Smith, J., (after stating the facts). (1-2) Instruction numbered 2, given by the court, was evidently framed under the impression that section 6607 of Kirby’s Digest applied to handcars. But such is not the case. That section makes it the duty of all persons running trains in this State to keep a constant lookout for persons and property upon the track of any railroad, and further provides that the railroad company shall be liable for any damage done to any person or property by reason of the failure to keep this lookout, and imposes upon the railroad company the burden of showing that this duty has been performed. But this burden is imposed only upon persons running trains. The history of the section quoted is well known. It is Act No. 125 of the Acts of 1891, found on page 213 of the acts of that year, and has a preamble referring to the decision of this count in the case of M. & L. R. R. R. v. Kerr, 52 Ark. 162. That case held that the extent of a railroad’s duty to the owner of stock which had strayed upon its track was to use reasonable and ordinary care to avoid injuring it after discovering its presence on the track, and that it was not negligence for the railroad company to fail to keep this lookout for stock. This act was intended to impose a duty which the court had decided did not previously exist; but this duty was imposed only on persons running trains; and a handcar, even though propelled by some mechanism or machinery, and not by hand, is not a train. This section, 6607, was amended by Act No. 284 of the Acts of 1911, page 275, by the addition of a proviso to the effect that the right to recover damages should not be -defeated by the contributory negligence of the person injured where, if such lookout had been kept, the employees in charge -of the train could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril; 'and imposed upon the railroad company the burden to show that its duty to keep this lookout had been performed. But, as thus -amended, the section applies only to persons operating trains. The duty of persons running a handcar, to keep a lookout, is, therefore, not a statutory one; ¡but the duty to exercise reasonable care is a duty that does exist, whether .commanded by statute or not. However, while the instruction given is not 'correct, as an abstract proposition of law under all circumstances, it was -a correct declaration of the law as applied to the facts of this case. This court has held in numerous oases that one crossing a railroad track must look or listen, and that the failure so to do is contributory negligence, unless some circumstance in proof excuses the failure to perform this duty. The reason for the rule is that the track is <a warning of danger and every one must know that trains run at all hours and are likely to pass at any time. And for the same reason we would hold, -even in the absence of a statute imposing the duty upon persons running trains to keep a lookout, that the duty to keep a lookout exists, and that this duty is not limited to persons running trains, but rests upon all persons operating any agency which may be dangerous to persons at railroad crossings. All persons must know that railway crossings are liable to be used at any time. This knowledge is imputed as a matter of law and, having this knowledge, this lookout must be kept at crossings, independently of any statutory requirement. In the Kerr case, supra, it was said that there was an obligation due to persons from railroad companies to preserve a strict lookout while running their trains. The injury here sued for occurred at a crossing, and the- instruction was, therefore, correct as applied to the facts of this ease.
(3) The issue of contributory negligence was properly submitted to the jury, as the proof on the part of appellee was that the injury occurred about dark, when he could not see distinctly, and the car carried no lights, ■and the noise of its approach was drowned by the roar of the freight train which passed just ahead of the car.
(4-5) Appellant’s instruction numbered 2 was properly refused. The instruction, as we understand it, told the jury that, if an agreement to settle had been made and reduced to writing, and had been performed in part by appellant, and a tender of performance of other parts had been made, and that appellant was ready to perform all other parts thereof, that a verdict should be returned for defendant. This being upon the theory that there was an .accord and satisfaction. Appellee testified that he took the check because the claim agent told him he would never get anything else, but that he had no intention .to cash it, and did not do so. And it is undisputed that the railway company did not settle with appellee’s attorney, and has not attempted to do so, except that it expressed its willingness so to do in its answer. This is not an accord and satisfaction.
In 1. Corpus Juris, § 20, page 363, it is said: “Mere readiness to perform is insufficient, and while there are a few decisions which seemingly hold an accord, with tender of performance and refusal to accept, is equivalent to satisfaction, and may be so pleaded in bar of the action on the original claim, the great weight of authority is directly to the contrary. The majority of decisions are to the effect that tender of performance is in no case equivalent to performance and, therefore, not a satisfaction of the original obligation. Nothing short of actual performance, meaning thereby performance accepted, will suffice. But this rule, as is elsewhere shown, would not apply in a case where a new agreement or promise, instead of the performance thereof, is accepted in satisfaction.”
And sections 21 and 22, page 364, of the same authority read as follows :
“Sec. 21. Accord and part performance do not constitute satisfaction. It is merely executory so long as by its terms something remains to be done’in the future. If performed in part only, the original right of action remains and the party to be charged is allowed what he has paid in diminution of the amount claimed.”
(6) “Sec. 22. Performance of part, and readiness to perform the balance, or performance in part and tender of performance of the balance, are likewise insufficient to constitute a satisfaction.” This statement of the law is subject to the qualification that one may take such action, or accept such benefits, as to place it out of his power to abandon the contract of compromise, in which event his remedy is to sue on the agreement of compromise for damages for the part that remained unperformed. Whipple v. Baker, 85 Ark. 439. But that exception does not apply here.
See also North State Fire Ins. Co. v. Dillard, 88 Ark. 476; Grimmett v. Ousley, 78 Ark. 304.
The instruction was properly refused.
Instruction No. 3, asked by 'appellant, is conceded to be a correct declaration of the law; but it is urged that it was not asked in apt time.
(7) Section 6196 of Kirby’s Digest provides the order of trial after the jury has been sworn. Subdivisions 1, 2, 3 and 4 thereof cover the progress,of the trial to the conclusion of the evidence. The fifth subdivision of this section provides:
“5. "When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given by the court, which instructions shall be reduced to writing if either party require it. ’ ’
The sixth subdivision relates to the argument before, the jury. •
"We think the trial judge has the discretion to require that the instructions be settled before the argument begins and, as a means to this end, may require any special request for instructions to be made before the opening of the argument. Of course, this discretion is not an absolute cue, for questions might be raised in the ■argument which would necessitate additional instructions by the court.
At the conclusion of the court’s instructions, appellant requested the court to give the instructions which it asked, except its instruction numbered 3, which last was not asked until after the opening argument had beeu made for appellee. The court refused to give these instructions, but granted permission to appellant to reduce them to writing. In the meantime, a controversy arose over a statement said to have been made in the opening argument in appellee’s behalf, to the effect that the offer of compromise on the part of appellant was an admission of its liability. This argument is not reported iñ the transcript, but the record does show that this controversy arose, and the instruction was asked as soon as it arose and was, therefore, asked in apt time.
(8) Under the circumstances we think appellant was entitled to have the jury specifically told that they should not consider the offer of compromise as an admission of liability. The case was a close one on the facts and, in the absence of specific directions to ignore the evidence in regard to the settlement, in determining the question of liability, tbat evidence may bave turned the scale in appellee’s favor.
(9) We think no error was committed, in refusing appellant’s fourth instruction. There is nothing about these train records to import verity. Under some circumstances their recital might furnish evidence of a very satisfactory character, but the court can not say as a matter of law that these records were correctly kept, and that no agent has been mistaken in his report of the movement of any train, nor that the records have been properly kept so that all -opportunity for mistakes, -or possible collusion, have been eliminated. -Such evidence should be weighed by the jury like -other evidence and given such weight as it appears entitled to have.
For the error in refusing appellant’s third instruction, £he judgment will be reversed and the cause remanded.