Day v. Gulf. C. & S. F. Ry. Co.

• Decision Date: 23 February 1927
• Docket Number: (No. 7052.)
• Citation: 297 S.W. 501
• Parties: DAY v. GULF. C. & S. F. RY. CO.
• Court: Texas Court of Appeals

297 S.W. 501

DAY v. GULF. C. & S. F. RY. CO.

(No. 7052.)

Court of Civil Appeals of Texas. Austin.

February 23, 1927.

Appeal from District Court, Bell County; Louis H. Jones, Judge.

Action by E. B. Day against the Gulf, Colorado & Santa Fé Railway Company. Finding on special issues for defendant. From a judgment overruling plaintiff's motion for a new trial, plaintiff appeals. Affirmed.

Walker W. Saulsbury and Winbourn Pearce, both of Temple, for appellant.

Lee, Lomax & Wren, of Fort Worth, and W. W. Hair, of Temple, for appellee.

BAUGH, J.

Appellant sued appellee for damages for personal injuries alleged to have been caused by the negligence of a fellow employee in allowing a cross-tie to fall on appellant while they were transferring cross-ties from one car to another in the yards at Temple, Tex. The case was submitted to a jury on special issues, on which they found against appellant. This appeal is from the action of the trial court in overruling appellant's motion for a new trial on the grounds of misconduct of the jury in answering the special issues. The special issues pertinent to our inquiry here are as follows:

"Special Issue No. 2. Do you find from a preponderance of the evidence that in handling and moving said cross-tie, at the time, defendant's employee was guilty of negligence, as that term has been herein defined? Answer: No."

"Accident: By this word is meant such an unexpected catastrophe occurring without any one being to blame for it, that is, without any one being guilty of negligence in doing, or omitting to do, the particular thing which caused such casualty."

"Special Issue No. 4. Bearing in mind the foregoing instruction, do you find from the preponderance of the evidence that the slipping of the tie and the falling of the same upon the foot of plaintiff was an accident? Answer: Yes."

"Special Issue No. 6. Now, bearing in mind the foregoing instructions, at what amount do you assess the plaintiff's damage. Answer the amount that you find from the evidence in dollars and cents. Answer: $3,500."

Only the testimony of the jurors in the hearing upon the motion for a new trial accompanies the record. And we are met at the outset with the contention of appellee that, in the absence of a statement of facts and of fundamental error, we can only affirm the trial court's judgment, because, even if misconduct of the jury be conceded, we have no way of knowing that the appellant was injured, for the reason that the judgment entered may have been the only judgment that could have been rendered under the evidence.

It has been uniformly held that questions relating in any manner to the evidence, its legality, sufficiency, admission, or exclusion, to rulings by the trial court on special exceptions to pleadings, to the submission of issues, or to the giving or refusing of charges, will not in the absence of a statement of facts be considered on appeal. See article 2243, Vernon's R. S. 1925, and numerous annotations thereunder. And, in the absence of same, every reasonable presumption must be indulged consistent with the pleadings to support the judgment. Parrish v. Parrish (Tex. Civ. App.) 280 S. W. 901 and cases there cited. In Dennis v. Neal (Tex. Civ. App.) 71 S. W. 387, though the record was subsequently perfected by bringing forward the statement of facts, a consideration of which reversed the original disposition of the appeal, Judge Streetman of this court announced the following:

"It is also insisted that the verdict of the jury was not unanimous, and that one of the jurors only consented to render the verdict because he was sick, and unable to longer endure confinement with the balance of the jury; and because he had understood that the court would keep the jury together indefinitely, and not discharge them until they brought in a verdict. This assignment is based upon an affidavit of the juror. In the absence of a statement of facts, it cannot be ascertained that any injury was occasioned on this account, because the evidence may have been of such character as would have authorized a peremptory instruction. In addition to this, however, it is well settled that a juror cannot thus impeach his verdict. Railroad Co. v. Gordon, 72 Tex. 52, 11 S. W. 1033; Bank v. Bates, 72...