I do not know how that lever got broken at the time it was broken. That part of the feed lever was broken when I went there."

And further to this question:

"After you patched it up, would it still be loose? Was it still loose after you patched it?"

-he answered:

"I say it would naturally wear and work loose. There was a loose motion and looseness. It could be raised and lowered, and when it was raised they had to tie it in order to keep it standing. In order to be sure it would not fall, as to whether it would fall sometimes if they did not tie it, well that boy complained about it falling, but it never fell with me. As to whether I know from repairs made by me in my position it would fall sometimes if it was not tied back-that one repair; yes, sir. The reason it would fall was because of the looseness of it."

Before concluding on this point, we should state that Sid Tomme himself testified that he had been working at and near this particular machine for a period of about three months immediately prior to his injury, and that during that period of time he had perhaps spent as much as five or six weeks,

whether the finding of the jury to the effect that appellant was guilty of negligence in not having the metallic cogs of this machine hooded, as claimed by appellees, or whether appellant was guilty of negligence in any other respect, as claimed by appellees; because if appellant was guilty of negligence in furnishing a defective machine as respects the lever mentioned or in not keeping the same in proper repair, as claimed by appellees and as found by the jury, and if that negligence became and was a proximate cause of Sid Tomme's injury, then that of itself would be sufficient to warrant the judgment in this case, and to compel its affirmance, unless appellant's contention that Sid Tomme was guilty of contributory negligence should be sustained, or unless its contention that the misconduct of the jury trying the case should judgment should be reversed on account of

be sustained.

[2-4] We therefore next consider appellant's nineteenth and twenty-third assignments of

error, which are as follows:

of the jury is contrary to and unsupported by Nineteenth assignment: "Because the verdict the evidence, in this: That the undisputed evidence shows that the plaintiff Sid Tomme was guilty of contributory negligence that alone brought about his injury, and that greatly reduced and diminished his damages (if any); and that by reason thereof plaintiff was not entitled to recover any sum whatever, in this: (1) Because it is undisputed that the plaintiff Sid Tomme failed to stop the entire planing machine at which he was working before undertaking to remove the splinter or obstruction from the bedplate thereof, and that his failing to do so was contributory negligence. (2) Because the great preponderance of the evidence shows that the plaintiff Sid Tomme failed to throw the feed lever of said planing machine before undertaking to remove the splinter or obstruction from the bedplate thereof, or that if he did throw the same, that he did not throw it in a safe and proper manner, thereby causing the same to immediately fall again, and that his failure to so throw said feed lever was contributory negligence on his part. (3) Because the great preponderance of the evidence shows that if the said Sid Tomme did throw said feed lever of said planing machine before undertaking to remove the obstruction from the bedplate, that he again started the feed gear of said machine, by his own acts of negligence and carelessness and thereby caused his own injury, and that his act in so doing was contributory negligence. (4) Because the undisputed evidence shows that at the time the plaintiff Sid Tomme was injured he was wearing upon his hand that was injured a long flap, 7 inches wide by 10 inches

off and on, operating this particular machine, and that during this period of time had not observed the lever on this particular machine to fail to stand when raised by him, and that he had operated this lever, throwing it on and off, as frequently perhaps as much as twelve or fifteen times daily. This particular testimony on the part of Sid Tomme is claimed by appellant to be conclusive in support of their contention that the lever of the machine in question was in proper repair and condition for at least a period of three months prior to the injury and up to the very time of the injury; and that, therefore, the jury's finding to the effect that this lever was defective and out of repair, and that appellant was guilty of negligence in permitting it to be so, was not supported by the evidence, and that this court should so hold. After examining the entire evidence, as reflected by the record in this case, much of which we have above quoted, we have concluded that the evidence as a whole warranted the jury's finding that this lever was defective and out of repair, as claimed by appellees, and that this condition became and was a proximate cause of the injury to the appellee Sid Tomme. This was clearly found, expressly, by the jury, and while, as we stated in the beginning of this opinion, the evidence on the part of ap-in length, made of coarse, stiff material, which pellant, if believed and accepted in its entirety by the jury, would be sufficient to show that the lever in question was in proper repair at the time of the injury yet we also must conclude following the well-established rule in this state, that the evidence as a whole was sufficient to warrant the finding of the jury, convicting appellant of negligence on this point, and also to warrant the finding of the jury that this negligence proximately caused Sid Tomme's injury.

If we are correct in our conclusion thus far

down from the hand some 8 or 10 inches, and flap, when worn upon the hand, would hang it being undisputed that the wearing of such flap around the planing machine when any part of same was in motion was negligence, and was likely to result in injury to the party wearing same. (5) Because the undisputed evidence shows that at the time the plaintiff Sid Tomme was injured he was wearing upon his hand a long, wide flap, made of coarse, stiff material, and that with such flap upon his hand he placed his hand into a part of the planing machine where he was not required to place same, and placed himself in a dangerous position with reference to said planing machine, and that by 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 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 the time and place he did, and his failure to lant which prohibited the wearing of these 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 he sustained, if any, were due solely to his tomary and proper manner, to clean the maown negligence, and should have been reduced chine in question at the time of his injury, accordingly." and that he properly threw or placed the lever on this machine and brought it to a standstill before attempting to proceed with the cleaning of the machine, but that notwithstanding the lever fell while he was in the act of cleaning the machine, and that thereby the machinery was again started and he was caught and injured. The matters here complained of were clearly issues of fact made by the evidence, and it is not the province of this court to disturb the verdict

Twenty-third assignment: "Because the finding of the jury to special issue No. 5, submitted at the request of the defendant, is contrary to and unsupported by the testimony, in this: Because the uncontradicted testimony shows that if said feed lever had been thrown in a careful and proper manner, then the same could not fall again, unless acted upon by some outside force, and the evidence further showing that the plaintiff Sid Tomme placed himself in such position that it becomes certain that his acts alone were what started said feed gear again, if the same was started."

Issue No. 5, mentioned in this assignment,

was as follows:

"If you have answered that plaintiff Sid Tomme threw the feed lever of said machine before undertaking to remove the splinter or obstruction from the bedplate, then did the said Sid Tomme do anything by which the feed gear of said machine was started again?" -to which the jury answered, "No."

Because of the length to which we have already carried this opinion, we must decline to set out or undertake to discuss in detail the evidence found in this record relative to appellant's contentions as made by these assignments. The jury found, expressly, in answer to proper question submitted by the court, that appellee Sid Tomme was not guilty of negligence or contributory negligence in any respect as pleaded by appellant and as claimed in these assignments, and, after a very careful study and consideration of the evidence bearing upon these contentions, we have concluded that the same raised issues of fact which were peculiarly for the consideration and determination of the jury, and that such evidence was sufficient to warrant and sustain the finding of the jury acquitting appellee Sid Tomme of negligence or contributory negligence, as contended for by appellant. There is in the record testimony of several witnesses which, if believed by the jury, was sufficient to show that it was usual and customary for operators of the machines such as that which injured Sid Tomme to wear what is called

of the jury where, as we here hold, there is evidence in the record reasonably sufficient to support the jury's finding.

It follows from what we have said that the judgment of the trial court in this case must be affirmed, unless it should be reversed on appellant's first assignment of error. That assignment complains of the action of the trial court in refusing to grant a new trial on the ground that the jury trying this conduct was alleged in the motion to be that, case was guilty of misconduct. This misconduct was alleged in the motion to be that, after the jury retired to consider of its verdict, they discussed and considered the amount of the fee that appellees would have to pay their attorneys for their services in in substance, that it was said by several of this case, and it was alleged in the motion, the jurors, while in retirement and before their verdict was reached, that appellees would perhaps have to pay their attorneys a considerable portion of whatever amount they might recover, some of them stating perhaps as much as one-half would have to be paid to the attorneys, and it was claimed in the motion that the jury, on account of this discussion, were influenced, or at least some of them were influenced, to render a verdict in favor of appellees for a larger amount than they would otherwise have rendered had not such improper discussion taken place in the jury room.

[5, 6] It appears from the record that this ground of the motion was thoroughly con

that a jury or any member of it was influenced by any improper conduct in the jury room to render a larger verdict against a defendant than would have been rendered had not such improper conduct occurred, then it would be the duty of the trial court to set aside the jury's verdict and grant a new trial, and that, if the court in such case should refuse to do so, it would be an abuse of the court's discretion, and it would become the duty of this court to reverse the judgment and remand the cause.

court found as a fact that one of the jurors was influenced by reason of the improper conduct in the jury room to render a verdict for $5,000 more than he would have rendered but for such conduct, and notwithstanding this fact the trial judge declined to grant a new trial.

sidered by the trial court, and all the mem-, ever it appears with reasonable certainty bers of the jury seem to have testified on this point. It does appear, without dispute in the evidence, that there was mention made by perhaps several members of the jury of the fact that appellees would perhaps have to pay to their attorneys a portion of whatever amount they might recover in this case; but that of itself would not be sufficient to warrant this court in reversing the judgment, unless this court can say from the record that the trial court abused its discretion in denying a new trial on this ground; 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 reached the conclusion that the evidence of these jurors, as heard on the motion for new trial, clearly made an issue of fact, and left it for the determination of the trial court as to whether or not the discussion of attorney's fees caused the jury or any member of it to render a larger verdict against appellant than would have otherwise been rendered. The briefs of counsel for both sides touching this matter contain copious statements of the evidence, and, in our opinion, this evidence was sufficient to warrant the trial court in finding that the discussion of attorney's fees did not have the effect or cause any juror to render a larger verdict against appellant than would have been rendered had not such discussion taken place. The trial court filed no findings of fact upon the motion, but we must presume that the trial judge concluded that no member of the jury was influenced on account of this discussion to render a larger verdict than he would otherwise have done; and the evidence being sufficient to warrant such conclusion on the part of the trial court, and making it clearly a question of fact for its determination, this court would not be authorized to disturb the finding of the trial court on that point.

We notice that appellant cites, in support of its contention that the judgment should be reversed on account of this misconduct of the jury, the case of Ry. Co. v. Roberts, 196 S. W. 1004, which was decided by this court, and in which the writer prepared the opinion. In that case the evidence was absolutely without dispute, to the effect that at least one of the jurors was influenced to render a larger verdict against the appellant, on account of the improper discussion of the question of attorney's fees, than he would have rendered had not such discussion taken place. In that case this court expressed its views of

[7] We to no extent recede from the views expressed in those cases, but again announce the rule, as we understand it, that wherever it is made to appear with reasonable certainty on motion for new trial that a jury has been guilty of misconduct, and that such misconduct had the effect to cause the jury, or any one of them, to render a larger verdict against a defendant than would have been rendered but for such misconduct, it would be the plain duty of the trial court to set such verdict aside and grant a new trial, and that, if the trial court should fail to do this, it would become the plain duty of the appellate court to reverse the trial court's judgment and remand the cause.

[8] The frequency with which questions of this kind come before the appellate courts of this state is rather remarkable, and, indeel, it is regrettable that such conduct on the part of the juries so frequently occurs; but it must be remembered that the trial court's judgment in cases of this kind can only be reversed where it is manifest to the appellate court that the trial court abused its discretion in failing to grant a new trial. We now take occasion to suggest that it would be well for the trial courts to adopt a liberal policy in granting new trials where misconduct of this character is clearly shown to have taken place in the jury room, and not hold the defendant in such cases to a too strict showing of injury, because it is sometimes a hard matter to get jurors or any of them to absolutely admit that they were influenced to do a thing contrarily inconsistent with their duties, and contrary to the law as

(Court of Civil Appeals of Texas. El Paso. the cars were insufficiently bedded, plaintiff

A special issue should not contain several ped, etc. The cause was submitted to jury distinct matters.

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