of the defendant. This information was necessary to enable defendant to properly prepare its defense, and, having been called for by special exceptions and refused by the plaintiff, defendant was not required to offer any proof to meet the indefinite and uncertain allegations of the petition, but could stand upon its right to have the plaintiff state specifically what amount he was claiming under each of his allegations of damage.

We think the remaining assignments of error are without merit. The testimony of the plaintiff as to the time which it ordinarily took to transport a car of calves from Hallettsville to New Orleans does not show that he was speaking from hearsay. He testified that he knew the time, and his further statement that he never accompanied but one shipment does not contradict his statement that he had personal knowledge from which he could testify as to what was the length of time ordinarily required to make the shipment. He might have gained his knowledge from statements of defendant's agents, or in other ways than by actually accompanying shipments. The clause in the contract of shipment by which the shipper agrees to release the carrier from all liability for delay after delivery to its agent, or for delay in receiving the shipment after it should be tendered to its agent, does not release the defendant from liability for delay caused by the negligence of its own employés; and the word "agent," as used in this clause, clearly refers to the connecting line to which the initial carrier contracted to deliver the shipment.

Because of the error of the trial court in refusing to sustain the exception to the petition before discussed, the judgment is reversed, and the cause remanded for a new trial as between the plaintiff and the appellant. The judgment in favor of the San Antonio & Aransas Pass Railway Company is not com plained of, and is therefore undisturbed. Reversed and remanded.

MISSOURI, K. & T. RY. CO. OF TEXAS V. NESBIT.

(Court of Civil Appeals of Texas. June 27, 1905.)

1. RAILROADS-INJURY TO CHILD AT CROSSING-PROXIMATE CAUSE.

In the case of a child four years old, who having run along a path parallel with a railroad, where he could have been seen by the engineer, as a train was approaching a station at a speed of four or five miles per hour, undertook to go over the track at a crossing just before the engine reached it, fell and was run over a charge that though the engineer was negligent in failing to discover the approach of the child or to get his train under control after seeing he intended to cross, yet if the child would have crossed safely had he not fallen, and a reasonably prudent person would not have foreseen his probable fall, the railroad company was not liable-was properly refused; such issue, in view of the age of the child, the fact that he was running, and the close proximity of the engine, not being in the case.

2. SAME-NEGLIGENCE EVIDENCE.

In the case of injury to a child at a railroad crossing, the only negligence charged being failure of the persons in charge of the engine to keep a proper lookout, and the employment by the company of incompetent men, a charge that evidence of failure to give crossing signals should not be considered for any purpose should be given.

3. PERSONAL INJURIES-FUTURE SUFFERINGEVIDENCE.

The nature of the injuries presents the issue of probable future physical suffering, it being shown that by the accident plaintiff lost one leg, nearly to the knee, the great toe on the other foot, and sustained a deep scalp wound, though at the trial all the hurts were entirely healed.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, § 236.]

4. SAME-INSTRUCTIONS-ASSUMPTION,

The charge in an action for personal injuries that in case of a finding for plaintiff, suffering he has suffered or may suffer, does the jury may consider the physical or mental not assume that plaintiff will inevitably have future physical suffering from the injury. 5. SAME-DOUBLE DAMAGES.

Inability to pursue the course in life which plaintiff might have pursued but for his injuries falls within the category of diminished capacity to labor and earn money, so that an instruction authorizing damages for both allows the giving of double damages.

6. SAME ARGUMENT OF COUNSEL - AMOUNT OF VERDICT.

Remarks of counsel in a personal injury case that if the jury give a verdict too small it will not be raised, but that if they give one too large the appellate court will correct it by cutting it down, so that if they err they should err on the side that can be corrected by the appellate court, are improper.

Appeal from District Court, Trinity County; J. M. Smither, Judge.

Action by Marvin A. Nesbit, by next friend, against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Reversed.

T. S. Miller, Bean & Nelms, and Thomas & Rhea, for appellant. Lovejoy & Malevinsky, H. L. Robb, and Andrews, Ball & Streetman, for appellee.

GILL, J. On May 28, 1903, at Willard, in Trinity Co., Tex., Marvin A. Nesbit, a boy about four years of age, was struck and injured by an engine of appellant pulling a passenger train, at a public road crossing, and to recover damages therefor this suit was instituted in his behalf by his father, as next friend. The negligence alleged against the defendant was, first, a failure of its employés in charge of the engine to keep proper lookout and discover plaintiff in time to avoid the accident; and, second, that the plaintiff had in its employ in charge of said engine an engineer and fireman who were incapacitated to keep a proper lookout and hear signals or warnings given, in that the fireman was partially deaf and the engineer partially blind. The defendant pleaded the general issue. A trial was had and verdict and judgment rendered in favor of plaintiff in the sum of $15,000. From this judgment the railway company has appealed.

In view of the disposition we have made of the cause and of the nature of the assignments we shall consider it is unnecessary to set out the facts at length. The minor, a child about four years old, was running along a much used path parallel with the railway track just as appellant's passenger train was approaching one of its stations. The speed of the train was four or five miles an hour. Just before the engine reached a road crossing the child undertook to cross the track at the crossing, fell, and was run over by the engine. The child could have been seen by the engineer for some distance before it reached the crossing, and the evidence presents the issue whether a reasonably prudent person would not have foreseen that the child would undertake to cross the track. Without stating the facts more fully, we express the opinion that the evidence presents the issue of liability upon the grounds alleged. We therefore overrule the assignments addressed to the refusal of the trial court to instruct a verdict for defendant.

Under the eighth assignment appellant complains of the refusal of the trial court to charge on the issue of proximate cause, and to instruct the jury that even though the engineer was negligent in failing to discover the approach of the child, or to get his train under control, after seeing that he intended to cross, yet if the child would have crossed safely, and without injury had he not fallen, and that a reasonably prudent person would not have foreseen his probable fall, to find for defendant. The charge was properly refused. Taking into consideration the age of the child, the fact that he was running and the close proximity to the moving engine, we think there was no such issue in the case. There was evidence admitted without objection that the whistle was not blown, nor the bell rung, in approaching the crossing. This was not complained of as a ground of recovery, nor so submitted in the charge. The failure in these respects had no causal connection with the accident. The court in general terms excluded every ground of recovery except those specifically submitted, but refused a requested charge advising the jury that they should not consider for any purpose the failure to ring the bell or sound the whistle. Of this appellant complains. We would not reverse upon the point because we believe the main charge precluded all danger to appellant from the immaterial evidence, and that the jury were not misled. We are inclined to think, however, the special charge should have been given. Appellant complains of the following charge on the measure of damages: "You are instructed that in the event you find in favor of the plaintiff in estimating the actual compensatory damages to which he is entitled, you may take into consideration, and award him such a sum of money as will fairly compensate him for, the physical and mental suffering which he has suffered, or may suffer in

the future, and the diminished capacity, if any, to earn money and pursue the course of life which he might otherwise have done after he shall have arrived at the age of 21 years. You must not allow him anything for diminished earning capacity during the period of his minority, for that would belong to his father, if to any one, awarding him as a whole only such a sum of money as the present cash value of which would be actual compensation for the injuries, if any, sustained."

Two objections are urged against the charge: First. That it is upon the weight of the evidence in assuming that the plaintiff will suffer pain in the future; and second, its terms are misleading and tended to induce the jury to allow double damages.

As a result of the accident the minor lost his right leg about four inches below the knee, lost the great toe from his left foot, and in addition to other slight wounds and bruises, sustained a deep scalp wound. At the date of the trial all his hurts were entirely healed. His growth had not been retarded and mentally he was bright and uninjured. There is no evidence that his injuries were of such a nature as to entail further physical pain. We are inclined to think the nature of his injuries presented the issue of probable future physical suffering. We think, however, it would have been error to assume it as an inevitable consequence. But the charge is not open to this construction, hence the objection cannot be sustained.

The second objection is practically the same as that sustained in Railway v. Butcher, 84 S. W. 1052, 12 Tex. Ct. Rep. 115. In that case it was held in effect that the inability to pursue the course in life which the injured party might have pursued but for his injuries fell within the category of diminished capacity to labor and earn money, and that it was misleading to mention it in the charge as an element of damage additional to and distinct from that. The charge held error in the case cited, and the paragraph now before us cannot be distinguished in principle. We therefore hold on the authority of Butcher's Case, supra, that it is such error as requires a reversal of the judgment. Counsel for appellee have filed a supplemental argument which is an able review of the authorities bearing upon the question, especially of the Texas decision containing expressions apparently inconsistent with the holding in Butcher's Case, supra. We do not follow counsel in the review of these cases because, if it be conceded that they uphold counsel's contention, it would amount only to an assault on the soundness of the last expression of our Supreme Court on the question. Whether the charge in question would mislead a sensible jury may be gravely doubted. That it is not an accurate instruction on the measure of damages we have no doubt.

In the opening argument before the jury one of the counsel for appellee used the following language: "You may give this child a

verdict for $5,000 or for $25,000, and in my opinion as a lawyer our appellate court would sustain either verdict. If you should give a verdict that is too small it would not be raised up, but if you should give a verdict that is too large the appellate court will correct it by cutting it down. Therefore if you err you should err on the side that can be corrected by the appellate court." On objection of appellant, the court interrupted the speaker, and stated that exception had been taken, whereupon counsel continued as follows: "I am not going to make any mistake, and I will state that it is primarily your duty to assess the damages in this case in accordance with the charge of the court and the evidence, but, while this is true, if you make a mistake and allow him too much the appellate court will correct it." This occurred in the forenoon and the court made no further effort at that time to correct it. In the afternoon another of appellee's counsel used the following language: "We do not want any measly verdict, and, as stated by my associate this morning, you can't make a mistake by giving too large a verdict, for if you do the appellate court will correct it." The court, upon objection, rebuked counsel and instructed the jury orally not to consider it. He thereafter gave a requested instruction to the same effect.

One of the assignments of error is addressed to these arguments, but counsel for appellee here insist, with evident sincerity, that they were not improper. Whether, in view of the action of the trial court in undertaking to withdraw it from the jury, we would reverse the judgment upon this ground alone, we need not determine, because the appeal has been disposed of upon other grounds. For a like reason we might ordinarily allow the matter to pass without comment. We would probably have ignored it had counsel for appellee conceded its impropriety. But that the error may be repeated hereafter is evident from the earnest insistence of counsel, both here and in the lower court, that the language used was both lawful and appropriate. For this reason we take this op portunity to stamp it once for all with our unqualified disapproval. In cases of this sort involving elements of damage incapable of accurate measurement in dollars and cents, the field of the jury's discretion is broad indeed, and a verdict can be disturbed by this

court as excessive only when, by its size compared with the injury suffered, it is manifestly the result not of a sound discretion temperately exercised, but of passion and prejudice. Appellate courts may exercise the power to require a remitter only in those cases where, in the absence of the statute conferring the power, the judgment would have been reversed and remanded as excessive. It is therefore plain that the power of this court to require a remitter in such cases is not to be considered in the trial courts for any purpose. The parties plaintiff and defendant had the right to the untrammeled judgment of the jury on the question of the amount of damages. The task of revising jury verdicts in matters of amount is both difficult and delicate, and it ought not to be rendered more so by an invitation to the jury to resolve all doubts in favor of a large verdict, thus passing up to the trial judge and to this court a duty which is not only primarily but finally theirs.

The court has rarely disturbed a verdict in amount except over the bitter protest of the winning party, and an eloquent warning against the danger of encroaching upon the province of the jury as the final arbiter of the facts. What could counsel say in this case, if after the matter has by their own invitation been thus passed by the jury to us, should we substitute for the verdict our own judgment as to the proper amount, and it should happen to be much less than the jury has found? Would they not still contend that the jury had not departed from their legitimate field of discretion which we are forbidden to invade? And this, though the language complained of may have induced the jury to render a verdict for $15,000 instead of $5,000 or $10,000.

But the conclusive reason for holding such argument reprehensible is that it is impossible to determine the extent to which a verdict may be affected thereby, and the evil cannot therefore be cured by requiring a remitter. Such language is a most insidious temptation to a jury, and it is doubtful if its effect can be withdrawn by any action on the part of the trial court. Whether, therefore, in any case we would hold the error harmless we do not decide.

For the reasons given, the judgment is reversed and the cause remanded. Reversed and remanded.

LYNCH v. MCGOWN.

Court of Civil Appeals of Texas. June 21,

1905.)

HOMESTEAD-ABANDONMENT INJUNCTION-INSTRUCTIONS.

In a suit to restrain the levy of an execution on certain land which complainant claimed as his homestead, defendant pleaded an abandonment, and complainant's evidence with reference to his intention to return to make his permanent home on the land after he had established his home elsewhere was indefinite and somewhat contradictory. The court charged that, where a homestead is once acquired, purchase and removal to another tract will not of itself deprive the purchaser of his homestead rights in the first tract, provided he intended, in such removal, to occupy the second place only temporarily, and intended to return to the first place. Held, that the charge was erroneous, as a charge on the weight of the evidence, and prejudicial, in making the question of abandonment depend alone on plaintiff's intention at the time of his removal, instead of on whether his intention to return to the first tract existed at the time of such removal, at the date of the levy, and at all times intervening.

[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Homestead, § 315.]

Appeal from District Court, Sabine County; Tom C. Davis, Judge.

Action by J. H. McGown against John Lynch. From a decree in favor of plaintiff, defendant appeals. Reversed.

Goodrich & Synnott, for appellant.

PLEASANTS, J. This is a suit for injunction brought by appellee to restrain the sale of a tract of 60 acres of land, a part of J. I. Pifermo grant, in Sabine county, claimed by him to be his homestead. The land was levied on by the sheriff of Sabine county under an execution issued upon a judgment in favor of appellant against the appellee, rendered in a justice court of San Augustine county, and to restrain the sale under this levy this suit was instituted. Plaintiff's amended petition alleges, in substance, that he is the head of a family, and that long prior to October 27, 1903, the date of the levy of the execution, he had established his homestead on the land in controversy; that for many years he resided on said land, and that it has continued to be his homestead to the present time, and has at no time been abandoned as such, but, on the contrary, he has for the past 10 years continuously asserted homestead rights in the premises, and has never claimed such rights in any other land; that prior to October 27, 1903, he, together with his said family, for business purposes, and with the intention to return and occupy said 60 acres of land as their homestead, and with no intention whatever to abandon it or to relinquish the homestead rights therein, did temporarily remove therefrom, and did temporarily occupy another and different residence, and since that time and up to he present time have so continued to re'de at another and different place, but in

tending to return to said tract and reoccupy the same, in the meantime using said 60 acres of land for the benefit of the family, and at no time ceasing to claim said tract of land as a homestead; that notwithstanding these facts the defendant, John Lynch, has caused said property to be levied upon and advertised for sale under an execution issued upon a judgment in favor of said defendant against plaintiff, rendered in a justice court of San Augustine county. The prayer of the petition is for an injunction restraining the sale of the property. In reply to plaintiff's first amended original petition, defendant filed his first supplemental answer, in which, inter alia, he excepted specially to plaintiff's first amended original petition, in that it did not allege sufficient facts to prove the land in controversy plaintiff's homestead at the date of the levy; that it did not deny that since his removal from the tract of land in controversy he had acquired another homestead, and acquired title to another tract of land, and established his homestead thereon; that it did not allege that since his removal from said land he had continued to use the same for a home. Defendant answered further, among other things, that at the date of the levy plaintif had acquired a homestead in the town of Hemphill on lands owned by him, to which he had acquired a title before he did to the land in controversy, and that he never resided on the land in controversy after acquiring title thereto. Upon the trial of the case in the court below, defendant's exceptions to the petition were sustained, and plaintiff was granted leave to file a trial amendment; and, on his verbal statement of what said amendment would contain, the court allowed the trial to proceed, with the understanding that the written amendment would be filed thereafter. This amendment was not filed until after the trial had been concluded. The trial resulted in a verdict and judgment in favor of plaintiff.

The only evidence adduced upon the issue of homestead was the testimony of plaintiff, which is as follows: "I was born and have always lived in Sabine county, Texas. I am a married man, and have a family. I have been married three times. I was married first in 18, and had one child by my first wife. My first wife died in 18-. I married my second wife in 1886. She died about 1898. I have several children by her still living. During my first wife's lifetime my father gave me the sixty acres of land in controversy in this suit. I moved on it and made it my home until after my second wife's death, and until my oldest daughter married, in 18-. After my second wife died I continued to live on the sixty acres with my children until my oldest daughter married, after which I broke up housekeeping and sent some of my children to live with my parents, and one-the baby -was taken by Mr. Coussons. I then went away from the place and taught school.

I

Part of the time I taught school in Angelina county, and part of the time in Sabine county. I boarded while I taught school. In the spring of 1899 I returned to the land in controversy and made a crop on it. In the fall of 1899 I taught school again, and boarded while I taught school. In the spring of 1900 I went to Hemphill to study law, and later was admitted to the bar, and have been a practicing attorney ever since. While I was studying law, and for a while after I began practicing up to the time of my marriage with my present wife, I boarded in the town of Hemphill. After the death of my second wife and the marriage of my oldest daughter I have rented the land in controversy, except the one year I cultivated it myself in 1899. In 1901 I married my present wife, and in September, 1901, I purchased a place in Hemphill-being block No. 26 on which there was a residence and other outhouses, from Dr. Harrison, and I immediately moved into the residence with my family. I resided on block No. 26 in the town of Hemphill, with my family, continuously from the time I moved on it, in 1901, until I sold it, in 1904. I was living on this place when the execution was levied upon the sixty acres of land in controversy in this suit. I bought the place from Dr. Harrison, and paid him $10 cash, and gave vendor's lien notes for the balance. paid something on the notes. There was a balance due on one of the notes when I sold this place. I sold the place to L. Low, I think, in January, 1904. The notes were not fully paid when the execution was levied on the sixty acres of land in controversy in this suit. Low paid me some money for the place, and assumed the payment of the balance due on the note I gave for it when I bought it. I lived on this place at the date of the levy of the execution on the land in controversy in this suit, and I sold the place (block No. 26 in Hemphill) to L. Low after the levy of the execution on the sixty acres of land in controversy. I occupied the place in Hemphill (block No. 26) as a home, and called it my home, but I always asserted homestead rights in the land in controversy, and not in block No. 26. When I moved away from the sixty acres in controversy I did not intend to abandon it as my homestead, but intended to return to it, and have never intended to abandon it as such; but I have never lived on it as a home since the marriage of my oldest daughter, except the one year I cultivated it, in 1899, but I have kept it rented out. I have never asserted homestead rights in any other tract of land. When the levy of the execution was made on the sixty acres of land I was just recovering from a spell of typhoid fever, and I then intended to return to the land in controversy, and I then claimed it as my homestead. I think it is my intention now to return to it. I have always considered

it as my homestead. When my father gave me this land he did not deed it to me, but he made me a deed later. I have been living in Hemphill ever since I sold my place to L. Low. I have not lived on the land in controversy since the levy of the execution on it."

Said

Appellant's first assignment of error is as follows: "The court erred in its charge to the jury, in charging in words as follows: 'Where a homestead is once acquired upon land, a removal therefrom to another tract of land in a town, and purchase of such other tract, will not of itself deprive him of his homestead rights in the first tract, provided he intended, in such removal, to occupy the second place only temporarily, and intended to return to the first place.' charge being upon the weight of the evidence, in that it singles out important facts introduced in evidence, and tells the jury that they do not constitute abandonment, and also because it makes the question of abandonment depend alone upon plaintiff's intention at the very time of his removal, instead of making it depend upon whether or not his intention to return to the first tract of land in controversy existed at the time of such removal, at the date of the levy of the execution, and at all times intervening." We think the assignment should be sustained. The charge is misleading in that the jury might have understood therefrom that, if the plaintiff did not intend when he moved upon the place in Hemphill to abandon his homestead upon the property in controversy, it continued to be his homestead notwithstanding the fact that he had lived with his family for a number of years upon the property which he purchased in the town of Hemphill, and may not have had at all times a fixed intention to return to the property in controversy. The indefinite and somewhat contradictory testimony of the plaintiff as to his continuing intention of returning to and making his permanent home upon the land in controversy after he established his home in Hemphill rendered this inaccuracy in the charge specially harmful to the defendant, and requires a reversal of the judgment. Schwartzman v. Cabell (Tex. Civ. App.) 49 S. W. 115; White v. Epperson (Tex. Civ. App.) 73 S. W. 852.

It is unnecessary for us to pass upon the other assignments of error presented by ap pellant. Other portions of the charge complained of under appropriate assignments contain the same error above pointed out, and to that extent said assignments are sustained. If any further error is shown by any of the remaining assignments, it is not such as is likely to occur upon another trial of the case.

Because of the errors in the charge, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.