author: BUCK, J.

text:
    TEXAS & P. RY. CO. v. RASMUSSEN.
    (No. 8265.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 13, 1915.
    On Motion for Rehearing, Dec. 4, 1915.)
    1. Removal oe Causes &wkey;»3 — Rioht to Removal — Fedeeal Employers’ Liability Act.
    Under the federal Employers’ Liability Act (Act Cong. April 22, 1908, c. 149, | 6, 35 Stat. 66), as amended by Act Cong. April 5, 1910, c. 143, § 1, 36 Stat. 291 (U. S. Comp. St. 1913, § 8662), declaring that the jurisdiction of the federal courts shall be concurrent with that of the state courts and that no cause shall be removed to any federal court, an action under the federal Employers’ Liability Act cannot be removed from a state to a federal court.
    [Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. <S=»3.]
    2. Damages <&wkey;178 — Personal Injuries — Evidence.
    In a railroad employe’s action for personal injuries received in a derailment, where he was pinioned under the engine and scalded, evidence of mental suffering at that time is admissible on the question of damages, being coupled with present physical pain and suffering incident to the injuries.
    [Ed. Note. — Eor other cases, see Damages, Gent. Dig. § 472; Dec. Dig. <&wkey;>178.]
    3. Evidence <&wkey;471 — Opinion—Personal Injuries — Disability oe Plaintiff.
    In an action for personal injuries received by a railroad employé in a derailment, his testimony that he could never run an engine again, though he had been able to before the injury, is admissible.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 2149-2185; Dec. Dig. &wkey;471; Witnesses, Gent. Dig. §§ 833-836.]
    4. Damages <&wkey;173 — Personal Injuries — Evidence.
    While the measure of damages as to decreased ability to labor is generally determined by the earning capacity of the injured person at the time of injury and does not include probability of increased ability to earn money arising from promotion, yet the question of damages depends upon plaintiff’s earning capacity at the time of the injury, so evidence that he would not thereafter be able to run a switch engine, which he had been able to do before injury, is properly received, though at the time of the accident he was not an engineer.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 490^492, 501; Dee. Dig. &wkey;173J
    6. Appeal and Error &wkey;>1053 — Review — Harmless Error.
    The erroneous admission of evidence is harmless, where the jury were directed not to consider it.
    [Ed. Note. — Eor other cases, see Appeal and Error, Gent. Dig. §§ 4178^4184, Dee. Dig. 1053.]
    6. Evidence <&wkey;528 — Experts—Personal Injuries — Extent.
    ■ In a personal injury action, a medical expert may testify that plaintiff’s burned leg was susceptible to infection and probably subject to blood poisoning or erysipelas.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2335-2337; Dec. Dig. &wkey;528.]
    7. Trial &wkey;>119 — Argument oe Counsel — Applicability to Evidence.
    Where the only issue in a personal injury action was damages, there being no allegation as to punitive damages, argument that the defendant railroad company was guilty of a gross piece of carelessness, and that it might have been guilty many times before of the same carelessness, by reason of overtaxing its employés, is improper, being without the issues and tending to produce an excessive verdict.
    [Ed. Note, — Eor other cases, see Trial, Cent. Dig. § 2S4; Dec. Dig. &wkey;>119.]
    8. Trial <s=125 — Argument oe Counsel-Appeal to Passion.
    In a personal injury action by a railroad employé, argument that if he had been working on a defective engine and to hold hjs job was compelled to go out on it, without objections, there could have been no recovery for his death in case of explosion, and that often actions by railroad employés were defeated on the ground of assumption of risk, is improper, being inflammatory, particularly when connected with an appeal for a large verdict.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 303-307; Dec. Dig. &wkey;125.]
    9. Trial &wkey;>128 — Argument oe Counsel — Improper Suggestion to Jury.
    Where plaintiff’s counsel, in asking for a large verdict, suggested that the several jurors might each determine what damages they considered proper and take the quotient, coupled with a warning that if this was done under a previous agreement to that effect it would render the verdict objectionable, such argument is improper, being tantamount to a suggestion that those of the jury who were in favor of a large verdict could swell it by suggesting an amount larger than they themselves thought proper.'
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 309; Dec. Dig. <&wkey;128.]
    10. Trial <&wkey; 133 — Improper Argument — Instructions.
    Instructions to disregard improper argument do not in every ease cure the error.
    [Ed. Note. — Eor other cases, see Trial, Gent. Dig. § 316; Dec. Dig. &wkey;133.]
    On Motion for Rehearing.
    11. Appeal and Error <&wkey;1140 — Determination — Remittitur.
    Where, in a personal injury action, argument of plaintiff’s counsel was prejudicially erroneous, and the verdict of the jury was large, the Court of Civil Appeals cannot, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1631, declaring that it shall be the duty of the Court of Civil Appeals, where the judgment is excessive, to indicate the amount of the excess and permit the party in whose favor judgment was rendered to enter a remittitur, determine the amount of the excess and allow a remittitur.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4089 — 4105; Dec. Dig. 1140.]
    Buck, J., dissenting.
    Appeal from District Court, Tarrant County ; R. B. Young, Judge.
    Action by C. Rasmussen against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Thompson & Barwise and Lassiter, Harrison & Rowland, all of Ft. Worth, for appellant. Oarlock & Carlock, of Ft. Worth, for appellee.
   BUCK, J.

Suit was instituted by appellee in the forty-eighth district court of Tarrant county, May 11, 1914, against appellant for $50,000 damages, alleged to have been sustained by plaintiff while in the employment of defendant as a switchman. The accident occurred on November 17, 1913, at Eagle Ford, Tex., and was caused by a passenger train, on which plaintiff was working, running into an open switch, thereby overturning the train. The plaintiff was caught under the engine and badly scalded, especially as to his right leg, and his right hand was so badly mangled that he lost a portion of the palm and three fingers thereof. Other injuries to various portions of his body were alleged. Plaintiff was alleged to have been at the time of the accident, 49 years of age, and earning from $140 to $150 per month, and to have been so crippled and injured that he would be disabled from following his chosen calling, and to have been rendered unable to labor and earn money in the future. Defendant was alleged to have been engaged in interstate commerce at the time of the injury. Plaintiff alleged that the direct and proximate cause of the accident and injuries complained of was the negligence of the other employés of defendant, who were at the time using the side track, in failing to close the switch; that the train on which plaintiff was working was running on schedule time and had the right of way of the main track, and, not expecting to halt or stop at Eagle Ford, the engine drawing the said train ran into an open or misplaced switch. He further alleged that the proximate cause of the injury was the negligence of the defendant in failing to see to it that the main line track was in proper condition for the said passenger train to move over the same in safety, and that plaintiff was not guilty of contributory negligence. On June 1, 1914, defendant filed its petition, together with bond, for removal of the cause to the District Court of the United States for the Northern 'District of Texas, alleging that the federal, and not the state, court had jurisdiction over said cause, inasmuch as the matter in dispute, exclusive of interest and costs, exceeded the sum of $3,000, and that the defendant was a corporation duly organized and existing by virtue of an ■ act of Congress. This application and petition was denied by the trial court, to which action defendant excepted and preserves its exception in its first assignment of error. While in its answer to the merits the defendant denied any liability by reason of the allegations contained in plaintiff’s petition, yet in the lower court, as well as in its brief in this court, liability was admitted, provided it be determined that the state court had jurisdiction. The cause was submitted to the jury in a general charge, and plaintiff was awarded damages in the sum of $22,960, and judgment was rendered thereon for said amount, from which judgment defendant has appealed.

We are of the opinion that the court did not err in overruling defendant’s application for removal. The act of Congress approved April 5,1910, amending the act known as the “federal Employers’ Diability Act,” approved April 22, 1908, contains the following provision:

“Sec. 6. * * * Under this act an action may be brought in a Circuit Court of the United States, m the district of the residence of the defendant, or in which the cause of action arose, or m which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with (emphasis owS) that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.” 36 Stat. 291, c. 143, § 1 (U. S. Comp. St. 1913, § 8662).

In the case of Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, in a suit involving the act of 1908 and the amendment thereto of 1910, Mr. Justice Van De-vanter, speaking for the court, says:

“We come next to consider whether rights arising under the congressional act may be enforced, as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion. The first of the cases now before us was begun in one of the superior courts of the state of Connecticut, and, in that case, the Supreme Court of Errors of the state answered the question in the negative. That, however, was not because the ordinary jurisdiction of the superior courts, as defined by the Constitution and laws of the state, was deemed inadequate or not adapted to the adjudication of such a case, but because the Supreme Court of Errors was of opinion (1) that the congressional act impliedly restricts the enforcement of the rights which it creates to the federal courts, and (2) that, if this be not so, the superior courts are at liberty to decline cognizance of actions to enforce rights arising under that act, because (a) the policy manifested by it is not in accord with the policy of the state respecting the liability of employers to em-ployés for injuries received by the latter while in the service of the former, and (b) it would be inconvenient and confusing for the same court, in dealing with cases of the same general class, to apply in some the standards of right established by the congressional act, and in others the different standards recognized by the laws of the state.
“Wo are quite unable to assent to the view that the enforcement of the rights which the congressional act creates was originally intended to be restricted to the federal courts. The act contains nothing which is suggestive of such a restriction, and in this situation the intention of Congress was reflected by the provision in the general jurisdictional act ‘that the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the Constitution or laws of the United States.’ * * * The amendment, as appears by its language, instead of granting jurisdiction to the state courts, presupposes that they already possessed it.”

See, also, K. C. S. Ry. Co. v. Leslie, 238 U. S. 599, 35 Sup. Ct. 844, 59 L. Ed. 1478; Symonds v. St. Louis & S. E. Ry. Co. (C. C.) 192 Fed. 353.

It might be noted that the Sixty-Third Congress passed an act which provides:

“No court of the United States shall have jurisdiction of any action or suit by or against any railroad company upon the ground that said railroad company was incorporated under an act of Congress.” 38 Stat. p. 804, c. 22, § 5.

This act was approved January 28, 1915, and became effective April 1st thereafter. The ruling complained of was made in June, 1914. In order to support our conclusions, we are not required to give any effect to this last-named act, however, and the conclusions reached rest on the statute already in force and the decisions referred to above, to which might be added others in harmony therewith.

In its second assignment error is urged to the admission, over objection, of the answer of the plaintiff, while testifying on direct examination, to the question as to whether he experienced any suffering in mind and body while he was confined under the overturned engine, to which he answered:

“Why, the burning' of the steam and the heat from the steam caused me to suffer so that I was satisfied that I was going to bum up. I did not think that I could get loose.”

Appellant argues that this answer is subject to the objection that the suffering and injury complained of are not a proper element of damages, and is too remote and speculative to form the basis for damages, and cites the cases of Railway v. Linton, 126 S. W. 679, Hart v. Telegraph Co., 115 S. W. 639, and Railway v. Barry, 98 Tex. 248, 83 S. W. 5, in support of its contention.

In the first-named case, plaintiff sued to recover damages on account of the delay by defendant of the shipment of her son’s corpse, and she testified to the fear on her part that it would not be shipped at all, and that, if it were shipped, it would be in such a condition that she could not look at it. In the opinion by Justice Bookhout of the Fifth district, the court says:

“Mental anguish on her part resulting from' apprehension or fear that certain things may happen, which in fact did not, cannot be made a basis for a recovery.”

In the ease of Hart v. Telegraph Co., supra, where the plaintiff suffered mental anguish on account of the mistaken apprehension that the remains of his wife could not be shipped, but would have to be buried where she died, the same court uses practically the same language with reference to the mistaken apprehension and the mental suffering caused thereby ás an element of damages.

In the last-named ease, the plaintiff, with his family, were confined -in their house by an overflow due to the failure of the defendant company to provide sufficient sluices to allow the free passage of water, and the water was backed up to and over plaintiff’s lot, and the surrounding territory, and kept getting higher, so that it covered the floor of the house, and greatly frightened plaintiff’s wife, who was in a delicate condition, and caused plaintiff to believe that if he did not remove his wife from the house she would be drowned. The Supreme Court, in an opinion by Chief Justice Gaines, held that the damages as to this item of fright were too remote, and that the injury in this respect could not reasonably have been anticipated by the defendant company in the construction of its sluices and dump.

Without desiring to criticize either of these decisions, predicated as they are upon the particular facts enumerated, we do not believe the court erred in admitting the testimony of the plaintiff as above set out. Though it is held in some jurisdictions, and in some of the earlier cases in this state, that mental suffering, unaccompanied by physical suffering, cannot form the basis for recovery, yet the later decisions of our Supreme Court are to the contrary, as will be seen in the many telegraph cases. Stuart v. W. U. Tel. Co., 66 Tex. 580, 18 S. W. 351, 59 Am. St. Rep. 623, and others. In this case it was held that, if an actionable injury has been done to any person or property of the complaining party, he may recover as actual damages compensation for the proximate result of the wrongful acts. When injury to the feelings is such result, it forms an element of the actual damage. Both physical pain and mental suffering as elements for damages go back to a common source of right to compensation, the violation of a right secured by contract or the general law of the land. In the case of Railway Co. v. Corley, 87 Tex. 432, 29 S. W. 231, the Supreme Court held that fright and peril, unaccompanied by any injury to the person, will not sustain an action for damages, citing Railway v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am. St. Rep. 866, but sustained the judgment in that case, which was predicated, in part, in the trial court, on the physical pain and suffering, loss of blood, mental agony, and nervous shock, incident to the said injury. The trial court charged:

“If you find for the plaintiff, in assessing the damages you may take into consideration the physical pain and suffering, mental agony, peril, fright, and nervous shock, if any, incident to her injuries, and assess such sum- as you, in the exercise of a sound discretion, will determine as a proper compensation therefor.”

And in commenting on this charge, and the question as to whether or not it authorized a double recovery, one for “mental anguish” and the other for “fright and peril,” the court said:

“We think that from the whole case it is reasonably certain that the jury did not give double damages to the plaintiff for ‘mental anguish,’ by adding thereto damages for ‘fright and peril.’ The verdict is moderate, considering the injury and state of peril in which the lady was placed, for it is legitimate to consider the fright, alarm, or mental anguish she might have suffered by reason of her perilous position, in which she suffered injury to her person, ail of which was caused by the negligence of the defendant.”

In the case at bar we think the danger of burning up, to which plaintiff testified in the answer complained of, was imminent. The evidence shows that the scalding steam from the overturned engine was playing on the right leg of plaintiff, from his ankle to his hip and all around the hip, as he lay pinioned under this great weight, and that he was inhaling to some extent the hot steam, that his right hand was fast, and, as testified to by him:

“I could not get loose until I deliberately tore it loose. I could not get loose any other way, and the steam was burning me so I could not stand to stay in there, and I was stunned for about three or four minutes after the accident happened, and the steam played on my leg awful. It just felt like I deliberately poured hot water on my legs. * * * My leg was right up against the edge of the boiler head where the boiler head was riveted on to the end of the boiler, and the boiler at that time was just like a red-hot iron; there was about 200 pounds of steam pressure on it. During the time I was under there and before I was released, I felt as though I was going to be scalded any minute” — and here follows the answer complained of.

For the reasons given and the authorities cited, we overrule this assignment.

In its fourth assignment, complaint is made of the admission, over objection, of plaintiff’s testimony, to the effect that in his condition at the time of the trial he could not run a switch engine; the objection being that the question and the answer made thereto were argumentative, and the answer was the expression of an opinion and conclusion of the witness. The evidence discloses that plaintiff, in addition to his many years of service as a switchman, also had worked as a switch engineer for several years. We believe that, under the circumstances, it was admissible for plaintiff, having knowledge of the requirements of the employment inquired about, to testify that he was not in a physical condition to perform such service. Certainly, one injured would be permitted to testify that he could not walk, or that he could not run, or that he could not stand the strain of continuous physical labor, etc., and we believe for the same reason this testimony was admissible.

Nor do we believe there was error, as assigned in the third specification, in the admission, over objection, of plaintiff’s testimony to the effect that he had worked as switch engineer for several years, and knew how to run an engine. Although the measure of damages as to decreased ability to labor and earn money is generally determined by the earning capacity of the injured person at the time of the injury, and not to include the probability of increased ability to earn money arising from possible promotion, for, as held by some authorities, this would involve speculation and surmise on the part of the jury or court fixing the damages, and therefore would be speculative; yet, on the other hand, we do not believe the authorities limit the recovery for such decreased ability to labor and earn money to the salary or income received at the time of the injury. It seems to us the question is rather, what was the plaintiff’s earning capacity at the time of the injury, and, in order to establish this, evidence is admissible as to what he was actually receiving. It is held in Railway v. Boehm, 57 Tex. 152, that as an element of actual damages the diminished capacity of the injured party, mentally and physically, for development, whereby his gains might be increased in the future, might be considered. The court says:

“The charge as asked would have restricted the appellee’s right to recover such damage as would compensate him for pain and suffering, and for the ‘difference between what the plaintiff could earn before and what ho can earn now,’ and for loss of time. This would cut off all future increased disability resulting from the injuries received, although from such injuries, under the evidence, appellee may in the future become unable to perform' any labor, either physical or mental; it ignored the power in the future, but for the injuries received, to acquire a capacity, mentally or physically, to do moi-e profitable labor than the appellee was able to do at the time of the injury; it made the capacity for labor at the time of the injury the standard by which a life’s labor was to be estimated.”

See, also, Howard Oil Co. v. Davis, 76 Tex. 630, 13 S. W. 665.

Moreover, plaintiff pleaded “that he would have been able to obtain within a short time, but for the happening of the said accident,” a position of engineer, which would have yielded him much larger wages. The evidence complained of only went to the question of the present capacity of the plaintiff to perform the duties of a switch engineer. No evidence was introduced as to the salary of an engineer, and therefore it must be presumed that the jury in reaching their verdict did not consider the question of increased salary. Upon the introduction of this testimony and the further testimony, to the effect that a fireman was in line for promotion to the position of engineer, and that engineers received more pay than firemen did,, the court instructed the jury that they must not consider the question asked, nor the answer of the witness, to the effect that engineers are promoted from the ranks of firemen, and that engineers draw more salary or a greater salary than firemen. For the-reasons stated, we do not believe, at most, prejudicial error is shown.

The fifth assignment is directed to the-action of the court in permitting Dr. Kent V. Kibbie, witness for plaintiff, to testify over objection that he considered the condition of' the leg of the plaintiff shown to have been burned to offer a very strong probability of' an infection, inasmuch as it had a raw surface and a very poor circulation was shown, and that on this account the plaintiff would probably be subject to blood poison or erysipelas. In order to prove future consequences-of bodily injuries, it is only necessary to show that there is a reasonable probability of the occurrence of future ill effects of the injury. It was held in Railway Co. v. Harriett, 80 Tex. 73, 15 S. W. 556, that it was competent to prove by a surgeon and physician, who had-attended the plaintiff, that he had made a-, recent examination of the plaintiff, and to state his condition as affected by the injuries and their probable future effect upon the-health and strength of plaintiff.

Assignments 6, 7, 8. 9, and 10 are leveled' at what is claimed to be improper argument on the part of counsel for the plaintiff, and we are of the opinion that said assignments, in the main should be sustained. The remarks complained of will hereinafter be set out, in part, without noting under which assignment they come:

“Disten, gentlemen. We have no evidence here about those men. We know that they were guilty of a gross piece of carelessness here, because-here was a passenger train running on its schedule time, between 35 and 40 miles an hour between Pt. Worth and Dallas, loaded down with human freight, and there was — somebody had failed to close that switch, and how many people’s lives were in jeopardy. I say it was a gross act of negligence, and we don’t know, and the evidence don’t show, how many times these very men had been guilty of such acts before. * * * I' say that we have no evidence on that subject. They simply stop with the admission that they were guilty of negligence on this occasion and were discharged by the company, and one of them was afterwards reinstated; that is the admission. Now, gentlemen, we don’t know another thing. You don’t know another thing, gentlemen, whether those men were so overtaxed with work to do that they neglected it because of that very fact.
“There are cases and cases where under the law men lose their lives in the service of the railroad companies, also their limbs like this man has lost his, and yet the company is not responsible for it.
“The law is that if this man was working, on a defective engine that was in such condition that it was not roadworthy, and if he was compelled to go out on it, and he did not make objection, and he did go out upon it knowing that it was in bad condition, and he went ahead and kept his job, and it exploded and caused him to be killed, under the law he nor his heirs nor representatives could not recover one dollar, because ho had assumed the risk of it.
“But let me caution you of one thing, gentlemen, some jurymen will go out there and probably say: ‘Well, the man is entitled to all he sues for, I believe he is entitled to it.’ Or a man will say: ‘I think he is entitled to two-thirds of what he sues for, but,’ he says, ‘that they will pay this up if we bring in a small verdict, they will pay that off.’ ”
“The lawyers in this case don’t control the railroad company. The railroad company has the right to appeal from any judgment you may render; they can carry this case, if they have a mind to, to the Supreme Court of the United States. Now, gentlemen, don’t let any such suggestion as that have any weight with you. This man can live until this case is fought out. Give him what he is entitled to, and let the company’s lawyers take care of the balance of it. Don’t get the idea that if you cut down the verdict $5,-000 or $6,000 he will get it. Give him what he is entitled to, and, if they want to fight it out, it is up to them.
“In this case there is bound to be damages allowed. It is a question of arriving at the amount of those damages, and sometimes jurors in ignorance make the mistake of agreeing that they will take what each man things is right and then add that together and take one-twelfth of that. In other words, gentlemen, you are not permitted to get a verdict by lot, and I always think the district judge ought to tell a jury that, but they don’t. A verdict by lot is this: Each man goes out there and says: ‘We will take a vote on it. Each man will put on a piece of paper how much he thinks the man ought to have, and we will divide it by 12 and let that quotient represent our verdict, and we will agree in advance that that shall be the verdict.’ Now, if you should do that, and these lawyers find it out, and they would, they would set aside the verdict, and it would be worth nothing, because they would say it was arrived at by a species of lottery. But, on thé other hand, it is a very fair way of getting at a verdict if you do not agree in advance to be bound by it.”

Defendant having admitted its liability, the only question before the court and jury was as to the amount of damages. There was no allegation as to punitive damages. Therefore we think the argument that the defendant was guilty of “a gross piece of carelessness” and “a gross act of negligence,” and “we don’t know, the evidence don’t show, how many times these very men had been guilty of such acts before,” and “you don’t know another thing, gentlemen, whether those men were so overtaxed with work to do that they neglected it because of that very fact,” was improper, and was in the main out of the record, and was reasonably calculated, and probably did, conduce to influence the jury to render the large verdict it did. We think the suggestions in the argument that if the plaintiff was working on a defective engine, and one that was not roadworthy, and was compelled to go out on it and did not make objection, and that he went ahead and kept his job, and the engine exploded, causing plaintiff’s death, that neither his heirs nor his representatives could recover one dollar because he had assumed the risk, was inflammatory in its nature and contained the suggestion that, inasmuch as in many cases of the nature detailed the railroad did not pay and was not required to pay anything for the injury or death of an employs, in this cáse a large verdict should be rendered in order to punish the railroad for acts from the consequence of which they had escaped. Moreover, we do not think it was proper to suggest to the jury that they could go out, and, without agreeing beforehand to be bound thereby, reach a verdict by each putting down the amount he believed the plaintiff should recover and dividing the total by 12. We think this was tantamount to suggesting to the jury that those who were in favor of a large verdict could swell the verdict to ■ be reached by suggesting an amount larger than even they, themselves, thought the plaintiff entitled to. It is true that, as to two of the assignments at least, the court instructed the jury not to consider the argument, but it is not in every case that such instruction removes the prejudicial effect, and it would appear that counsel for plaintiff, either in a partisan zeal disregarded the instructions of the court theretofore made, or concluded that, even though the court might instruct the jury as to future improper arguments, such argument would have some weight with the jury, and the reversible error would be removed by the court’s instructions. Railway v. Wagner, 166 S. W. 24; Carter v. Walker, 165 S. W. 483; Railway v. Johnson, 125 S. W. 388; Railway v. Dickey, 56 Tex. Civ. App. 490, 120 S. W. 1135; Railway v. Musick, 33 Tex. Civ. App. 177, 76 S. W. 219.

There are other phases of this argument alleged to be improper which we could discuss with reference to its probable injurious effect; but, because of the length of the opinion already, we will content ourselves with what has been said and the presentation of a part of the remarks complained of.

For the reasons mentioned, we feel that this judgment should be reversed, and the cause remanded; and it is so ordered.

On Motion for Rehearing.

On this motion we have had the benefit of oral argument by both parties, and also extensive written argument, and have given appellee’s contention that we erred in our holding upon original hearing careful consideration. The earnestness of counsel for appellee bespeaks their sincerity, and the extensive citation of authorities and the rather copious extracts therefrom, their industry and research; but we are unable to reach a conclusion different from that expressed in our original opinion. Under the circumstances of this case, with an admitted liability, we believe that the arguments of counsel were reasonably calculated to, and, considering the large verdict, very probably did, have an undue influence upon the jury, and induced them to award plaintiff much larger damages than they would have if such improper argument had not been used.

But it is earnestly urged that, even if the argument of counsel is. conceded to be improper and shows error which would otherwise be deemed prejudicial, yet it could only affect the amount of damages awarded, and, unless this court should determine the verdict to be excessive, such error would be harmless; and that, should this court determine the verdict to be excessive, it should state in what amount the verdict is excessive and permit a remittitur. In support of the latter contention, counsel cite us to the cases of Railway v. Swann, 127 S. W. 1164; Railway v. Wagner, 166 S. W. 27; Producers’ Oil Co. v. Barnes, 120 S. W. 1023; De La Vergne Co. v. Stahl, 24 Tex. Civ. App. 471, 60 S. W. 319; Tel. Co. v. Perry, 30 Tex. Civ. App. 243, 70 S. W. 439; Railway v. Syfan, 91 Tex. 568, 44 S. W. 1064; Railway v. Marshall, 140 S. W. 509; Railway v. Stevens, 94 S. W. 397; Railway v. Conway, 44 Tex. Civ. App. 76, 98 S. W. 1070.

The citations noted certainly present a very respectable array of authority justifying the course suggested, and the writer personally would be inclined to follow such course in this case, but the majority do not agree with this view. They are of opinion that for this court to fix the amount of excess entering into the damages awarded, and to permit a remittitur for such amount as a condition of affirmance, would be in effect the substitution of the judgment of this court for the verdict of the jury, and the judgment of the trial court. This is not a case where the only question is the excessiveness of the verdict, and no other error is presented. In that instance our duty is defined by statute. But in this case there is other error presented, to wit, the improper argument. The authority of an appellate court to require a remittitur as a condition of affirmance is, in cases where the measure of damages is not fixed by law, a restrictive supervisory power and should be exercised only when the single question presented is that of an excess. In the words of Justice Gill of the First District in Railway Co. v. Nesbit, 40 Tex. Civ. App. 209, 88 S. W. 891:

“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 he 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 he 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 tho 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. * * * 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 remit-ter.”

In the cited case counsel bad argued to the jury not to give a small verdict, because such verdict could not be raised, but that, if it should render a verdict held to be too large, the appellate court would correct the same 'by cutting it down.

If we are correct in our conclusion that the language of the counsel in the closing argument was reasonably calculated to and probably did arouse in the minds of the jury passion or prejudice directed against the defendant, then in such condition of mind they would naturally be inclined not only to assess excessive damages for the injuries, which in the clear light of dispassionate and unbiased consideration were shown to have been inflicted, but would also have been inclined to give undue weight to the testimony with reference to the nature and extent of such injuries, and especially as to whether or not the plaintiff would be, by reason thereof, totally incapacitated in the future to labor and earn mnney; and be inclined to award damages punitive in character, because of the gross negligence and other reprehensible acts of defendant charged and insinuated in the argument, though such damages were not permitted by the charge of the court. In this cash both parties were entitled to the fair and unbiased consideration by the jury of both questions: First, as to the nature, extent, and future effect of the injuries suffered by plaintiff; and, second, as to what would be the reasonable compensation therefor. As has been said heretofore, the majority do not feel that the requiring of a remittitur as a contion of affirmance would, in the instant case, be the proper exercise of the function of this court under article 1631, Vernon’s' Sayles’ Texas Civil Statutes. Moreover, the majority gravely doubt that the statute referred to has any application in this character of case where the amount of damages as a whole is uncertain and the determination thereof is by the Constitution and statute placed in the exclusive province of the jury, and where the remittitur required would be binding upon one party at all events, and not binding upon the other except at his option; both parties alike being entitled, under constitutional provision, to the verdict of a jury on that issue. For the reason heretofore given the majority, at least, believe that the motion of appellee for additional findings, to wit, the amount of excess held to enter into this verdict, should be overruled, and it is so ordered. The majority do not wish to be understood as passing upon the specific question as to whether or not the verdict was excessive. They only hold that the argument complained of probably did have that effect.

For the reasons given, the motion for rehearing is overruled.

BUCK, J., dissents as indicated in conclusions.
      <S=»For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

      d&wkey;For other oases see same topic and KEY-NÜMBBR in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    HILL & MEREDITH v. FIRST STATE BANK OF HILLSBORO.
    (No. 7416.)

    (Court of Civil Appeals of Texas. Dallas.
    Nov. 20, 1915.
    Rehearing Denied Dec. 24, 1915.)
    1. Bills and Notes <&wkey;519 — Actions—Evidence — Sufficiency.
    In an action on a note which defendants indorsed before negotiation, evidence held to warrant a finding that they were primarily liable.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 1802; Dec. Dig,. <5&wkey;519.]
    2. Confusion of Goods &wkey;>ll — Commingling of Assets — Rights of Ceeditoes.
    A bank to which contractors were indebted being approached by defendants to negotiate a note given by the contractors refused to do so but consented to negotiate a new note executed by the contractors and on which defendants became primarily liable. The bank promised if possible to protect defendants under the securities which it held. The contractor and another firm which was indebted to the bank each mortgaged its mules and horses. A second mortgagee without consent carried off a number of the animals, and thereafter the bank, finding all of the animals commingled, foreclosed its mortgages thereon. It applied the proceeds of such sale to its own securities in such a manner as to leave defendants liable. Held, that recovery on the note by the bank could not be defeated on the theory that it had improperly commingled goods.
    [Ed. Note. — For other eases, see Confusion of Goods, Cent. Dig. §§ 12, 13; Dec. Dig. <&wkey;ll.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by the First State Bank i>f Hills-boro against Hill & Meredith. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    R. M. Vaughan and J. D. Abney, both of Hillsboro, for appellant. Morrow & Morrow, of Hillsboro, for appellee.

      Application tor writ of error pending in Supreme Court.

   RAINEY, C. J.

In disposing of this suit it is only necessary to state that appellee instituted this action to recover on a note executed by Bennett & Son and against Hill & Meredith, who are alleged to be primarily liable thereon. Appellants pleaded that they were not primarily liable, but only as in-dorsers on said note, and further that appel-lee had sold mortgaged property, the proceeds of which were sufficient to pay off and cancel the note sued on, but that said proceeds had been applied to the discharge of other notes and this one left uncanceled. The case was tried by the court without the intervention of a jury, and judgment rendered for appellee, from which Hill & Meredith appeal.

The court filed conclusions of fact, which we find are supported by the evidence, and here adopt the same, and .we here copy the first, second, third, fourth, sixth, eighth, and ninth subdivisions:

I. “I find that the First State Bank of Hills-boro, Texas, a corporation, on the 12th day of June, 1913, had notes against S; P. Bennett & Son, a firm composed of S. P. Bennett and J. P. Bennett, as follows: First note dated April 12, 1913, for $6,548; first note dated March 15, 1913, for $50; first note dated March 12, 1913, for $1,113.36; first note dated-, for $120. That on the same date it held notes against Key & Bennett, a firm composed of A. Key and S. P. Bennett, as follows: First note dated December 20, 1912, for $6,735.60; first note dated January 4, 1913, for $1,362.46; and an overdraft amounting to $856.81. That on the same date it held a note against S. P. Bennett dated March 28, 1913, for $5,402.69, and an overdraft against A. Key amounting to $38.61. That all of said notes bore interest at the rate of 10 per cent, per annum and carried a provision, providing for 10 per cent, of principal and interest as attorneys’ fees if placed in the hands of an attorney after default, and that on said date, June 12, 1913, all of said notes were past due, no payments either on principal or interest had been made and the same had been placed in the hands of attorneys for collection after default, and the plaintiff had become liable to pay the attorney’s fee specified in the notes, and the same had accrued against the makers of said notes. That all of said notes, except the note for $1,113.36 against S. P. Bennett & Son, and the note for $120 against S. P. Bennett & Son, and the note for $50 against S. P. Bennett & Son, were renewals of notes previously given.”
II. “That on July 6, 1912, S. P. Bennett executed and delivered to the plaintiff a chattel mortgage conveying property described as follows: ‘My entire outfit of stock composed of mules and horses now being used in grading an interurban railroad now being built by the Southern Traction Company from Dallas to Waco being 53 miles, weight from 1,100 to 1,400 pounds each, four years to ten years old; also seven head of horses, five to ten years old, weight from 1,300 to 1,700 pounds.’ Said mortgage was given to secure the payment of a note in favor of the plaintiff, executed by S. P. Bennett, flue October 6, 1912, for $-; also to secure any and all other sums of money that the said S. P. Bennett might owe to the plaintiff at that time or subsequently during the year 1912, and aE notes executed to the plaintiff during that year.”
III. “That on August 28, 19.12, the defendants, S. P. Bennett & Son, executed a chattel mortgage to plaintiff, covering 76 head of mules, each four to ten years old, and 8 head of horses* each four to ten years old, consisting ofl the entire outfit of work stock employed, by the said
S. P. Bennett & Son in grading the interurban road from Dallas to Waco. Said mortgage was executed to secure all indebtedness due by the said parties to the said bank during the years 1912 and 1913 and all notes executed by them during", said time.”
IV. “That each of said mortgages was registered in the counties of Hill, EEis, and Dallas in accord with the law for the registration of chattel mortgages.”
VI. “That on the 3d day of October, 1912, S. P. Bennett executed a chattel mortgage to W.
T. Hale to secure an indebtedness of $12,446.30, which mortgage was duly registered in the county court of Hill county and Dallas county on the 8th day of October, 1912, and covered 98 head of mules.”
VIII. “Shortly after the giving of the mortgage of Bennett to Hale, mentioned above, without the knowledge or consent of plaintiff, W. T. Hale removed 50 head of the mules covered by the plaintiff’s mortgage to another state. At the time the mules were taken by Hale the Bennett & Son mules and S. P. Bennett mules were all together, and were not identified or distinguishable, so far as the plaintiff was concerned, one from another. The plaintiff learned that Hale had taken these 50 mules in July, 1913, for the first time, and at that time in undertaking to foreclose its mortgage found the remainder of the mules and horses, on which it had a mortgage in Dallas county. They were thrown together at that time and the plaintiff was unable to distinguish which were the S. P. Bennett & Son mules and horses and which were the S. P. Bennett. mules and horses, the plaintiff having no previous knowledge of their having been thrown together, and on the 12th day of June it took possession of said mules and horses, being 78 head of mules and 18 head of horses and sold them under its power of sale, at private sale for $12,000.”
IX. “The $12,000 proceeds of the sale of the mules and horses were applied as follows:
In satisfaction of one note of S. P. Bennett & Son. $7,322.85
And of another note of S. P. Bennett & Son for. 56.36
—and applied $4,620.82 on the note of S. P. Bennett, dated March 28, 1913, for $5,492.60, which was a renewal of a previous note held by the bank at the time it took the mortgage from S. P. Bennett. This left unpaid the attorney’s fees, principal, and interest, the S. P. Bennett '& Son note for. $120, the entire indebtedness ofi Key & Bennett and of A. Key, and the balance of $1,548.50 of S. P. Bennett, and also left unpaid the principal, interest, and attorney’s fees on the note dated March 7, 1913, signed S. P. Bennett & Son for $1,113.36.”

The first and second assignments present the question whether or not appellants were primarily liable as makers or only liable as a mere indorser. While there was a contradiction in the testimony we think the court rightfully held the appellants liable as original promisors on the note.

W. R. Masterson, president of the appellee bank, testified as follows:

“With reference to the Hill & Meredith matter, it came up in this way: In a conversation that I had with Mr. Hill he stated that he and Mi". Meredith owned this note of $1,113.36, I think, payable to the firm of Hill & Meredith, and he offered to discount it to the bank. He offered to take $1,000 for the note of $1,113.36. That transaction was had with me as an official of the bank. I told Mr. Hill that he couldn’t use the note. Hill & Meredith were customers of the bank at that time. I told him that under our contract that we couldn’t give him any protection on that note, and while we had advanced them all the money that we cared to and would, that if we could give them the benefit of any protection, we would do it, and that if we could we would not charge them discount; that it probably could be arranged differently in the form of another note, so that we might be able to give them some protection according to our contract with Key & Bennett or according to the security we have. I think I said it at that time that we would consider the matter and probably discuss it with our attorneys and would see him again about it. I think that was the substance of the conversation at that time. After that I saw Mr. Hill again in the bank; my recollection is he came to the bank and took it up with us further. I told him that if he would put it in this form, have Mr. Bennett execute a note in favor of the bank and him sign it or indorse it, that we would advance the money on it, and in that way we could probably give him some protection; that we would discount the note and advance Hill & Meredith the money. I filled out the note and it was signed by S. P. Bennett & Son, per Jim Bennett, and Mr. I-Iill then signed it on the back, on the back of the note, and I placed the money to their credit; that is, less the discount of $13. The note was given on March 7th and did not begin to draw interest until March 20th, I believe. I had been familiar with the handling of commercial paper and notes before that and had knowledge of what effect their writing their names on the back of that note would be. The first note that they presented to me was payable to HiE & Meredith, but this one that I finally took was made payable to the First State Bank, and the name Hill & Meredith was written by Mr. Hill on the back of the note. That was done before I advanced the money; it was all done about the same time. It was upon that kind of agreement that I agreed to let Hill & Meredith have the money. I would not have bought the first note that was brought to me with Hill & Meredith’s indorsement on it.”

Hill, in effect, says that there was nothing said about it, except indorsing it as an in-dorser. The court was warranted in accepting Masterson’s version of the matter, which shows that the bank did not accept the note with HiR as a mere insurer, but that Hill & Meredith were to be primarily liable.

The contention of appellants in substance is, that the court erred in finding against appellants for that appellee held two mortgages, one by S. P. Bennett & Son and the other by S. P. Bennett. That appellee sold under the mortgage 93 head of mules and horses, which were commingled and sold together, and the proceeds of said property that was included in the mortgage executed by said Bennett & Son was never ascertained so as to make a proper accounting of the proceeds realized on account of the sale of the horses and mules included in said mortgage executed by S. P. Bennett & Son. It seems doubtful that appellants had such an interest in the mortgages as to rely on the doctrine of confusion or commingling of goods. Masterson, according to his testimony, only promised to protect them under the securities held by the bank, if he could do so, and it seems that the proceeds realized were not sufficient for that purpose after the indebtedness of the bank was satisfied. It was further shown that there was no intention of the bank to act wrongfully in the commingling of the mules and horses. When they took charge of the said mules and horses they were all together, and they had no means of knowing which belonged to S. P. Bennett '& Son and those belonging to S. P. Bennett. Besides 50 head of the said stock had- been taken under a second mortgage by one Hale and carried out of this state, and those left were not sufficient to pay off the indebtedness of Bennett & Son and S. P. Bennett to the bank. Again the mortgage did not identify which of said stock belonged to either party. Also there was nothing to show how many of said stock that belonged to said S. P. Bennett & Son and how many that belonged to S. P. Bennett were sold under the mortgage. The two defendants owed the bank more than the horses sold for, and there is nothing showing that appellee acted wrongfully in any way; nor is there any claim by the Bennetts to appellee’s action in the application of the proceeds. This being the condition of the matter we think the appellants are not in a position to seek the relief sought by them.

The judgment is affirmed.
      (gn^For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    SOUTHWESTERN PORTLAND CEMENT CO. v. MORENO.
    (No. 506.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 16, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. MASTER AND SERVANT <&wkey;278 — SUEIiTCXEN-ot of Evidence — Safe Place to Work.
    Evidence in a servant’s action for injury from an explosion in the master’s cement plant held to support a finding of negligence in failing to furnish a safe place to work.
    [Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. &wkey;278.]
    2. Trial <&wkey;260 — Requested Instructions— Given Instructions.
    In a servant’s action for injury, the refusal of defendant’s charges that negligence must be proven and cannot be assumed, and that the plaintiff must prove the specific acts of negligence alleged before he can recover, was not error, where the court charged affirmatively that the jury must believe from a preponderance of the evidence that the explosion which injured plaintiff was caused as charged in the petition.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    8. Trial <&wkey;191 — Instruction—Assumption oe Facts.
    In a servant’s action for injury from an explosion in defendant’s cement plant, alleging negligence in not furnishing a safe place to work, in that defendant allowed explosive coal dust, etc., to accumulate, an instruction on the assumption of risk that, if the jury found that the accumulation of coal dust, causing the explosion, was an ordinary incident of the work, and if the defendant exercised ordinary care to avoid its accumulation, plaintiff could not recover, but that, if there were practical means of preventing its accumulation in quantities to cause an explosion-which defendant fails to use, the plaintiff did not assume the risk, was not objectionable as assuming the accumulation of coal dust as alleged.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. &wkey;191.]
    4. Master and Servant <&wkey;293 — Instruction —Safe Place to Work.
    Such instruction was not objectionable as-imposing upon defendant a greater burden than was required by law with regard to what it should have done to provide a safe place for work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. <&wkey;293.]
    5. Evidence <&wkey;481 — Opinion Evidence — Safe Place to Work — Similarity op Conditions.
    In a servant’s action for injury from defendant’s failure to furnish a safe place to work, in that it allowed explosive coal dust, etc., to accumulate, opinion of a chemical engineer that the conditions of grinding coal, found when he examined defendant’s plant, did not render it safe, and as to means which might have been discovered to be practicable and useful in removing the danger of ignition, and that the pulver-izer was the initial source of danger, was admissible, where the conditions at the time of his: inspection were the same as at the time of the: accident.
    [Ed. Note. — For other eases, see Evidence,. Cent. Dig. §§ 2248-2254; Dec. Dig. &wkey;481.J
    6. Evidence <&wkey;481 — Opinion Evidence — Sape Place to Work.
    In such action where the engineer had testified as to how close a pulverizing machine was to the fire in the drying furnace, which nearness was the initial source of danger, his answer to a question as to different means discovered to render such place safe for work, following his testimony as to conditions rendering the place unsafe, and his testimony that if forced ventilation to draw off the air and dust, etc.,'had been used, it would have made it safer without isolating the pulverizer, was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2248-2254; Dec. Dig. &wkey;481.]
    Appeal from District Court, El Paso County ; W. D. Howe, Special Judge.
    Action by Juan Antonio Moreno against the Southwestern Portland Cement Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    S. P. Weisiger, of El Paso, for appellant. F. G. Morris and S. B. Gillett, both of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   HARPER, C. J.

J. A. Moreno brought this suit against the Southwestern Portland Cement Company for damages for personal injuries suffered by him by reason of the negligence of the defendant company in failing to furnish him a safe place to work, under the following allegations: That defendant is a private corporation, and had more than five persons in its employ at the same time; that plaintiff was an employé of defendant company; that while engaged in the discharge of his duties, there was an explosion in the cement plant, of the defendant, caused by the accumulation of coal dust in the kiln-room, etc., or place where plaintiff was put to work; that plaintiff’s injuries were caused by the negligence of the defendant, its agents, employés, etc., due to the want of ordinary care, either in the failure to inspect the operation and ventilation of the place where plaintiff was put to work, or in the failure to ventilate said place, thereby allowing explosive gas, coal dust, etc., to be and accumulate. Further alleged that plaintiff does not know the cause of said explosion; cannot state the cause thereof with more particularity ; that same may have been occasioned from some other cause unknown to plaintiff. Defendant answered by general and special denials; that plaintiff was an experienced man of mature years; that he had worked at the place where the explosion occurred long prior thereto, and must have known the danger. Pleaded assumed risk. Resulted in a verdict by jury for $1,000.

Findings of Facts.

The defendant is a private corporation, and operates a cement plant near El Paso, Tex.; the plaintiff was an employs of the defendant, and while passing by the door of a tunnel of one of the buildings of defendant, in the discharge of his duties assigned to him, pushing a wheelbarrow of mud, an explosion occurred in the said tunnel, and by reason of the force of the explosion, plaintiff was thrown across the wheelbarrow and dragged or pushed' along on the ground for some distance, and was thereby injured.

Binford testified:

“I am secretary and superintendent of defendant company and am familiar with the place where plaintiff was injured. At the place where he was injured, the building is in the same condition as it was at the time when his injuries occurred. I don’t believe there has been any change in that part of the building since that time. I was not in town at the time the accident occurred; personally, I know nothing of the accident, nor as to where it occurred, except from the reports. I have a copy of the report of the accident. So far as 1 know, the physical conditions are the same in that part of the building where he was injured. The dryer is on the ground floor, and the grinder is on the same floor.”

Referring to a sketch of the tunnel, he said:

“I don’t know just where the plaintiff was working. I have indicated by ‘X’ as some place where he was working”

—and, referring to the sketch of the building, described the local conditions as applied to the accident, the building, the grinding mills for pulverizing the coal, the dryer and the cooler, etc., and further testified:

“A coal grinding plant is one of the parts of a cement plant that has always received a great deal of attention, because of the extreme fineness to which we have to pulverize the coal. * * • It causes more or less trouble because the coal available in this country is a semibituminous or heavy lignite coal, and it has a tendency to fire, after being pulverized, quicker than some other coal. * * * Coal, in itself, without being mixed with air, or other conditions, is not explosive by itself. In other words, the coal 1 could be. ground and laid upon the floor and lay there without being disturbed or mixed with air and would not explode, but it is the surrounding conditions, the mixture of certain air and gases that causes it to explode. There is a small stoker fire under the dryer, which is fed by an automatic stoker.”

Oliver Dawson, who qualified as a chemical engineer, testified:

. “I have visited, the premises where the explosion occurred twice. The first time I was told the plaintiff was in the hospital; the second time was about two weeks ago. I don’t know about the conditions at the time of the explosion.”

He then described the condition and position of the grinder and dryer, and testified:

“I heard the testimony of the plaintiff. I casually examined the grinder. It is my opinion, based upon my experience and knowledge, that the conditions under which the grinding of the coal there were not safe, because the carbon laden air was in contact with a possible ignition. The ignitial source of danger was the coal pul-verizer. I do not say that the conditions when I saw it were the same as when the accident occurred or not. I only say that if the conditions were the same, it was not safe.”

.Moreno, plaintiff, testified as to how the injury occurred:

“I was passing by the door when the explosion occurred, when I was right opposite the motor. The grinder is in the direction where the ex-ptosion came out from. I don’t know how they dried the coal. I didn’t see any fire in there where the dryer was. I don’t know the conditions of the room where the dryer and mixer were, with reference to dust. I have seen it there before the explosion; there was dust in the room, dust all over there. I did not know that conditions of a room like that, filled with coal dust, as I have described, was dangerous.”

First. Was the evidence quoted sufficient to support the finding of the jury that the exact negligent act charged by the plaintiff to be the cause of the accident was the proximate cause of the accident and consequent injury to plaintiff? Is there any evidence that defendant failed to exercise ordinary care in providing plaintiff with a safe place to work? If not, then defendant’s motion to instruct a verdict for it should have been sustained. While the evidence is largely circumstantial, it tends to prove the exact negligence alleged, and warranted the verdict. The evidence shows that the coal dust existed at all times when the plant was in operation ; that the close proximity of the fire for drying to the pulverizer was the only thing which probably could have ignited the dust to cause the explosion, and exclude the idea that there was any other cause, and there is no attempt to account for the accident in any other way, although defendant by its employes were in full charge of the entire workings of the plant. The testimony that the coal utilized for the purposes of the plant was an inferior grade and had a tendency to fire, after being pulverized, quicker than other coal, and the further testimony of the expert that, in his opinion, the defendant had not taken the proper precautions to prevent explosions, and other facts attendant upon the immediate explosion, are sufficient to warrant the finding of the jury that there was a lack in ordinary care npon the part of defendant to furnish a safe place to work.

Second and Third. The court did not err in refusing special charges offered by the defendant, to the effect that the negligence must be proven, and cannot be assumed, and that plaintiff must prove the specific acts of negligence alleged by him before he can recover, because the court charged affirmatively in the main charge that the jury must believe from a preponderance of the evidence that the explosion was caused by the accumulation of coal dust, etc.,- as charged in the petition.

Fourth. Charges that the court erred in the seventh paragraph of its main charge: (a) In that it assumes the accumulation of coal dust as plaintiff had alleged without proof thereof; (b) and imposes upon defendant a greater burden than is required of it by law with regard to what it must do to provide a safe place for its employes to work. The paragraph complained of is as follows:

“With reference to the defense of the assumption of risk by plaintiff, the jury are instructed that if they shall find from the evidence that the accumulation of such explosive material, as plaintiff alleges accumulated and caused said explosion, if the same did accumulate, was an ordinary incident to the kind of work in which the plaintiff was engaged when the employer exercises ordinary care to avoid the accumulation and confinement of such explosive material in a condition to cause an explosion, they will find for the defendant, but if, on the other hand, they shall find from the evidence. that experience has proved that there are practical means of avoiding the accumulation of such explosive materials, if such accumulation there was in rooms where persons may work, or about which they may work, or that there are practical means well known to the persons engaged in such work whereby such combustible material may be so rapidly eliminated as to prevent its gathering in such quantities as to cause an explosion, and that the defendant failed to use such means of avoiding danger to the plaintiff in or about the place wherein he was set to work, then the plaintiff did not assume the risk of failure on the part of defendant, if the -defendant did fail to use such ordinary means and care of avoiding such danger to the plaintiff, and in determining whether the plaintiff should have known of the danger existing about where he was working, the jury will take into consideration whether or not such knowledge was such as an ordinary laborer, working about such premises, should understand, or was information which would not, in the nature of things, be known to others than m,gn of science.”

We fail to see how the charge is subject to the criticisms made, and appellant has not pointed out how or why.

Fifth and Sixth. Charge that the court erred in permitting, witness Dawson to testify:

“That it was his opinion that the conditions which he found, under which the grinding of coal was carried on at the time he examined the premises, was not such as to render it safe, because the carbon laden air was in contact with a possible source of ignition.”

And to testify as to the means which have been discovered by. experience of scientists to be practicable and useful in removing such dangers as existed at defendant’s plant, and to further state that the pulverizer was the initial source of danger, the proposition being that it was not shown that the conditions were the same at the time of inspection by the witness as at the time of accident. We think the evidence quoted of Binford and plaintiff show clearly that the conditions had not changed.

The second proposition is that the fact that scientists may have discovered other practicable methods than that in use by the defendant at the time of the explosion was immaterial, because the mere fact that there may have been other ways believed by others to be less dangerous would not show, or tend to show, negligence. Appellant has not referred us to the exact bill of exceptions in support of this assignment, but we take it that the one following is the one relied upon:

“The witness for plaintiff, Oliver B. Dawson, being on the witness stand, was asked by the attorney for the plaintiff the following question: What means have been found by experience of scientists engaged in these matters to be practicable and useful in removing such dangers as you found existing there? To which question the defendant objected on the ground that it imposes a greater burden than the law does — we are not required to use the best, even if they are known, but are only required to use reasonable care— and because it has been repeatedly held in this state that the master is not required to use the best-known device at all, nor are they the insurers of the safety, but all that is required is that he use reasonable care to keep the place in a safe condition, and if defendant has done that, the fact that there are better devices known that might have been used is a matter wholly'immaterial, and the question is tending to place upon the defendant a burden greater than the law requires, which objections were by the court overruled, and the witness was permitted to answer the question as follows: ‘To isolate the initial source of danger.’ ”

It will be noted that while the question called for “different means discovered,” the answer is simply in line with the general testimony given by him in describing the conditions existing at the plant which, in his opinion, rendered it unsafe. He had testified as to how close the pulverizing machine was to the fire in the drying furnace, and the answer complained of is simply that this was the initial source of danger, so the effect of the testimony is that the pulverizer and the fire should have been further apart to make the place safe.

For the same reason, we think there was not error in permitting the witness to testify that:

“If forced ventilation or suction to draw off the air and dust, etc., had been used, it would make it safer without isolating the pulverizer”

—as urged in the seventh.

Finding no reversible error in the record, the cause is affirmed.
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