# St. Louis Southwestern Railway Co. v. Mulkey

> Supreme Court of Arkansas · July 10, 1911 · 100 Ark. 71

URL: https://www.frixlaw.com/law-library/cases/6548575

## Case

- **Full name:** St. Louis Southwestern Railway Company v. Mulkey
- **Court:** Supreme Court of Arkansas
- **Decided:** July 10, 1911
- **Citations:** 100 Ark. 71; 139 S.W. 643; 1911 Ark. LEXIS 324
- **Precedential status:** Published
- **Opinion:** Concurrence by McCulloch
- **Judges:** Kirby, McCulloch
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6548575

## Opinion text

McCulloch, C. J., (concurring). It is established by undisputed evidence that the defendant’s investiture of title to the strip of land in controversy by adverse possession is complete, and I concur in the judgment on that ground alone. I do not believe it is sound to say that the plaintiff, by asking for a peremptory instruction in its own favor, without accompanying the request with one for other instructions, waived its objection to defendant’s request for a peremptory instruction or waived its right to have disputed questions of fact submitted to the jury. It is not correct, according to my view, to hold that parties waive the right of trial by jury by separately asking the court for a peremptory instruction. That is not equivalent to joining in a request to the court to decide the issues of fact, instead of submitting them to the jury.
The question of legal sufficiency of evidence is a question of law which must be decided by the court. Catlett v. Railway Co., 57 Ark. 461 ; St. Louis, I. M. & S. Ry. Co. v. Coleman, 97 Ark, 438. A party has the right to test that question by obtaining a ruling of the court thereon, without waiving his right to go to the jury on disputed questions of fact in the event that the court rules against his contention. He does not, by making a fruitless effort to obtain a peremptory instruction in his own favor, waive the right to object to a peremptory instruction in favor of his adversary, nor does he thereby agree that the court may take the case away from the jury and decide the issues of fact.
The contrary view, as announced by the majority, may be consistent with the practice in other jurisdictions where the combs laid down this rule, but it is inconsistent with the practice which has always prevailed here, and I think it is wrong.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6548575. Public record. Not legal advice.