the. pavement is laid is much more convenient for the safe travel of foot passengers, buggies and wagons, loaded teams and fire department than it could possibly have been made without the construction of the pavement; that the street is so situated, and the lay of the ground in that part of the city is such, as to make it absolutely necessary that it be retained for the safety and convenience of the general public. We call special attention to the evidence of Connelly Harrington, chief of the fire department, who states that he has been chief of. the fire department ever since the waterworks were put in, and that it is a part of his duties to make a study of the proper means and ways to quickly go to any part of the city in case of fire with the fire wagon, and that the pavement upon this hill is perfectly safe to travel over with wheeled vehicles of all kinds, going either up or down and to take the fire department over, and that the pavement is not an obstruction to travel of any kind upon that hill. We also call attention to the 'evidence of C. R. Stout, street commissioner of Siloam Springs, whose testimony is practically the same; also N. C. Moore, road overseer; Dr. J. T. Clegg; Dr. H. H. Canfield; drayman L. D. L,eflar; J. E. War-nick; B. D. Beshear; R. J. Allen; Ered Bartell; J. E. Porter, city marshal, and Mrs. Jennie Sparks; the testimony of’which is complete, and shows that there is no obstruction, and that there is no damage to any property, and their testimony is fully corroborated by the testimony of the remainder of the witnesses.”
This abstract only purports to set out what one witness states, to-wit: “That the pavement upon this 'hill is perfectly safe to travel over with wheeled vehicles of all kinds, going either up or down, and to take the fire department over, and that the pavement is not an obstruction to travel of any kind upon that hill.” This testimony is rather the conclusion of the witness, than a statement of the facts upon which the conclusion was reached. It does not describe how the sidewalk was constructed, give dimensions, location, etc. The residue of the abstract is the mere opinion of counsel as .to what the evidence shows, without giving an abstract of any facts testified to by the witnesses, by which we may determine whether or not the conclusion of counsel is correct. No page of the transcript is referred tó where the judges may readily turn to the testimony of the witnesses designated. The conclusion of the court below on the facts differs from the conclusion of counsel here, and it is the counsel’s duty in the abstract of the facts to show that the court was in error, by a succinct statement of the facts themselves, rather than by his opinion of what the facts show. This abstract does not relieve the judges of the time and labor of exploring the transcript of the record in order to ascertain the facts.
We have decided in many recent cases, under rule nine, that we would not do that. Carpenter v. Hammer, 75 Ark. 547; Koch v. Kimberling, 55 Ark. 547; Ruble v. Helm, 57 Ark. 304; Rosewater v. Schwab Clothing Co., 58 Ark. 448; Savage v. Lichlyter, 59 Ark. 1; Neal v. Brandon, 74 Ark. 320; Shorter University v. Franklin, 75 Ark. 571; St. Louis, I. M. & S. Ry. Co. v. Boyles, 78 Ark. 377; St. Louis, I M. & S. Ry. Co. v. Evans, 80 Ark. 19, 23; Jonesboro, Lake City & Eastern Rd. Co. v. Chicago Portrait Co., 81 Ark. 327; Stewart v. Bobo, 81 Ark. 66; O’Neal v. Parker, 83 Ark. 133; Wallace v. St. L. I. M. & S. Ry. Co., 83 Ark. 359.
The abstract of appellants in the particular indicated is fatally defective. The judgment must therefore be affirmed for a failure to comply with rule nine.