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of the defendant. This information was nec- 2. SAME-NEGLIGENCE-EVIDENCE. essary to enable defendant to properly pre

In the case of injury to a child at a railpare its defense, and, having been called for

road crossing, the only negligence charged be

ing failure of the persons in charge of the enby special exceptions and refused by the

gine to keep a proper lookout, and the employplaintiff, defendant was not required to offer ment by the company of incompetent men, a any proof to meet the indefinite and uncertain

charge that evidence of failure to give crossing

signals should not be considered for any purallegations of the petition, but could stand

pose should be given. upon its right to have the plaintiff state spe- 3. PERSONAL INJURIES-FUTURE SUFFERINGcifically what amount he was claiming under EVIDENCE. each of his allegations of damage.

The nature of the injuries presents the We think the remaining assignments of er

issue of probable future physical suffering, it

being shown that by the accident plaintiff lost ror are without merit. The testimony of the one leg, nearly to the knee, the great toe on plaintiff as to the time which it ordinarily

the other foot, and sustained a deep scalp took to transport a car of calves from Hal

wound, though at the trial all the hurts were

entirely healed. lettsville to New Orleans does not show that

[Ed. Note.-For cases in point, see vol. 15, he was speaking from hearsay. He testified Cent. Dig. Damages, § 236.) that he knew the time, and his further state- 4. SAME-INSTRUCTIONS-ASSUMPTION, ment that he never accompanied but one ship- The charge in an action for personal inment does not contradict his statement that juries that in case of a finding for plaintiff, he had personal knowledge from which he

the jury may consider the physical or mental

suffering he has suffered or may suffer, does could testify as to what was the length of not assume that plaintiff will inevitably have time ordinarily required to make the ship- future physical suffering from the injury. ment. He might have gained his knowledge

5. SAME-DOUBLE DAMAGES. from statements of defendant's agents, or in

Inability to pursue the course in life which

plaintiff might have pursued but for his inother ways than by actually accompanying juries falls within the category of diminished shipments. The clause in the contract of capacity to labor and earn inoney, so that an shipment by which the shipper agrees to re

instruction authorizing damages for both allows

the giving of double damages. lease the carrier from all liability for delay

6. SAME-ARGUMENT OF COUNSEL AMOUNT after delivery to its agent, or for delay in re

OF VERDICT. ceiving the shipment after it should be ten- Remarks of counsel in a personal injury dered to its agent, does not release the defend- case that if the jury give a verdict too small it

will not be raised, but that if they give one too ant from liability for delay caused by the

large the appellate court will correct it by cutnegligence of its own employés; and the ting it down, so that if they err they should word "agent," as used in this clause, clearly err on the side that can be corrected by the refers to the connecting line to which the in

appellate court, are improper. itial carrier contracted to deliver the ship- Appeal from District Court, Trinity Counment.

ty; J. M. Smither, Judge. Because of the error of the trial court in Action by Marvin A. Nesbit, by next refusing to sustain the exception to the peti-friend, against the Missouri, Kansas & Texas tion before discussed, the judgment is revers- Railway Company of Texas. Judgment for ed, and the cause remanded for a new trial plaintiff, and defendant appeals. Reversed. as between the plaintiff and the appellant.

T. S. Miller, Bean & Nelms, and Thomas & The judgment in favor of the San Antonio &

Rhea, for appellant. Lovejoy & Malevinsky, Aransas Pass Railway Company is not com: H. L. Robb, and Andrews, Ball & Streetman, plained of, and is therefore undisturbed. for appellee. Reversed and remanded.

GILL, J. On May 28, 1903, at Willard, in

Trinity Co., Tex., Marvin A. Nesbit, a boy MISSOURI, K. & T. RY. CO. OF TEXAS about four years of age, was struck and inV. NESBIT.

jured by an engine of appellant pulling a (Court of Civil Appeals of Texas. June 27, passenger train, at a public road crossing, 1905.)

and to recover damages therefor this suit 1. RAILROADS-INJURY TO CHILD AT CROSS- was instituted in his behalf by his father, as ING-PROXIMATE CAUSE.

next friend. The negligence alleged against In the case of a child four years old, who having run along a path parallel with a rail.

the defendant was, first, a failure of its emroad, where he could have been seen by the

ployés in charge of the engine to keep propengineer, as a train was approaching a station er lookout and discover plaintiff in time to at a speed of four or five miles per hour, under- avoid the accident; and, second, that the took to go over the track at a crossing just before the engine reached it, fell and was run

plaintiff had in its employ in charge of said over-a charge that though the engineer was engine an engineer and fireman who were negligent in failing to discover the approach of incapacitated to keep a proper lookout and the child or to get his train under control after

hear signals or warnings given, in that the seeing he intended to cross, yet if the child would have crossed safely had he not fallen,

fireman was partially deaf and the engineer and a reasonably prudent person would not partially blind. The defendant pleaded the have foreseen his probable fall, the railroad general issue. A trial was had and verdict company was not liable—was properly refused; such issue, in view of the age of the child, the

and judgment rendered in favor of plaintiff fact that he was running, and the close prox

in the sum of $15,000. From this judgment imity of the engine, not being in the case. the railway company has appealed.

In view of the disposition we have made the future, and the diminished capacity, if of the cause and of the nature of the assign- any, to earn money and pursue the course of ments we shall consider it is unnecessary to life which he might otherwise have done set out the facts at length. The minor, a after he shall have arrived at the age of 21 child about four years old, was running along years. You must not allow him anything for a much used path parallel with the railway. diminished earning capacity during the petrack just as appellant's passenger train was riod of his minority, for that would belong to approaching one of its stations. The speed his father, if to any one, awarding him as a of the train was four or five miles an hour. whole only such a sum of money as the presJust before the engine reached a road cross- ent cash value of which would be actual coming the child undertook to cross the track at pensation for the injuries, if any, sustained." the crossing, fell, and was run over by the Two objections are urged against the engine. The child could have been seen by charge: First. That it is upon the weight of the engineer for some distance before it the evidence in assuming that the plaintiff reached the crossing, and the evidence pre- will suffer pain in the future; and second, sents the issue whether a reasonably pru- its terms are misleading and tended to indent person would not have foreseen that duce the jury to allow double damages. the child would undertake to cross the track. As a result of the accident the minor lost Without stating the facts more fully, we ex- his right leg about four inches below the press the opinion that the evidence presents knee, lost the great toe from his left foot, the issue of liability upon the grounds al- and in addition to other slight wounds and leged. We therefore overrule the assign- bruises, sustained a deep scalp wound. At ments addressed to the refusal of the trial the date of the trial all his hurts were encourt to instruct a verdict for defendant. tirely healed. His growth had not been re

Under the eighth assignment appellant tarded and mentally he was bright and unincomplains of the refusal of the trial court to jured. There is no evidence that his injucharge on the issue of proximate cause, and ries were of such a nature as to entail furto instruct the jury that even though the ther physical pain. We are inclined to think engineer was negligent in failing to discover the nature of his injuries presented the issue the approach of the child, or to get his train of probable future physical suffering. We under control, after seeing that he intended think, however, it would have been error to to cross, yet if the child would have crossed assume it as an inevitable consequence. safely, and without injury had he not fallen, But the charge is not open to this construcand that a reasonably prudent person would tion, hence the objection cannot be sustained. not have foreseen his probable fall, to find The second objection is practically the for defendant. The charge was properly re- same as that sustained in Railway v. Butcher, fused. Taking into consideration the age of 84 S. W. 1052, 12 Tex. Ct. Rep. 115. In that the child, the fact that he was running and case it was held in effect that the inability the close proximity to the moving engine, we to pursue the course in life which the injured think there was no such issue in the case. party might have pursued but for his inThere was evidence admitted without objec- juries fell within the category of diminished tion that the whistle was not blown, nor the capacity to labor and earn money, and that it bell rung, in approaching the crossing. This was misleading to mention it in the charge was not complained of as a ground of recov- as an element of damage additional to and ery, nor so submitted in the charge. The distinct from that. The charge held error failure in these respects had no causal con- in the case cited, and the paragraph now be nection with the accident. The court in gen- fore us cannot be distinguished in principle. eral terms excluded every ground of recovery We therefore hold on the authority of Butchexcept those specifically submitted, but re- er's Case, supra, that it is such error as refused a requested charge advising the jury quires a reversal of the judgment. Counsel that they should not consider for any pur- for appellee have filed a supplemental argupose the failure to ring the bell or sound the ment which is an able review of the authoriwhistle. Of this appellant complains. We ties bearing upon the question, especially of would not reverse upon the point because we the Texas decision containing expressions apbelieve the main charge precluded all dan- parently inconsistent with the holding in ger to appellant from the immaterial evi- Butcher's Case, supra. We do not follow dence, and that the jury were not misled. counsel in the review of these cases because, We are inclined to think, however, the spe- if it be conceded that they uphold counsel's cial charge should have been given. Appel- | contention, it would amount only to an aslant complains of the following charge on the sault on the soundness of the last expression measure of damages: “You are instructed of our Supreme Court the question. that in the event you find in favor of the Whether the charge in question would misplaintiff in estimating the actual compensa- lead a sensible jury may be gravely doubted. tory damages to which he is entitled, you That it is not an accurate instruction on the may take into consideration, and award him measure of damages we have no doubt. such a sum of money as will fairly compen- In the opening argument before the jury sate him for, the physical and mental suffer- one of the counsel for appellee used the following which he has suffered, or may suffer in ing language: "You may give this child a


verdict for $5,000 or for $25,000, and in my court as excessive only when, by its size comopinion as a lawyer our appellate court pared with the injury suffered, it is manifestwould sustain either verdict. If you should ly the result not of a sound discretion temgive a verdict that is too small it would not perately exercised, but of passion and prejube raised up, but if you should give a verdict dice. Appellate courts may exercise the that is too large the appellate court will cor- power to require a remitter only in those casrect it by cutting it down. Therefore if you es where, in the absence of the statute conerr you should err on the side that can be ferring the power, the judgment would have corrected by the appellate court.” On objec- been reversed and remanded as excessive. It tion of appellant, the court interrupted the is therefore plain that the power of this court speaker, and stated that exception had been to require a remitter in such cases is not to taken, whereupon counsel continued as fol- be considered in the trial courts for any purlows: "I am not going to make any mistake, pose. The parties plaintiff and defendant and I will state that it is primarily your du- had the right to the untrammeled judgment ty to assess the damages in this case in ac- of the jury on the question of the amount of cordance with the charge of the court and damages. The task of revising jury verdicts the evidence, but, while this is true, if you in matters of amount is both difficult and delimake a mistake and allow him too much the cate, and it ought not to be rendered more so appellate court will correct it.” This occur- by an invitation to the jury to resolve all red in the forenoon and the court made no doubts in favor of a large verdict, thus passfurther effort at that time to correct it. In ing up to the trial judge and to this court a the afternoon another of appellee's counsel duty which is not only primarily but finally used the following language: "We do not . theirs. want any measly verdict, and, as stated by The court has rarely disturbed a verdict my associate this morning, you can't make a in amount except over the bitter protest of mistake by giving too large a verdict, for if the winning party, and an eloquent warning you do the appellate court will correct it.” against the danger of encroaching upon the The court, upon objection, rebuked counsel province of the jury as the final arbiter of and instructed the jury orally not to con- the facts. What could counsel say in this sider it. He thereafter gave a requested case, if after the matter has by their own ininstruction to the same effect.

vitation been thus passed by the jury to us, One of the assignments of error is address- should we substitute for the verdict our own ed to these arguments, but counsel for appel- judgment as to the proper amount, and it lee bere insist, with evident sincerity, that should happen to be much less than the jury they were not improper. Whether, in view has found? Would they not still contend that of the action of the trial court in undertaking the jury had not departed from their legitito withdraw it from the jury, we would re- mate field of discretion which we are forverse the judgment upon this ground alone, bidden to invade? And this, though the lanwe need not determine, because the appeal guage complained of may have induced the has been disposed of upon other grounds. jury to render a verdict for $15,000 instead For a like reason we might ordinarily allow $5,000 or the matter to pass without comment. We would probably bave ignored it had counsel argument reprehensible is that it is impossifor appellee conceded its impropriety. But ble to determine the extent to which a verdict that the error may be repeated hereafter is may be affected thereby, and the evil cannot evident from the earnest insistence of coun- therefore be cured by requiring a remitter. sel, both here and in the lower court, that Such language is a most insidious temptation the language used was both lawful and ap- to a jury, and it is doubtful if its effect can propriate. For this reason we take this op- be withdrawn by any action on the part of portunity to stamp it once for all with our the trial court. Whether, therefore, in any unqualified disapproval. In cases of this case we would hold the error harmless we do sort involving elements of damage incapable not decide. of accurate measurement in dollars and cents, For the reasons given, the judgment is rethe field of the jury's discretion is broad in- versed and the cause remanded. deed, and a verdict can be disturbed by this Reversed and remanded.

o of But the conclusive reason for holding such

tending to return to said tract and reocLYNCH v. McGOWN.

cupy the same, in the meantime using said Court of Civil Appeals of Texas. June 21,

60 acres of land for the benefit of the fam1905.)

ily, and at no time ceasing to claim said HOMESTEAD-ABANDONMENT

tract of land as a homestead; that notwith


standing these facts the defendant, John In a suit to restrain the levy of an exe- Lynch, has caused said property to be levied cution on certain land which complainant claim- upon and advertised for sale under an exed as his homestead, defendant pleaded an abandonment, and complainant's evidence with ref

ecution issued upon a judgment in favor of erence to his intention to return to make his

said defendant against plaintiff, rendered in permanent home on the land after he had es- a justice court of San Augustine county. tablished his home elsewhere was indefinite and

The prayer of the petition is for an injuncsomewhat contradictory. The court charged that, where a homestead is once acquired, pur

tion restraining the sale of the property. chase and removal to another tract will not of In reply to plaintiff's first amended original itself deprive the purchaser of his homestead petition, defendant filed his first supplementrights in the first tract, provided he intended,

al answer, in which, inter alia, he excepted in such removal, to occupy the second place only temporarily, and intended to return to the

specially to plaintiff's first amended original first place. Held, that the charge was errone- petition, in that it did not allege sufficient ous, as a charge on the weight of the evidence,

facts to prove the land in controversy plainand prejudicial, in making the question of abandonment depend alone on plaintiff's inten

tiff's homestead at the date of the levy; that tion at the time of his removal, instead of on it did not deny that since his removal from whether his intention to return to the first the tract of land in controversy he had actract existed at the time of such removal, at

quired another homestead, and acquired title the date of the levy, and at all times intervening.

to another tract of land, and established [Ed. Note.-For cases in point, see vol. 25,

his homestead thereon; that it did not alCent. Dig. Homestead, § 315.)

lege that since his removal from said land

he had continued to use the same for a home, Appeal from District Court, Sabine County; Tom C. Davis, Judge.

Defendant answered further, among other Action by J. H. McGown against John

things, that at the date of the levy plaintifi Lynch. From a decree in favor of plain

had acquired a homestead in the town of tiff, defendant appeals. Reversed.

Hemphill on lands owned by him, to which

he had acquired a title before he did to the Goodrich & Synnott, for appellant.

land in controversy, and that he never re

sided on the land in controversy after acPLEASANTS, J. This is a suit for in- quiring title thereto. Upon the trial of the junction brought by appellee to restrain the case in the court below, defendant's excepsale of a tract of 60 acres of land, a part tions to the petition were sustained, and of J. I. Pifermo grant, in Sabine county, plaintiff was granted leave to file a trial claimed by him to be his homestead. The amendment; and, on his verbal statement land was levied on by the sheriff of Sabine of what said amendment would contain, the county under an execution issued upon a court allowed the trial to proceed, with the judgment in favor of appellant against the understanding that the written amendment appellee, rendered in a justice court of San would be filed thereafter. This amendAugustine county, and to restrain the sale ment was not filed until after the trial had under this levy this suit was instituted. been concluded. The trial resulted in a Plaintiff's amended petition alleges, in sub- verdict and judgment in favor of plaintiff. stance, that he is the head of a family, and The only evidence adduced upon the isthat long prior to October 27, 1903, the date sue of homestead was the testimony of of the levy of the execution, he had estab- plaintiff, which is as follows: "I was born lished his homestead on the land in con- and have always lived in Sabine county, troversy; that for many years he resided on Texas. I am a married man, and have a said land, and that it has continued to be family. I have been married three times. his homestead to the present time, and has I was married first in 18, and had one at no time been abandoned as such, but, on child by my first wife. My first wife died the contrary, he has for the past 10 years in 18%. I married my second wife in 1886. continuously asserted homestead rights in She died about 1898. I have several chilthe premises, and has never claimed such dren by her still living. During my first rights in any other land; that prior to Oc- wife's lifetime my father gave me the sixty tober 27, 1903, he, together with his said acres of land in controversy in this suit. family, for business purposes, and with the I moved on it and made it my home until intention to return and occupy said 60 acres after my second wife's death, and until my of land as their homestead, and with no in- oldest daughter married, in 18. After my tention whatever to abandon it or to re- second wife died I continued to live on the linquish the homestead rights therein, did sixty acres with my children until my oldest temporarily remove therefrom, and did daughter married, after which I broke up temporarily occupy another and different housekeeping and sent some of my children residence, and since that time and up to to live with my parents, and one-the baby he present time have so continued to re- -was taken by Mr. Coussons. I then went de at another and different place, but in- away from the place and taught school. Part of the time I taught school in Angelina it as my homestead. When my father gave county, and part of the time in Sabine coun- me this land he did not deed it to me, but ty. I boarded while I taught school. In be made me a deed later. I have been livthe spring of 1899 I returned to the land ing in Hemphill ever since I sold my place in controversy and made a crop on it. In to L, Low. I have not lived on the land in the fall of 1899 I taught school again, and controversy since the levy of the execution boarded while I taught school. In the on it.” spring of 1900 I went to Hemphill to study Appellant's first assignment of error is as law, and later was admitted to the bar, and follows: "The court erred in its charge to have been a practicing attorney ever since. the jury, in charging in words as follows: While I was studying law, and for a while 'Where a homestead is once acquired upon after I began practicing up to the time of land, a removal therefrom to another tract my marriage with my present wife, I board. of land in a town, and purchase of such othed in the town of Hemphill. After the death er tract, will not of itself deprive him of of my second wife and the marriage of my his homestead rights in the first tract, prooldest daughter I have rented the land in vided he intended, in such removal, to occontroversy, except the one year I cultivat- cupy the second place only temporarily, and ed it myself in 1899. In 1901 I married intended to return to the first place.' Said my present wife, and in September, 1901, I charge being upon the weight of the evipurchased a place in Hemphill-being block dence, in that it singles out important facts No. 26–on which there was a residence and introduced in evidence, and tells the jury other outhouses, from Dr. Harrison, and I that they do not constitute abandonment, immediately moved into the residence with and also because it makes the question of my family. I resided on block No. 26 in abandonment depend alone upon plaintiff's the town of Hemphill, with my family, con- intention at the very time of his, removal, tinuously from the time I moved on it, in instead of making it depend upon whether 1901, until I sold it, in 1904. I was living or not his intention to return to the first on this place when the execution was lev- tract of land in controversy existed at the ied upon the sixty acres of land contro- time of such removal, at the date of the versy in this suit. I bought the place from levy of the execution, and at all times inDr. Harrison, and paid him $10 cash, and tervening.” We think the assignment should gave vendor's lien notes for the balance. I be sustained. The charge is misleading in paid something on the notes. There was a that the jury might have understood therebalance due on one of the notes when I sold from that, if the plaintiff did not intend this place. I sold the place to L. Low, I when he moved upon the place in Hemphill think, in January, 1904. The notes were not to abandon his homestead upon the property fully paid when the execution was levied in controversy, it continued to be his homeon the sixty acres of land in controversy stead notwithstanding the fact that he had in this suit. Low paid me some money for

lived with his family for a number of years the place, and assumed the payment of the upon the property which he purchased in balance due on the note I gave for it when the town of Hemphill, and may not have I bought it. I lived on this place at the had at all times a fixed intention to return date of the levy of the execution on the land to the property in controversy. The indefin controversy in this suit, and I sold the inite and somewhat contradictory testimony place (block No. 26 in Hemphill) to L. Low of the plaintiff as to his continuing intenafter the levy of the execution on the sixty tion of returning to and making his permaacres of land in controversy. I occupied the nent home upon the land in controversy place in Hemphill (block No. 26) as a home, after he established his home in Hemphill and called it my home, but I always asserted rendered this inaccuracy in the charge spehomestead rights in the land in controversy, cially harmful to the defendant, and requires and not in block No. 26. When I moved a reversal of the judgment. Schwartzman v. away from the sixty acres in controversy I Cabell (Tex. Civ. App.) 49 S. W. 115; White did not intend to abandon it as my home- v. Epperson (T2x. Civ. App.) 73 S. W. 852. stead, but intended to return to it, and have It is unnecessary for us to pass upon the never intended to abandon it as such; but other assignments of error presented by apI have never lived on it as a home since pellant. Other portions of the charge comthe marriage of my oldest daughter, except plained of under appropriate assignments the one year I cultivated it, in 1899, but I contain the same error above pointed out, have kept it rented out. I have never as- and to that extent said assignments are susserted homestead rights in any other tract tained. If any further error is shown by of land. When the levy of the execution any of the remaining assignments, it is was made on the sixty acres of land I was not such as is likely to occur upon another just recovering from a spell of typhoid fever, trial of the case. and I then intended to return to the land in Because of the errors in the charge, the controversy, and I then claimed it as my judgment of the court below is reversed, homestead. I think it is my intention now and the cause remanded. to return to it. I have always considered Reversed and remanded.

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