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tion, when the defendant was operating only B private tramroad, nor did he charge the character of negligence by any pleadings.”
The rules of pleading in the justice's court are very liberally construed by the courts, as before set out, and We believe that the pleading Was Sufficient, under the amendment in the county court, to permit evidence that the horse was negligently killed by the defendant, and under the rules that govern the pleadings in the justice's court, and the rules which govern in cases which originate in the justice court and are on appeal in the county Court, the pleading in this case is sufficient to admit the testimony offered.
The record has been carefully examined in this Case, and We find no error in the action Of the trial court that Would lead us to the conclusion that We Should reverse the action of said court.
The assignments therefore are Overruled, and the case is in all things affirmed.
WEST LUMBER CO. V. TOMME et al. (No. 313.)
(Court of Civil Appeals of Texas. Beaumont.
1. MASTER AND SERVANT 3:278(5)—ACTIONEvIDENCE–NEGLIGENCE. In action by servant for injury from planing machine, evidence held to show defendant's negligence. 2. MASTER AND SERVANT ©->281(1)—ACTIONEVIDENCE—CONTRIBUTORY NEGLIGENCE. In action bv servant for injury from planing machine, evidence held not to show plaintiff was negligent. 3. MASTER AND SERVANT ©->289(28)—ACTION —QUESTION FOR JURY. In servant's action for injury from planing machine, it could not be held as a matter of law that plaintiff was negligent because he wore a hand flap when injured. 4. APPEAL AND ERROR G+1001(1)—REVIEWVERDICT. A verdict will not be disturbed on appeal where there is evidence reasonably sufficient to support it. 5. APPEAL AND ERROR &978(3)—DISCRETION —NEW TRIAL—MISCONDUCT OF JURORS. In a personal injury case, the fact that it appears without dispute in the evidence that there was mention made by several jurors of the fact that plaintiff would have to pay his attorneys a portion of any amount recovered is of itself insufficient to warrant reversal, unless it clearly appears from the record that the trial court abused its discretion in denying new trial therefor. 6. APPEAL AND ERROR &=933(4)-PRESUMPTION-DENIAL OF NEW TRIAL. Where trial court made no findings of fact in denying motion for new trial for misconduct of jurors in discussing amount plaintiff would have to pay his attorneys in case he recovered, it will be presumed that the trial judge concluded that the discussion did not influence the verdict, the evidence being sufficient to warrant such conclusion. 7. NEW TRIAL (3×44(1) - MISCONDUCT OF JURY. On its appearing with reasonable certainty on motion for new trial that the jury has been
guilty of misconduct affecting the amount of the verdict, new trial should be granted.
8. NEW TRIAL Q->44(3) - MISCONDUCT OF JURY. Trial courts should be liberal in granting new trial where misconduct of jury in discussing necessity of plaintiff's paying, from his Verdict, a share thereof to his attorney, is clearly shown to have taken place in the jury room, and should not hold defendant to a too strict showing of injury. Appeal from District Court, Polk County; L. B. HightOWer, Sr., Judge. Action by Sid Tomme and another against West Lumber Company. From judgment for plaintiffs, defendant appeals. Affirmed.
Feagin, German & Feagin, of Livingston, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Dean, Humphrey & Powell, of Huntsville, and J. L. Manry, of Livingston, for appelleeS.
HIGHTOWER, C. J. We find in appellant'S brief in this CaSe a full and fair Statement of the nature and result of this suit, which is admitted by appellees to be correct, and Which is aS follows:
This Suit was filed in the district court of Polk county on April 26, 1917, by J. H. Tomme for himself, and as next friend of his minor son, Sid Tomme, against the appellant, West Lumber Company, seeking to recover damages for injuries sustained by Sid Tomme alleged to have been caused by the defendant's negligence. The case was submitted to a jury On Special issues, and upon the findingS of the jury, in answer to these issues, judgment was rendered in favor of the plaintiff Sid Tomme for $10,000, and in favor of the plaintiff J. H. Tomme for $585. In proper time the defendant filed its motion for new trial, claiming that various errors were committed against it in the trial, and in addition set up misconduct on the part of the jury. This motion Was Overruled, and in proper time the appellant filed its supersedeas bond, and has brought the cause here for review. The appellee Sid Tomme was injured by What is known as a planing machine, and, in Order that this court might get a clear idea of this machine and the manner of its Operation, appellant has placed in the back of its brief a picture of this machine. By way of explanation, it is shown that the operator of the machine Stands at the front end, and shoves lumber along the bed or feed plate Of same, until the front end of the lumber passes between the feed rollers, and these rollers keep the lumber moving forward in the same direction, passing between rapidly moving knives, that dress it off to a smooth Surface. Said appellee's duty Was thus to feed the lumber into this machine. der to a clearer understanding of the issues in this case, the photograph Of the planing machine as found in appellant's brief will be shown in this opinion.
On the left side at the front of this machine is a lever indicated by the letter “H.” When the lever is in the position as ShOWn in the picture, the belt transmitting the power to the feed rollerS is SO tightened as that it will keep the feed rollers revolving. When this lever is advanced forward into nearly an upright position, the effect is to release the tension on the belt and stop the revolving of the feed rollers. This lever is referred to in the testimony of the various Witnesses as the feed lever. It appears that Sid Tomme was injured while extending his hand into the machine over the name plate “No. 1 MisSissippi,” his hand being drawn into cogs beneath the point of the arrow marked “C,” and about opposite the point beneath the name plate indicated by the letter “F.” The front part of the cog, which is supposed to have injured Tomme, is indicated by the arrow point marked With the letter “G.” . The plaintiffs alleged, substantially, that the defendant, West Lumber Company, was a corporation engaged in the sawmill business at Onalaska, Tex., and had been SO engaged for a number of years; that on the 17th day of May, 1915, plaintiff Sid Tomme was employed by the West Lumber Company in feeding One of its planing machines, and that among other things it was his duty to keep the feed plate or bed plate free and clear of shavings or other obstructions; that the planing machine was provided With a feed lever, by which the feed gear of the
same was controlled; that it was the duty
of defendant to provide and furnish a feed lever of the most approved design and pattern, and to keep the same in good condition and repair; and that defendant failed to furnish and keep such feed lever in repair, but negligently furnished an old feed lever, wholly insufficient for the purpose for which it was intended, and negligently failed to keep said feed lever in such condition of repair that When it Was thrown off in Order to Stop said machinery it would not stand, and thereby prevent said machinery from running While the feed plate Was being cleaned. Plaintiffs further alleged that it was the duty of the defendant to furnish a safe place for the said Sid Tomme to do his work, but that the defendant failed to furnish Such Safe place, by leaving uncovered and exposed several metallic cogs referred to, which they allege Should have been hooded Or COVered; that by reason of the negligence and failure of defendant to furnish a proper feed lever that Would control the feed gear Of Said machine, and by reason of the negligence of defendant to furnish a safe place for Sid Tomme to WOrk, he Was injured, and that such negligence was the proximate cause Of his injury; that by reason of the negligence of defendant as aforesaid Sid Tomme had his hand caught in the running gear Of the planing machine, and the same was badly
caused suffering and mental anguish. Plaintiffs alleged the damageS resulting to the Said Tomme as being $25,000; and they alleged the damages resulting to the plaintiff J. H. Tomme to be the Sum of $950 for loss of time and earnings, and the Sum of $250 for medical attention, etc., making the total damages claimed by J. H. Tomme $1,200. The defendant, West Lumber Company, answered by general denial, and by allegations that it at all times furnished the Said Sid Tomme With a Suitable feed lever and all modern equipment and appliances for the purpose of doing his work, and alleged that it was not necessary and that it was not required to cover the cogs at the place where Said Tomme's hand was caught; that it had used Ordinary care and caution in the Selection of its planing machine and feed lever, and Ordinary care to keep the same in proper repair; that it had also used proper care to furnish Sid Tomme a safe place in which to perform his work. The defendant further alleged that the injury to the said Sid Tomme was due solely to his Own negligence and carelessness by reason of his putting his hand into the running gear of the planing machine at a place where he was not required to put it without first stopping the running of the machine; that if Said Tomme did undertake to stop the running of the machine, then he negligently started it again, and that he was further guilty of negligence that was the sole cause of his injury by wearing On his hand a hand flap, and by placing his hand in the machinery with the flap thereon, at a place where he was not required to put his hand, and in doing so the flap was caught in the running gear of the machine and was thereby drawn into the COgS and WaS injured. Twenty-nine questions were submitted to the jury for their answers and verdict, and of this number twenty-eight questions were answered by the jury in favor of the plaintiffs. At the time of the accident in question the appellant was not a subscriber under the Employé's Compensation Act, which accounts for the filing of this suit in the district court of Polk county. It is stated in appellant's brief that the decision of this case and the facts developed on the trial center upon three main issues, and we think that this statement is correct; and these issues are as follows: First. Was the appellant, West Lumber Company, guilty of negligence in any of the particulars alleged that was a proximate cause of Sid Tomme's injury? Second. Was the appellee Sid Tomme guilty of contributory negligence that diminished the liability on the part of appellant in the way of damages for Such injury? Third. Was the injury to Sid Tomme due to his own Willful acts of negligence? Counsel for both SideS in this case have filed able and exhaustive briefs, and thereby clusion in the matter, and especially so by their full and complete statements in their Driefs of the evidence contained in this VOluminous record. We shall not undertake, however, to follow counsel on each specific aSSignment of error, there being 31 such assignments in appellant’s brief, but have concluded to dispose of the case by mentioning and discussing such of them as must control in the decision of this case. We shall first dispose of appellant's second assignment of error, which is as follows:
 “Because the verdict of the jury is contrary to and unsupported by the evidence in this: That the uncontradicted evidence shows that the defendant, West Lumber Company, had exercised ordinary care and caution in the selection of the planing machine at which plaintiff Sid Tomme was injured, in that it is shown that said machine was of a standard make, and was in common and ordinary use by planing mills in many parts of the country, and as a planing machine was modern and up to date for the purpose for which it was used, and there being no evidence whatever to show that defendant had failed to use ordinary care in the selection of said planing machine. And because the uncontradicted evidence in the case shows that at the time plaintiff Sid Tomme was injured, said planing machine was in good repair, and because it is undisputed that defendant, West Lumber Company, had used ordinary care and diligence to discover any and all defects (if any) in said machine, and to keep the same in good repair, and to make it suitable and safe for the work which it was required to do.”
Appellant's proposition following this a Ssignment assumes the facts therein stated to be true, and contends, therefore, that there was no liability established against appellant for the injury to the appellee Sid Tomme.
In keeping with the rules for briefing, appellant has, of course, followed this assignment and proposition by a statement of the evidence introduced on the trial, which is quite lengthy, and which appellant contends shows conclusively that appellant Was not guilty of any negligence which became a proximate cause of the injury to Sid Tomme in any of the particulars claimed by him; and Without discussing this eWidence in detail, which is claimed by appellant to Support its contention under this assignment, We might say that Such evidence Was Sufficient to show nonliability on the part of appellant for the injury Sustained Sid Tomme, if the same had been believed by the jury in its entirety and given effect; but we cannot admit that the evidence found in the record, as a Whole, conclusively showed that appellant was not guilty of negligence in any particular, as claimed by appellees, which became a proximate cause of the injury to Sid Tomme. The jury, of course, was not compelled or bound to believe and accept the evidence favorable to appellant On any issue of negligence charged, in disregard of appellees' evidence on the same point; and While We might dispose of the matter by making a brief summary of the evidence favorable to appellees in this connection, We have decided to set
Out at Some length the testimony favorable to appellees, from which we think the jury Was authorized to find liability against appellant in at least some of the particulars claimed by them.
A. S. Carlisle, for appellees, among other things, testified:
“I have worked for this sawmill plant at Onalaska, Texas. I first worked there seven years ago the 27th of this past March, and at that time Wm. Carlisle & Co. owned and operated the sawmill plant. Carlisle & Co. sold the plant to the West Lumber Company. I don’t know exactly how long since the West Lumber Company began to operate that plant there, but it has been some length of time; about three years, I suppose.”
“I began working there seven years ago this past March: I have worked there since that time. Carlisle & Co. was still operating the plant then. Now as to what kind of machinery it was then with reference to age, whether it was a new machine or old machine when I fed it seven years ago, well, I would call it an old machine seven years ago. I don’t know where Wm. Carlisle Co. got that machine, but it was an old machine there when I came there. I came from Arkansas, and I worked for Carlisle & Co. in Arkansas, I don’t know whether they shipped any of their planing machines from their plant in Arkansas to the plant at Onalaska, but I understand they did. This No. 8 machine (this was the number of the machine in question) was apparently an old machine when I went there seven years ago.”
“When I was working at this machine feeding it seven years ago I said it was an old machine then ; I had difficulty at that time about the feed lever falling when I would raise it. The feed lever would fall if I was not mighty particular with it or propped it up or tied it up. I am talking about No. 8 machine, and that is the same machine I was speaking of awhile ago. I will tell you what means I employed to keep that feed lever standing. I tied it up; I had a string when I was feeding the machine. There was a spring on the left-hand side of the frame of the machine to screw up the old crooked lumber, and to make crooked lumber go through the machine straight. There was a wheel there something like eight inches in diameter that had a handle on it, and I tied that String to that little Wheel When I raised my feed lever and had a loop in the string. That loop was not tied to the feed lever, but was tied to the little wheel. I would hang it over the feed lever. I put that string there and kept it there most of the time. If I had not done that I say the feed lever would fall down #imes when I raised it. It fell occasional y.”
“I said it was loose motion. The set screws were worn ; practically worn out. I was familiar then and since then with feed levers that are in good condition, and when they are in good condition they will stand. I did not keep up with this feed lever since I was there; that is to say, whether they ever repaired it or not. I just know it would fall back and I know it was an old machine at that time.”
R. A. Braeme, for appellees, after Stating that he Worked for both Wm. Carlisle & Co. and for the West Lumber Company, at Onalaska, testified as follows:
“When I first worked there and when I first saw that machine it was an old machine. As to whether I have recently seen that machine— well, I have been down there, but I did not pay
So much attention to it. It is the same machine that was there When I began work there in 1907. I have seen the machine since Sid Tomme was hurt, and I know it is the same machine that Was there in 1907.”
“When I fed it the last time it was not in good condition at that time. I mean that the feed lever was broke and had been repaired. When I would raise the feed lever and stop the running geer or feed gear it would not stand. If it had been in proper order it would have stood when I raised it to stop it. When I had to clean the feed bed I held or tied the feed lever while doing that. The trouble with the feed lever was that it was broke and the wide part of it was loose down there where it connected, where the idler on the feed belts reached in there. At that time there was loose motion there. You could work it and it would cut the threads out of the casting it was made out of. You would work it so much you would cut the threads.”
E. A. Tanner, for appellees, after stating that he lived near Onalaska, and that he had worked for the plant there for several years, beginning with Carlisle & Co., and continuing after West Lumber Company acquired it, and also after stating that he was working for the West Lumber Company in the planing mill at the time Said Tomme Was injured, further testified as follows:
“You asked me what was the condition of the feed lever then, and I say it had become work-it had not been tightened up, lost motion in the feed lever. The feed lever worked in a clutch, and this clutch had become worn, and the screws had become worn and could not be tightened up or had not been. As to my saying they could not, well, it could have been, if they had had the material to fix it with. The kind of material that would have been needed at the time it would have taken some longer set screws than they were using. The effect of that being loose was it would cause it to jar and fall. I have seen it fall, and it fell while I was feeding it. I would raise that feed lever for the purpose of stopping the gear of the machinery, and if it was in good condition when I raised it, it would stop the feed gear. If it was in good condition it would stand after it was stopped until it was pulled down again. When I fed that machine last, about a month before Sid Tomme was hurt, it would not always stand when it was raised. I fed it extra and I used a string to hold the lever up. The company furnished the string. The string was made of laced leather. I did not ask them for it, but it was laying on the end of the bench and I picked it up. I used it myself to keep from getting hurt. It caught my arm one time very slight. That string had been taken out of a belt, that had been used for lacing belts. The reason why I got that string to tie it up was to keep from getting hurt. I have been hurt in that machine. There is the scar on my arm (indicating) that happened when those cogs caught it and pinched it. I had raised the feed lever to stop it, and it stopped the machinery when I raised it, and when I put my arm through to take the litter off the face of the lumber to keep from injuring the manufacture of the lumber for a bill of some kind the feed lever fell. The jar of the mill caused it to fall. I jerked my arm back and it just pinched me. I happened to see it just as soon as it fell, and I jerked my arm back immediately and still got pinched. I told the helper, C. Stokes, about it. The helper's occupation there was to keep up the machinery and see about the lumber being manufactured. It was his duty to see that these machines were in proper condi
“I tied a string to the feed lever handle and put a nail in the end like that (indicating), and when I would raise the feed lever. I would fasten it in the framework of the machine to keep the feed lever from falling. After I got hurt I did that way. I did not pay any attention to the condition of this feed lever the day Sid Tomme was hurt. I saw it just a short While afterwards. It was in the same condition it was in when I fed it. The last time I saw the machine it had not been repaired. Up to the time he was hurt, when I saw it a few days afterwards, it had not been repaired. I told # Stokes how it fell and showed him how it urt me.”
And further: %
“If they had had longer set screws than they had so they could tighten them up it would have tightened the lever so that the weight on the feed lever would not have motion in it to overbalance the feed lever and cause it to drop back. I say it was loose, and that caused the loose motion, and that caused it to overbalance it and drop back. Just a jar either way it tilted it would be likely to fall that way. The power of the mill was there to jar it. The whole thing was in a quiver.”
John West, for the appellees, after testifying that he was Working for the West Lumber Company at the time Sid Tomme was injured, and that he WaS feeding machine No. 5 in the planing mill, and also that he had fed this particular machine which injured Tomme, before the injury, further testified:
“I know theré was a defect or trouble in the feed lever of that machine; it was worn bad. When I first went to feeding it I first noticed that it was worn bad. The holes in it where the set screws were worn, and the effect of that was that when you would raise the feed lever to stop the machine, being loose that way, it would cause it to drop around, and if it got too far it would drop back. That was because it was loose and would not stand. The jar of the machinery caused it to move around. The planer machine and the planing mill were running, which would cause the jarring of everything. The power came from the engine room, which was separate from the mill. It was a long time, five or six months, before Sid was hurt, when I first noticed that this feed lever was loose and that lost motion. I know it was still that way when he got hurt. I noticed it the next day after he was hurt. We were looking at it then, and it was still in that condition the next day. If that had been tightened up, the effect would have been that when the feed lever was raised to stop the machine it would have held itself up. Those planing machines that were tightened up, there, in the planing mill, none of the feed levers on them that I know of would fall when they were raised. The purpose for which you would raise that feed lever would be to stop the running gear of the machine.”
“I had known for five or six months that that feed lever was not in such a condition that it would stand. I discussed that with Mr. Stokes. I told him. I asked him why he did not fix it tight. He did not have screws sufficient to fix it with. Mr. Stokes' name is C. Stokes, and his business there was a helper. The helper would keep the machinery in repair, in running shape. I told him about this feed lever, and he said he did not have the proper screws to fix it with. That was before Sid Tomme was hurt. It was worn so bad it would take larger screws where they would have