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The witness Howard Bailey testified by this sign, and Tomme ran the board through deposition, substantially, that he was work- the machine to clean off the feedplate; that ing for appellant at the Onalaska plant on the he knew what was to be done and went to day that Tomme was hurt; that at the time clean off the bedplate. And further: of the injury he (witness) was standing by "Before I began to clean it I raised the feed his edger, not working, about 15. or 20 feet lever for the purpose of stopping the feed gear ,

of the machine. It did stop it. Then I started from where Sid Tomme was; that he saw

to clean off the bedplate of the machine, and Tomme raise the feed lever and walk around did clean it off.

did clean it off. The instrument I used to by the machine, and paid no more attention clean it off was a stick about that long (indiuntil he heard Tomme holler; that he then cating)-that stick I used was the usual in

strument used for that purpose. There was looked that way and saw that Tomme was nothing unusual in the way I cleaned off the caught in the machine; that witness then bedplate, as I cleaned it in the usual way.” went to Tomme, and threw off the feed lever,

He further testified, substantially, that and when he attempted to help Tomme get just as he got the feed bed cleaned off the feed his arm out the lever did not stand, but clos- lever caught his hand or the hand flap that ed and caught his arm again; that when the he had on at the time; that he was using feed lever thus closed one Eugene Goyens his right hand at the time, being right-handheld the lever until they shut the whole ed; that when the feed lever fell and the planing mill down, and then they got Tomme feed gear started going it caught his hand out. And further:

and pulled it down through the cogs and “After Tomme was hurt I first threw off the ground it off right at the wrist, and knocked feed lever myself and it failed to stand. Eugene Goyens then threw it off and held it until the a big hole in his arm, taking out parts of machinery stopped running. It is not a fact the bone. that the feed lever of this machine was in One of appellant's witnesses, R. A. Groves, good working order and continued to be operat- also testified, on cross-examination, substaned in the same condition as long as I remained at Onalaska. It was not in good working tially that after the feed lever is raised, if it order at the time of the accident. I have seen is in proper condition and repair, it has the them working on this machine after the acci- effect to stop the feed gear; that if it stops dent, but I don't know whether they fixed the the feed gear it is in proper condition, but

, ; feed lever or not." The witness Goyens also testified by dep- stand and stop the feed gear, it is not in

that if when properly raised it does not osition, stating that he was in the employ

good condition. of the West Lumber Company, working in

And appellant's witness Jay Alford, also the planing mill, at the time Tomme was

on cross-examination testified, among other injured; that when he first saw Tomme after

things, as follows: the injury the machinery was running and

“This lever when you go to release the runthe feed lever was thrown on; that Howard ning gear, I raise the lever and that stops the Bailey threw off the feed lever in order to running gear. It slacks the belt and stops the stop the machinery, but the feed lever did gear, and when there is a splinter or some

thing on the bedplate, and I want to get it out, not stand; that it fell and started the ma- the proper thing to 'do would be to raise the chinery going again, and that witness raised feed lever before you commence getting it out. the feed lever a second time. And further: Yes, sir; that would be the proper thing to "I have had about ten years' experience oper

do." ating a planer.” Then to this question: "Were And further: a machine provided with lever, as in the in- "If the feed lever is in proper shape and restance where Mr. Tomme was injured, that in pair, if you raise that feed lever up sufficient throwing the lever to release does not the lever to stop that running gear, if it is properly repass beyond the center, and unless it is moved paired and in proper shape it will stand; it back from the center again it is impossible for will not fall of its own accord.” it to fall of its own accord ?” he answered: “I

And further: say it was supposed to pass beyond the center, but the bolt was loose and it would not stay, "If you raise that feed lever, and it stands but it would fall back of its own accord. The long enough to stop this machinery, the running lever of that machine would not stand, and it gear, then if it does fall on its own accord, was absolutely the fault of the lever that caus- then it is not in proper condition of repair and ed Mr. Tomme to get caught in the machinery." could not be; if you raise it up there, and it

stays there and then falls back, it could not be The appellee Sid Tomme testified, among in proper condition of repair.' other things, substantially that he was

And appellant's witness C. Stokes testiabout 18 years of age at the time of the fied, substantially, that he had been planing injury, and was at the time feeding this mill foreman for appellant at Onalaska for planing machine No. 8; that as feeder of nearly six years, and had worked at the mill the machine it was his duty, when chips or there for about twelve years. On cross-exsplinters collected on the feed bed, to clean amination he testified, in answer to the questhem off; that on this particular occasion at tion whether he ever fixed any part of this the time of the accident he was cleaning off particular machine, or had known it to be the bedplate of the machine before the grad-fixed, in the six years he had been there er (the man who grades the lumber) had that is, any of the screws or bolts pertaining motioned to him to run the board out of the to same as follows: machine; that the grader had a certain sign

"Well, they might have been tightened up; that he gave Tomme; that the grader gave there were no new ones put in so far as I know.

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I do not know how that lever got broken at the whether the finding of the jury to the effect time it was broken. That part of the feed lever that appellant was guilty of negligence in not was broken when I went there."

having the metallic cogs of this machine And further to this question:

hooded, as claimed by appellees, or whether "After you patched it up, would it still be appellant was guilty of negligence in any loose? Was it still loose after you patched it?" | other respect, as claimed by appellees; be--he answered:

cause if appellant was guilty of negligence in "I say it would naturally wear and work furnishing a defective machine as respects loose. There was a loose motion and looseness. the lever mentioned or in not keeping the It could be raised and lowered, and when it was raised they had to tie it in order to keep it same in proper repair, as claimed by appelstanding. In order to be sure it would not fall, lees and as found by the jury, and if that negas to whether it would fall sometimes if they ligence became and was a proximate cause did not tie it, well that boy complained about of Sid Tomme's injury, then that of itself it falling, but it never fell with me. As to whether I know from repairs made by me in would be sufficient to warrant the judgment my position it would fall sometimes if it was in this case, and to compel its affirmance, un

, . reason it would fall was because of the loose less appellant's contention that Sid Tomme

was guilty of contributory negligence should ness of it."

be sustained, or unless its contention that the Before concluding on this point, we should state that Sid Tomme himself testified that judgment should be reversed on account of

misconduct of the jury trying the case should he had been working at and near this partic

be sustained. ular machine for a period of about three

[2-4] We therefore next consider appellant's months immediately prior to his injury,

nineteenth and twenty-third assignments of and that during that period of time he had perhaps spent as much as five or six weeks. error, which are as follows:

, off and on, operating this particular machine,

Nineteenth assignment: “Because the verdict and that during this period of time had not the evidence, in this: That the undisputed ev

of the jury is contrary to and unsupported by observed the lever on this particular machine idence shows that the plaintiff Sid Tomme was to fail to stand when raised by him, and that guilty of contributory negligence that alone he had operated this lever, throwing it on brought about his injúry, and that greatly re

duced and diminished his damages (if any); and and off, as frequently perhaps as much as that by reason thereof plaintiff was not entwelve or fifteen times daily. This particular titled to recover any sum whatever, in this: testimony on the part of Sid Tomme is claim- (1) Because it is undisputed that the plaintiff ed by appellant to be conclusive in support of Sid Tomme failed to stop the entire planing

machine at which he was working before undertheir contention that the lever of the machine taking to remove the splinter or obstruction in question was in proper repair and condi- from the bedplate thereof, and that his failing to tion for at least a period of three months do so was contributory negligence. (2) Because prior to the injury and up to the very time of that the plaintiff Sid Tomme failed to throw

the great preponderance of the evidence shows the injury; and that, therefore, the jury's the feed lever of said planing machine before finding to the effect that this lever was de- undertaking to remove the splinter or obstrucfective and out of repair, and that appellant tion from the bedplate thereof, or that if he did was guilty of negligence in permitting it to safe and proper manner, thereby causing the

throw the same, that he did not throw it in a be so, was not supported by the evidence, and same to immediately fall again, and that his failthat this court should so hold. After examin-ure to so throw said feed lever was contributory ing the entire evidence, as reflected by the negligence on his part. (3) Because the great

preponderance of the evidence shows that if the record in this case, much of which we have said Sid Tomme did throw said feed lever of above quoted, we have concluded that the evi- said planing machine before undertaking to redence as a whole warranted the jury's finding move the obstruction from the bedplate, that that this lever was defective and out of re-lhe again started the feed gear of said machine,

by his own acts of negligence and carelessness pair, as claimed by appellees, and that this and thereby caused his own injury, and that his condition became and was a proximate cause act in so doing was contributory negligence. of the injury to the appellee Sid Tomme. (4) Because the undisputed evidence shows that This was clearly found, expressly, by the jury, jured he was wearing upon his hand that was

at the time the plaintiff Sid Tomme was inand while, as we stated in the beginning of injured a long flap, 7 inches wide by 10 inches this opinion, the evidence on the part of ap- in length, made of coarse, stiff material, which pellant, if believed and accepted in its en-down from the hạnd some 8 or 10 inches, and

flap, when worn upon the hand, would hang tirety by the jury, would be sufficient to show it being undisputed that the wearing of such that the lever in question was in proper re- flap around the planing machine when any part pair at the time of the injury yet we also of same was in motion was negligence, and must conclude following the well-established was likely to result in injury to the party 'wearmust conclude following the well-established ing same. (5) Because the undisputed evidence rule in this state, that the evidence as a whole shows that at the time the plaintiff Sid Tomme was sufficient to warrant the finding of the was injured he was wearing upon his hand a jury, convicting appellant of negligence on and that with such flap upon his hand he placed

long, wide flap, made of coarse, stiff material, this point, and also to warrant the finding of his hand into a part of the planing machine the jury that this negligence proximately where he was not required to place same, and caused Sid Tomme's injury.

placed himself in a dangerous position with

reference to said planing machine, and that by If we are correct in our conclusion thus far reason of placing his hand in such place, and became entangled in the cogs of said machine, hand flaps. It is true some of them say that and his hand thereby was drawn into said it was dangerous, for the reason that a hand machine and injured; that by reason of the construction of said machine, and the location flap might become caught or entangled in the of the cogs and pinions within the interior there machine, and thereby cause injury to the of, it was practically impossible for the said operator; but others claimed there was no Sid Tomme to have had his hand caught there- danger whatever when the machine was in in and injured, except for said flap being on his hand; and the evidence being undisputed that proper condition and properly operated, and, said flap was the first thing to be caught in said upon the whole facts on this point, the jury running gear, and but that for said flap being determined that Sid Tomme was not guilty on his hand the said Sid Tomme could not and of contributory negligence because he was would not have been injured. (6) Because the

. mee great preponderance of the evidence shows that wearing this hand flap on his hand at the the negligent and careless acts of the plaintiff time of his injury. It is not claimed that Sid Tomme in wearing said flap, on his hand, there was any rule or regulation by appeland in placing his hand into said machine at lant which prohibited- the wearing of these the time and place he did, and his failure to stop said planing machine, and his careless and hand flaps, and it cannot be held as a matter negligent acts in failing to throw the feed gear of law that Tomme was guilty of negligence of said machine, or, if he did throw the same, simply because he was wearing one of these his negligent acts in starting the same again, were the sole cause

of his injury, and but for hand flaps at the time in question. It was the same he would not have been injured; that, also shown, especially by Sid Tomme himself, therefore, the said Sid Tomme being injured sole that he was proceeding, in the usual and cusly because of his own negligence, the damages tomary and proper manner, to clean the mahe sustained, if any, were due solely to his own negligence, and should have been reduced chine in question at the time of his injury, accordingly."

and that he properly threw or placed the Twenty-third assignment: "Because the find- lever on this machine and brought it to a ing of the jury to special issue No. 5, submitted standstill before attempting to proceed with at the request of the defendant, is contrary to and unsupported by the testimony, in this: Be- the cleaning of the machine, but that notcause the uncontradicted testimony shows that withstanding the lever fell while he was in if said feed lever had been thrown in a careful the act of cleaning the machine, and that and proper manner, then the same could not fall again, unless acted upon by some outside thereby the machinery was again started and force, and the evidence further showing that the he was caught and injured. The matters plaintiff Sid Tomme placed himself in such posi- here complained of were clearly issues of tion that it becomes certain that his acts alone fact made by the evidence, and it is not the same was started.”

province of this court to disturb the verdict Issue No. 5, mentioned in this assignment, of the jury where, as we here hold, there is was as follows:

evidence in the record reasonably sufficient If you have answered that plaintiff Sid to support the jury's finding. . Tomme threw the feed lever of said machine be- It follows from what we have said that fore undertaking to remove the splinter or ob- the judgment of the trial court in this case struction from the bedplate, then did the said must be affirmed, unless it should be reversSid Tomme do anything by which the feed gear ed on appellant's first assignment of error, of said machine was started again?”

. That assignment complains of the action of to which the jury answered, "No."

Because of the length to which we have the trial court in refusing to grant a new already carried this opinion, we must de trial on the ground that the jury trying this

case was guilty of misconduct. This miscline to set out or undertake to discuss in detail the evidence found in this record rel- conduct was alleged in the motion to be that, ative to appellant's contentions as made by after the jury retired to consider of its ver

the these assignments. The jury found, express- dict, they discussed and considered

. ly, in answer to proper question submitted amount of the fee that appellees would have by the court, that appellee Sid Tomme was

to pay their attorneys for their services in not guilty of negligence or contributory neg. in substance, that it was said by several of

this case, and it was alleged in the motion, ligence in any respect as pleaded by appellant and as claimed in these assignments, the jurors, while in retirement and before and, after a very careful study and consid- | their verdict was reached, that appellees eration of the evidence bearing upon these would perhaps have to pay their attorneys a contentions, we have concluded that the considerable portion of whatever amount same raised issues of fact which were pe- they might recover, some of them stating culiarly for the consideration and determina- perhaps as much as one-half would have to tion of the jury, and that such evidence was be paid to the attorneys, and it was claimed sufficient to warrant and sustain the finding in the motion that the jury, on account of of the jury acquitting appellee Sid Tomme this discussion, were influenced, or at least of negligence or contributory negligence, as some of them were influenced, to render a contended for by appellant. There is in the verdict in favor of appellees for a larger record testimony of several witnesses which, amount than they would otherwise have if believed by the jury, was sufficient to rendered had not such improper discussion show that it was usual and customary for taken place in the jury room. operators of the machines such as that which [5, 6] It appears from the record that this injured Sid Tomme to wear what is called ground of the motion was thoroughly con

sidered by the trial court, and all the mem- , ever it appears with reasonable certainty bers of the jury seem to have testified on that a jury or any member of it was influencthis point. It does appear, without dispute ed by any improper conduct in the jury room in the evidence, that there was mention made to render a larger verdict against a defendby perhaps several members of the jury ant than would have been rendered had not of the fact that appellees would perhaps such improper conduct occurred, then it have to pay to their attorneys a portion of would be the duty of the trial court to set whatever amount they might recover in this aside the jury's verdict and grant a new case; but that of itself would not be suffi- trial, and that, if the court in such case cient to warrant this court in reversing the should refuse to do so, it would be an abuse judgment, unless this court can say from the of the court's discretion, and it would berecord that the trial court abused its discre- come the duty of this court to reverse the tion in denying a new trial on this ground; judgment and remand the cause. and, in determining whether the trial court

This court, also, had occasion very recentabused its discretion, it becomes necessary ly to pass upon the same question, in the for this court to determine whether it clear-case of Louisiana & Western Ry. Co. v. Frank ly appears from the record that the discus-White, 202 S. W. 794 (not yet officially resion of the question of attorneys' fees by ported), in which this court was compelled the jury had the effect to influence the jury to reverse the judgment of the trial court or any member thereof in finding in favor because it refused to grant a new trial. But of appellees for a greater sum than would in that case also the testimony was absoluteotherwise have been found had not such dis-ly without dispute, and, indeed, the trial cussion taken place. Upon this point we have court found as a fact that one of the jurors reached the conclusion that the evidence of was influenced by reason of the improper these jurors, as heard on the motion for new conduct in the jury room to render a verdict trial, clearly made an issue of fact, and left for $5,000 more than he would have renderit for the determination of the trial court ased but for such conduct, and notwithstandto whether or not the discussion of attor- ing this fact the trial judge declined to grant ney's fees caused the jury or any member of a new trial. it to render a larger verdict against appel- [7] We to no extent recede from the views lant than would have otherwise been render-expressed in those cases, but again announce ed. The briefs of counsel for both sides the rule, as we understand it, that wherever touching this matter contain copious state- it is made to appear with reasonable certainments of the evidence, and, in our opinion, ty on motion for new trial that a jury has this evidence was suficient to warrant the been guilty of misconduct, and that such mistrial court in finding that the discussion of conduct had the effect to cause the jury, or attorney's fees did not have the effect or any one of them, to render a larger verdict cause any juror to render a larger verdict against a defendant than would have been against appellant than would have been ren- rendered but for such misconduct, it would dered had not such discussion taken place. be the plain duty of the trial court to set The trial court filed no findings of fact such verdict aside and grant a new trial, upon the motion, but we must presume that and that, if the trial court should fail to do the trial judge concluded that no member of this, it would become the plain duty of the the jury was influenced on account of this appellate court to reverse the trial court's discussion to render a larger verdict than judgment and remand the cause. he would otherwise have done; and the ev

[8] The frequency with which questions of idence being sufficient to warrant such con- this kind come before the appellate courts of clusion on the part of the trial court, and this state is rather remarkable, and, indee.l. making it clearly a question of fact for its it is regrettable that such conduct on the determination, this court would not be au- part of the juries so frequently occurs; but thorized to disturb the finding of the trial it must be remembered that the trial court's court on that point.

judgment in cases of this kind can only be We notice that appellant cites, in support reversed where it is manifest to the appelof its contention that the judgment should be late court that the trial court abused its disreversed on account of this misconduct of cretion in failing to grant a new trial. We the jury, the case of Ry. Co. v. Roberts, 196 now take occasion to suggest that it would be S. W. 1004, which was decided by this court, well for the trial courts to adopt a liberal and in which the writer prepared the opin- policy in granting new trials where misconion. In that case the evidence was absolute duct of this character is clearly shown to ly without dispute, to the effect that at least have taken place in the jury room, and not one of the jurors was influenced to render hold the defendant in such cases to a too a larger verdict against the appellant, on ac- strict showing of injury, because it is somecount of the improper discussion of the ques- times a hard matter to get jurors or any of tion of attorney's fees, than he would have them to absolutely admit that they were inrendered had not such discussion taken place. fluenced to do a thing contrarily inconsistent In that case this court expressed its views of with their duties, and contrary to the law as

believe that it would be a sound and just 5. CARRIERS Om 223-LIVE STOCK SHIPMENTpolicy on the part of trial judges to grant

IMPROPER BEDDING-ESTOPPEL. new trials to defendants in cases of this and fully aware of the extent and condition of

That a shipper of live stock, being present character, where conduct of this character the bedding then in the cars, accepted them as has been shown clearly to have taken place, bedded, and so is estopped to claim improper without requiring such defendants to show bedding as cause of injury, is proper matter of

defense. conclusively that they were injured thereby. 1 6. TRIAL @ww203(3) – INSTRUCTIONS_SUBMISFrom what we have said in this connection,

SION OF DEFENSE. we would not be understood as intimating Defendant is entitled to have affirmatively that the trial court in this case was not clear- submitted a proper matter of defense raised ly justified in overruling appellant's motion by the pleadings and evidence. on the ground of the jury's misconduct in Error from Tom Green County Court; this case, because this court also is of the Oscar Frink, Judge. opinion, from the evidence in the record, that Action by Bob Weatherby against the the misconduct of the jury in this case did Kansas City, Mexico & Orient Railway Comnot have the effect to cause.any member of pany of Texas. Judgment for plaintiff, and the jury to render a larger verdict than he defendant brings error. Reversed and rewould otherwise have done, but we merely manded for new trial. make these remarks in the way of a sugges- H. S. Garrett and C. E. Mays, Jr., both of tion to the trial courts, because frequently San Angelo, for plaintiff in error. Blanks, and usually those courts are in a better po- Collins & Jackson, of San Angelo, for defendsition to protect the interests of litigants in ant in error. matters of this kind than the appellate courts of this state.

HARPER, C. J. Weatherby brought this Believing that our conclusions regarding suit against the defendant railway company appellant's second, nineteenth, and twenty- for damages to a shipment of sheep, occathird assignments of error have the effect to sioned, he alleged (the only ground of neglidispose of this appeal, and that other assign- gence submitted), by reason of improper and ments become immaterial and could not have insufficient bedding of the cars furnished. the effect to reverse the judgment in this The answer is general denial; that the cars case, and also believing that the first assign- were properly bedded, and the sheep transment, complaining of the misconduct of the ported without unreasonable delay or rough jury, cannot be sustained, all assignments of handling; that the sheep were not physically error are overruled, and the judgment of the fit for shipment on account of bad weather,

insufficient feed, were diseased, and had trial court will be affirmed, and it is so ordered.

been recently dipped, etc.; that by reason of having received the carload rating plain

tiff assumed the responsibility of improper KANSAS CITY, M. & 0. RY. CO. OF TEXAS to load the sheep, and that they were crowd

or over loading; that plaintiff did undertake V. WEATHERBY. (No. 846.)

ed and jammed, etc., into the cars; that if (Court of Civil Appeals of Texas. El Paso. the cars were insufficiently bedded, plaintiff May 9, 1918.)

was present, examined the bedding, and ex1. TRIAL O352(5)--SPECIAL ISSUES.

pressed himself satisfied, is therefore estopA special issue should not contain several ped, etc. The cause was submitted to jury distinct matters.

upon special issues and upon their verdict 2. APPEAL AND ERROR O 882(14) INVITED judgment was rendered for $550, from which ERROR.

this appeal. Submitting a special issue containing several distinct matters, being at request of ap

Assignments 1 to 5, inclusive, urge that the pellant, is not ground for reversal.

judgment should have been for defendant 3. CARRIERS en 216-LIVE STOCK SHIPMENT-- upon the answers to special issues. On –

The PROPER CARS.

following are the special issues submitted, While recovery cannot be had of carrier for and the answers of the jury thereto: injuries to sheep in transportation which were the proximate result of the weakened condi

No. 1. Was it necessary, in the exercise of tion in which they were tendered for carriage, ordinary care for the reasonably safe transporyet the carrier, having received them in that tation of the plaintiff's sheep, to bed the cars in condition for shipment, was bound to exercise which said sheep were shipped? Yes. ordinary care in furnishing proper cars, includ

No. 2. Did the defendant, its servants, or eming proper bedding, for their transportation; ployés suficiently and in a reasonably proper and if guilty of negligence in that respect, manner. bed the

cars in which plaintiff's sheep which proximately resulted in injury to them,

were shipped ? No. is liable for the consequent damages.

No. 3. If you answer special issue No. 2 in

the negative, then was such failure, if any, to 4. EVIDENCE 472(4) OPINION PROPER sufficiently and in a reasonably proper manner BEDDING OF CARS.

bed said cars negligence on the part of defendQualified witnesses may, in action against ant? Yes. carrier for injury to shipment of sheep from No. 4. Were any of plaintiff's sheep killed or negligent bedding of cars, testify they were injured as the direct and proximate result of properly bedded ; this not being an invasion of such negligence, if any, on the part of defendprovince of jury.

ant, its servants, or employés ? Yes.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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