legitimate manner, and that burden must not be increased by deliberately inviting the jury to bring in excessive verdicts and speculate on the Court of Civil Appeals allowing the amounts to stand or cut them down to reasonable sums. The jury in this instance was told that it was the duty of the trial judge to reduce excessive verdicts, and that was true, but it was not exercised in this case. Trial judges seem adverse to exercising the power intrusted to them in connection with verdicts, and usually shift the responsibility, shifted to them by the jury, to the Court of Civil Appeals, the court of ultimate resort in such matters. To reasonably reduce a verdict as this was secured seems to be doing what counsel expected and maneuvered to obtain, and the court in the Nesbit Case refused to entertain the proposition to cut down the verdict. This court, however, has in several instances sought to remedy the injury inflicted by improper argument by compelling a remittitur. Producers' Oil Co. v. Barnes, 120 S. W. 1023; De La Vergne Co. v. Stahl, 24 Tex. Civ. App. 471, 60 S. W. 319; W. U. Tel. Co. v. Perry, 30 Tex. Civ. App. 243, 70 S. W. 439. The argument in this case, as in those cited, could have affected nothing except the amount of the verdict. There were over half of the jury that at first favored a verdict for $10,000 and that, under the facts, we deem sufficient to compensate appellee for the loss of his toes on one foot and the other injuries received.

[8] In his closing argument to the jury, ap-¡ onerous duty of passing upon the question pellee's counsel used the following language: of excess in verdicts when brought up in a "I want this jury to give the plaintiff every cent that it possibly can, under the pleadings and evidence. You cannot make a mistake in giving him too much, under the evidence. If you do, the court has the power, and it is his duty, to cut it down; but, if you make it too low, even if your verdict should be for $5, there is no power in this court to add even a single postage stamp. Therefore I again ask you to make your verdict as high as you possibly can under the evidence, as you can make no mistake in that direction." The language is decidedly improper, and should have been rebuked by the court. Using the expression "under the pleadings and the evidence" did not eradicate the poison that was injected by the appeal to place the responsibility of the amount of the verdict on the trial judge. A very similar argument was condemned in the case of Railway v. Nesbit, 40 Tex. Civ. App. 209, 88 S. W. 891. In that case the attorney said: "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. * 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." The Court of Civil Appeals said: "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. 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." In that case the trial judge, by both verbal and written instruction, sought to prevent the jury from considering the language. In this case no effort was made to withdraw the language from consideration, but objections to it were overruled. The size of the verdict shows an active re-ed without going between the engine and the sponse to the appeal of appellee's counsel. car. If the opinion can be construed into Appellee claims there was no error in the holding that a railroad company is under no argument, because the jury were advised to obligation to keep its coupler in such condibring in a large verdict "under the pleadings tion as to couple by impact, without the neand the evidence," but that could not remove cessity of any one going between the ends the force of the argument to the effect that of the cars, it is in direct conflict with state the jury should shift the responsibility of a and federal decisions which construe the act heavy verdict to the trial judge. In the Nes- of Congress. Thornton, Federal Employer bit Case the jury was told that it was their Act, p. 293; Railway v. Voelker, 129 Fed. duty to assess the damages "in accordance 522, 65 C. C. A. 226, 70 L. R. A. 264. "The with the charge of the court and the evi- true intent and meaning of the statute is not dence." merely that the cars, etc., used in moving

*

The twenty-fourth assignment of error, which seeks to present improper conduct of the jury in arriving at a verdict, is not followed by such a statement as is required by the rules. It has been held time and again that a reference to a bill of exceptions in the record is not sufficient. Griffin v. State, 147 S. W. 328; Gibson v. Oppenheimer, 154 S. W. 694.

The case of Morris v. Railway, 158 S. W. 1055, is cited by appellant as deciding that a defective coupler that required adjustment before it would couple did not come under the condemnation of state or federal law. The decision in that case can be justified only by the fact stated that it was not shown that the coupler could not have been adjust

automatic couplers of the description therein mentioned, but also that such couplers shall be in such condition as to be used automatically while such cars are so engaged." Winkler v. Railway, 4 Pennewill (Del.) 80, 53 Atl. 90; United States v. Railroad, 177 Fed. 801, 101 C. C. A. 15; United States v. Railway (D. C.) 160 Fed. 696. See numerous cases reported in Appendix to Thornton Fed. Emp. Liability & Safety App. Acts, pp. 396 to 710. We do not think that the Court of Civil Appeals of the Sixth District intended to hold anything except that the proof in that case failed to show that the coupler to the engine could not have been adjusted without going between the engine and car. In this case, however, the proof is positive that it was absolutely necessary for appellee to go between the engine and car to adjust the coupler. Appellant in its pleadings practically admitted that the coupler could not be adjusted without going between the engine and car.

[9] If a remittitur of $5,000 is filed by appellee within ten days, the judgment will be affirmed; otherwise, it will be reversed, and the cause remanded.

may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation of such person or corporation so operating such railroad of any statute for the safety of employés contributed to the injury or death of such employé." The statute is too plain to require construction. If appellant did not have the coupler on its engine so arranged that it could be adjusted from the outside, it violated the law, and it does not matter what appellee may have done, if the defective coupler contributed to his injury, and appellant is liable. Thornton, Safety Appliance Act, § 222; Johnson v. Railway, 178 Fed. 643, 102 C. C. A. 89; Mondou v. Railway, 223 U. S. 1, at page 49, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. As said by the Supreme Court in Railway v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061: "If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it."

do v. Central R. R. Co. (C. C.) 180 Fed. 832, and 192 Fed. 901, 113 C. C. A. 379.

By the act of 1908, Congress made the doctrine of comparative negligence applicable to On Motion for Rehearing. all cases based on the negligence of the railAppellant states its inability to find any road and contributory negligence of the infact or facts showing any act of negligence jured party, except in cases where the injury on its part which created a necessity for ap- is inflicted or the death caused through a viopellee placing his foot between the engine and lation of the safety appliance act. In the the car in order to couple it. Appellee swore last class of cases the defense of contributory to the necessity, and appellant, in its brief, negligence is wholly abolished. Richey, Fed. seeks to justify its failure to have the coup- Employers' Liability Act, p. 39; Horton v. ler arranged so that it could be coupled from Railroad, 157 N. C. 146, 72 S. E. 958. The the outside by the claim that appellee should same rule applies to assumed risk, and auhave stopped the engine, made the adjust thorities on that subject are also authorities ment, and then started it up again. The on the question of contributory negligence. courts do not seem to agree with the conten-Freeman v. Powell, 144 S. W. 1033; Colasurtion of appellant; but it is held that the safety appliance act is violated if, "in order to open the knuckle when preparing the coupler for use, it was reasonably necessary for a man to place part of his body, his arm, or his leg in a hazardous position." United States v. Railway (D. C.) 167 Fed. 695. If the law was violated by appellant, as, in effect, is admitted, then, no matter how guilty of contributory negligence appellee may have been, appellant is liable. "The statute concerning the coupling devices requires that the automatic coupler in use must be operative for each car as to the device of that particular car, so that an employé of a railroad company would not have to go to another car to make the uncoupling of the car in question." Railway v. United States, 168 Fed. 1, 93 C. C. A. 393; U. S. v. Railway (D. C.) 162 Fed. 403. It is not contended that the locomotive had any device on the outside by which its coupler could be regulated, the only claim being that appellee should have stopped the engine in order to adjust the coupler of the car. The statute of the United

It was not shown that there was a hand lever on the engine, and therefore appellee could not use it, and using the hand lever on the car to which the engine was to be coupled, if there was such lever, would not have adjusted the defective coupler on the engine. It may have been contributory negligence for him to kick the defective knuckle, but that would not be a defense, because the defective coupling on the engine contributed to the injury.

Excerpts are made from what is denominated the "stenographer's transcript," but no such document has been filed in this court or will be filed in it. This cause has been considered on the agreed statement of facts, approved by the trial judge, and the effect of such statement of facts cannot be impaired or destroyed by a document not filed among the papers, and which has no place among the papers. The statement of facts bears out the statement of this court that appellant was permitted to introduce all

fective coupler on the engine. It was the latter that was out of adjustment, and pulling the hand levers of all the cars in the train would not have adjusted the engine coupler. The evidence showed that it could not be adjusted except by a man going between it and the car.

coupler on the engine. The record fails to Although the conductor was told by appellee show that any testimony offered by appellant how he was hurt, he made no examination was withdrawn by the court from the jury. of the locomotive. He said that he left that In the ninth assignment of error it is stated for the inspector, and that employé was not that "the undisputed evidence in this case in a position to inspect because the engine shows that the coupling apparatus on the car had been sent off. Appellant did not offer to had been adjusted prior to the time of the show that the coupler on the engine could accident, and it was, at the time of the ac- have been adjusted from the side, but virtucident, equipped with couplers coupling auto- ally admits that it could not have been admatically by impact." There is no bill of ex-justed, except by stopping it. Pulling a levception as to any refusal to permit testi-er on the car would not have fixed the demony as to the condition of the coupler on the engine. As a matter of fact, the engineer testified about the coupler on the engine, and the inspector about the coupler on the car. The inspector also stated that the engine and car should have coupled automatically by impact, and, "if they do not couple with the automatic, they are not in proper condition." And yet, in the face of that testimony by one of its own witnesses, appel-tributory negligence was enacted. The cases lant says: "There is not one line of evidence in the record which shows that appellant did not have its cars properly equipped with couplers that would couple by impact; if there be such evidence, we have overlooked it." The evidence of the inspector, taken in connection with the uncontroverted evidence that the car and engine did not couple by impact, shows that the couplers were not in proper condition. Appellee also swore that the coupler on the engine was not in proper condition. He fixed the coupler on the car, which was also out of order, and, in attempting to fix the coupler on the car, he fell and was injured. The evidence is ample to show that the couplers were not in repair.

Appellant quotes largely in its brief from cases which arose before the law as to con

cited by appellant in its motion have no bearing on this case. In Southern Ry. Co. v. Snyder, 205 Fed. 868, 124 C. C. A. 60, it is distinctly held that the accident occurred before the act of 1908. That act absolutely removes contributory negligence as a defense in cases of injuries arising from defective safety appliances provided for in the employers' liability act.

[11] The petition alleged that appellant was engaged in interstate and intrastate commerce, and that it "used on said railroad in interstate commerce and intrastate commerce a certain engine and a certain car; and it became and was the duty of plaintiff then and there to couple the aforesaid engine and car together." The allegation was sufficient to show that appellant was engaged in interstate commerce.

[10] The petition alleged "that the defendant was negligent in having and permitting the couplers on said engine and car to be so that they would not couple automatically, [12] In connection with the claim that as required by law," and that was sufficient to there was no allegation as to defect in the charge a failure to comply with the safety couplers that brought them within the scope appliance act. A failure to have couplers of the statute, we copy the following from that would couple automatically by im- the petition: "Plaintiff avers that the coupact was a violation of law, and was negli-pler attached to said engine and car would

gence per se.

The Congress of the United States, and not the courts, have passed the law that "effectually ties the hands of every carrier in the state." Our construction of the law may be a harsh one, but, as said by the Supreme Court in the Taylor Case, hereinbefore cited: "It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written,

unless it is clearly beyond the constitutional

power of the lawmaking body."

not couple automatically by impact, as required by law; and, for the purpose of making said coupling, it became necessary for plaintiff to stand upon the footboard of said' engine, between said engine and car, and to shove the knuckle of the coupler on said engine so as to make the coupling as afore

said."

The motion for rehearing is overruled.

JESSE FRENCH PIANO & ORGAN CO. et
al. v. ELLIOTT.

(Court of Civil Appeals of Texas.
April 2, 1914.)

Texarkana.

FAILURE TO GIVE SECURITY OR MAKE AF-
FIDAVIT.

It is significant that the inspector examin-1. APPEAL AND ERROR (§ 395*)-EFFECT OF ed the car to which the engine was to be coupled, but did not inspect the coupler that was responsible for the accident. He testified fully as to the condition of the car coupler, but not one word as to the engine.

Under Rev. St. 1911, art. 2098, providing that, where appellant or plaintiff in error is unable to pay or secure the costs of appeal, he may appeal upon making strict proof of his

sued out by the piano and organ company. as to the correctness of the conclusion reachBut we cannot consider the objections there- ed by the trial court that it appeared, as a to urged by the former, because she failed matter of law, that the piano and organ to comply with the law which required that company had converted the two Starr pianos. she should either file a bond or, in lieu there- [4-7] By the terms of the mortgage coverof, should make proof of her inability to pay ing the Starr pianos, Elliott was authorized the costs of an appeal. Article 2098, R. S. to take possession thereof "wherever they 1911; De la Vega v. League, 2 Tex. Civ. App. may or can be found, and sell the same at 252, 21 S. W. 565; Bank v. Carper, 28 Tex. private or public sale to the highest bidder," Civ. App. 334, 67 S. W. 188; Stafford v. in the event Miss Hopkins made default in Blum, 7 Tex. Civ. App. 283, 27 S. W. 12; the payment of the debt it secured, or in the Jamison v. Land Co., 77 S. W. 969; Ander- event, at any time before the indebtedness son v. Silliman, 92 Tex. 560, 50 S. W. 576. matured, Elliott "felt unsafe or insecure." At the time she filed her petition for the writ, It is settled that such a stipulation in a mortMiss Hopkins filed an affidavit made by her gage is valid, and that the mortgagee, by virattorney before a notary public that she was tue thereof, may take possession, if he can unable to pay the costs of the appeal or do so peaceably, of the mortgaged property any part thereof, or to give security there- without the mortgagor's consent. Singer for. The statute referred to required that Mfg. Co. v. Rios, 96 Tex. 174, 71 S. W. 275, she should make proof of her inability to 60 L. R. A. 143, 97 Am. St. Rep. 901. It appay the costs before the county judge of the pearing from the testimony that the indebtedcounty where she resided, or before the court ness secured by the mortgage had matured, which tried the cause. Filing the affidavit the effect of the decision cited is to show mentioned above did not satisfy the require- that Elliott was entitled to the possession of ment of the statute. Graves v. Horn, 89 Tex. the pianos as against Miss Hopkins. Was he 77, 33 S. W. 322; Bargna v. Bargna, 123 also entitled to the possession thereof as S. W. 1143. On the day the cause was sub- against the piano and organ company, withmitted to this court, Miss Hopkins filed with out first paying charges demanded by them the clerk here her affidavit, made before as storage, etc., thereon? Clearly he was the county judge of Dallas county, that she not, if it was true, as that company contendwas unable to pay the costs of the appeal ed it was, that he had agreed that the pianos or any part of same. But the filing of this might be placed with it to be repaired, tuned, atudavit cannot be given any effect. The etc. But there was no testimony showing statute (article 2104, R. S. 1911) authorizing Elliott had so agreed. On the contrary, it the filing of a new appeal bond to cure a conclusively appeared that the piano and ordefect in one previously filed does not au- gan company acquired possession of the pithorize the filing of a new affidavit to cure anos without either his knowledge or condefects in an affidavit previously filed in lieu sent. Therefore a right in that company to of such a bond. Washington v. Haverty retain possession of the pianos until the Furniture Co., 136 S. W. 832; Wood v. Rail- charges it claimed against same were paid way Co., 43 Tex. Civ. App. 590, 97 S. W. 323. cannot be predicated on an agreement on the Under the circumstances stated, we must sus- part of Elliott. Can it predicate such a tain appellant's motion to dismiss the writ right, as against Elliott, upon the fact, if it of error sued out by Miss Hopkins. was a fact, that Miss Hopkins had delivered the possession of the pianos to it for the purposes stated? We think not. It knew that Miss Hopkins had conveyed the property to Elliott to secure her indebtedness to him, and therefore that she could not by her act, and without his consent, create in its favor a lien and rights superior to his. If however, it should be said that the law is that a person, with notice of a mortgage, containing a stipulation like the one in question, in possession of the mortgaged property under a contract with the mortgagor to repair, etc., same, is entitled to retain possession thereof until his charges for such repair, etc., are paid, as against the mortgagee, we would feel constrained to hold that this is not that kind of a case, because it does not appear, from any testimony in the record, that Miss Hopkins delivered the possession of the pianos to the piano and organ company for such a purpose, or, indeed, that she delivered possession of same to it at all. It appeared that Miss Hopkins had been

The piano and organ company insisted in the court below, and insists here, that the testimony showed that Elliott and Miss Hopkins placed the five pianos with it to be repaired, tuned, and sold; that thereafterwards neither of them had a right to the possession thereof as against it until its charges for the storage, etc., were paid; and that, it appearing its charges had not been paid, it was not guilty of a conversion as against Elliott, when, on his demand therefor, it refused to deliver the pianos to him. Its contention, so far as it applied to the three Ivers & Pond pianos, was sustained by the court below, and the jury was instructed to find, and did find, in its favor on account of the storage, etc., of those pianos. The contention, so far as same applied to the two Starr pianos, was overruled; and, on the theory that the undisputed testimony showed that said piano and organ company had unlawfully converted those pianos, the jury was instructed to find against it for their value.