jurisdiction triáis.11^
(after stating the facts.) The first\ question presented is whether, in a case, where there has been a trial and judgment at law, and the right of appeal has been cut off by the death of the presiding judge before signing the bill of exceptions, a court of equity has power to grant relief against such a judgment, however unjust and oppressive it may be. The practice in such cases is not uniform in the different states of the Union. In some of them it seems to be held that there is no relief. Davis v. President of Menasha Village, 20 Wis. 42. In other states, .the appellate courts grant a new trial as a matter of right, without regard to the merits of the controversy, where a party has, by the death of the presiding judge, lost the power^/ to file a bill of exceptions. State v. Weiskittle, 61 Md. 49; Wright v. Judge of Superior Court, 41 Mich. 726; Commissioners v. Steamship Co. 98 N. C. 163. The exact point has never been before this court, though in one case it was said that, “courts of chaneery are competent to relieve against any hardships arising from accident, or mistake, or fraud, if from any such cause the bill could not be presented in the time allowed.” Carroll v. Pryor, 38 Ark. 283. And the power of courts of equity to grant relief against fraud, accident or mistake has always been recognized. In the case of Leigh v. Armor, 35 Ark. 123, the court said: “It is well settled that when a judgment is obtained in a court of law by fraud, accident or mistake, unmixed with negligence on the part of the party against whom it is rendered, a court of equity has jurisdiction, on a showing of a meritorious defense or cause of action, to compel the party obtaining the judgment to submit to a new trial. But it is agreed that this power should be exercised with great caution, and the application of the' doctrine is generally restricted, and is confined to cases which present peculiar circumstances, under the maxim that there must be an end of litigation.” In that case it was held that when a judge of the circuit court was prevented by sudden sickness from disposing of a motion for new trial during the term at which the judgment was rendered, the party filing the motion might, upon showing that he has a meritorious defense or cause of action, and that he has been guilty of no negligence, obtain relief in a court of equity. The reason given was that the party had no remedy at law. The doctrine of this case has been several times approved. Vallentine v. Holland, 40 Ark. 338; Harkey v. Tillman, Ib. 551; Johnson v. Branch, 48 Ark. 535; State v. Hill, 50 Ark. 458; Whitehill v. Butler, 51 Ark. 341; Jackson v. Woodruff, 57 Ark. 599.
The circuit court in Leigh v. Armor had not passed upon the motion for a new trial. In this case the motion for a new trial was presented to and determined by the circuit court, and the party lost his right of appeal by the death of the circuit judge before signing the bill of exceptions. But, while the facts are different, the principle seems to us the same, and, after considering the matter, we have concluded that when a party who is himself free from fault, and against whom an unjust and inequitable judgment has been rendered, has lost his right of appeal by unavoidable accident; a court of equity in this state has the power to grant relief. Carroll v. Pryor, 38 Ark. 283; Oliver v. Pray, 19 Am. Dec. 595, and note ; Black on Judg. 1 vol. 356; Freeman on Judg. 2 vol. 484-485. While the enlarged powers of law courts, under modern procedure, to grant new trials after the expiration of the term has dispensed with the frequent exercise of this ancient jurisdiction of courts of equity, yet in this state it still exists, to be used in peculiar cases where the party is without remedy at law. Leigh v. Armor, 35 Ark. 126; Jacks v. Adair, 33 Ark. 161.
In assuming jurisdiction in such cases, courts of equity do not undertake to exercise supervisory or appellate power over the circuit courts. They have no right to interfere in any way with the judgments or other proceedings of a court at law. They assume only the right to act upon the parties to the suits a,t law. Pelham v. Moreland, 11 Ark. 442; Yancey v. Downer, 15 Am. Dec. 38; Pomeroy’s Equity, vol. 3, sec. 136 ; Black on Judgments, 1 vol. 356.
When a case of hardship in the judgment of a court at law is alleged, against which the party has lost his remedy at law by unavoidable accident, fraud, or mistake, a court of equity, though proceeding with great caution, will inquire into the facts, and, if deemed proper, will compel the successful party to submit to a new trial at law, or, in default thereof, will restrain him by. injunction. But, as has been frequently said, a court of equity will not interfere in such cases, unless “justice imperatively demands it.” “It must clearly appear that it would be contrary to equity and good conscience to allow the judgment to be enforced, else it declines to impose terms upon the prevailing party.” Whitehill v. Butler, 51 Ark. 343; Johnson v. Brande, 48 Ark. 535; Jackson v. Woodruff, 57 ib. 599.
iaabmty of master for ™“íOÍser'
We will now consider whether the case made here ' is one calling for the interference of a court of equity. John Franklin, an employee of the appellants, while working in their yards at Van Burén, was struck and killed by an engine owned by them and operated by their employees. H. B. Fitzhugh, the administrator of his estate, brought suit against appellants, alleging that the death of Franklin was occasioned by the negligence of appellants' and their employees while operating said engine. The answer of appellants denied negligence, and set up contributory negligence, and, further, that the injury was occasioned by the act. of a fellow servant, for which they were not liable. The evidence at the trial showed that Franklin, at the time of the injury, was working in the yards of appellants at Van Burén. He was clearing under a switch rod, stooping over at his work, with his back towards a switch engine, which was approaching along the same track upon which he was working. Within eight or ten feet of him, on a different track, was another engine which, to use the language of the witness, was “popping off steam.” The noise of this escaping steam deadened the sound made by the approaching switch engine. The testimony of several witnesses show that Franklin’s position and actions indicated that he was unaware of the approach of the switch engine and of the danger that threatened him. So apparent was his danger, and the fact that he was ignorant of it, that several of these witnesses hallooed at him, but the noise of the steam from the other engine was so great that he did not hear. Both the engineer and fireman in charge of the switch engine testify that they saw Franklin as they approached the place where he was working. The engine was backing, but it had no cars attached, and the tank was wedge shaped, and offered no obstruction to the sight of the engineer until he came within a few feet of Franklin. He was in plain view for some distance before they reached him. They noticed that he was stooping over at work, his back to the engine, apparently unaware of its approach. When about forty yards from him, the fireman hallooed at him, and again endeavored to attract his attention when he was within twenty-five or thirty steps of him. The fireman testified that he did not signal the engineer, because the engineer saw Franklin as well as he did. Before reaching Franklin, the engineer applied the air brakes, and checked the speed of the engine, but when within seven or eight feet of him he released the brakes, and the engine rolled on, and Franklin was struck and killed. The engineer says that he saw Franklin step off the track before he released the brakes, but in this he is plainly mistaken. Franklin became aware of the approach of the engine, and endeavored to escape, but the engine struck either his leg or the handle of his shovel, and be was thrown on the track and killed. There was also evidence tending to show that no sufficient effort was made to stop the engine, and that the engineer was guilty of carelessness.
But it is said that Franklin was himself guilty of negligence. This may be true, yet the finding of the jury is justified on the ground that the employees of defendants in charge of the engine became aware of his danger in time to have avoided the injury by the use of ordinary care. It is well established that when a defendant, after having become aware of the plaintiff’s negligence, and the danger to which it exposes him, fails to exercise ordinary care in avoiding it, he is liable for the injury. St. L. I. M. & So. Ry. v. Wilkerson, 46 Ark. 523; St. L. I. M. & So. Ry. Co. v. Monday, 49 ib. 263; Whittaker’s Smith on Neg. 375; Thompson on Neg. 2 vol. 1157 ; Wharton on Neg. secs. 334 and 335 ; Sherman & Redfield on Neg. sec. 493.
It is further said that if the engineer was guilty of negligence causing the injury, it was the act of a fellow servant, for which defendants are not liable. But the evidence shows that on the trial at law the defendants expressly admitted that the deceased, John Franklin, and the engineer were not fellow servants. The bill of exceptions, which was agreed to be correct, and introduced as evidence by appellant, after setting out the evidence introduced by the plaintiff, proceeds as follows: “Defendants here admitted that the deceased, John Franklin, and the engineer and fireman were not fellow servants( and told plaintiff that they so admitted to the jury. The plaintiff then rested.” This is what is called in the books a “solemn admission,” made in the course of a judicial proceeding for the purpose of dispensing with evidence or argument touching the matter admitted. Having solemnly admitted on the trial that the deceased John Franklin and the engineer and fireman were not fellow servants, the defendant cannot now dispute it, or assume a position inconsistent with the admission. If the circuit court committed an error on that point, it was one invited by the defendants, and of which they cannot complain. 1 Greenleaf on Fv. 186; 1 Taylor on Fv. 676; Elliott’s Appellate Pro. sec. 630.
Our conclusion is that the facts of this case are not sufficient to warrant the interference of a court of equity, and the decree of the chancellor dismissing the complaint for the want of equity is affirmed.