POWELL, P. J.
On October 29, 1924, there went to trial in the Tenth judicial district court of Galveston county, Tex., before Hon. J. C. Canty, judge presiding, the personal injury suit of William D. Wright, Jr., v. G., C. & S. F. Ry. Co. The pertinent portions of plaintiff's petition read as follows:
"That in the course of the work of repairing and renovating one of the defendant's locomotives, which said work the plaintiff was doing and assisting, the foreman in charge of said work instructed this plaintiff to go to the storeroom of the defendant located in a building near by, and from the storekeeper procure a piece of copper wire of the size known as `16 gauge,' and further instructed this plaintiff to straighten said wire and bring same to him in order that said piece of wire might be used in doing the work which this plaintiff and said other employés were doing.
"That plaintiff did, as he was instructed by his superior, go to the storehouse of the defendant, and procure from the storekeeper a piece of wire, which was represented to him by said storekeeper to be `16 gauge' copper wire, said piece of wire being 5 or 6 feet in length. That the storekeeper of the defendant could not find in the storehouse of the defendant the spool upon which the wire was usually and customarily kept, and picked the piece of wire which he gave to plaintiff from a tangled mass of wire, breaking the said piece of wire from said mass by beating the wire with a heavy weight. That, when plaintiff received said piece of wire, same was bent and curled, and that it became necessary for him to straighten same, which he did attempt to do while he was carrying said wire back to the place where he had been working, and that while he was attempting to straighten the said wire, one end of said wire recoiled and struck plaintiff in his right eye, injuring and damaging same in the manner and to the extent as is hereinafter fully set out and described.
"That plaintiff had never before handled `16-gauge' copper wire, if such was the wire delivered to him by the storekeeper of the defendant, prior to this date, and did not know that same would recoil, and that the failure of the defendant, its agents, servants, and employés to inform and notify the plaintiff that said wire would recoil was negligence, and that said negligence was the proximate cause of the injuries and damages by plaintiff sustained.
"That plaintiff is informed, and verily believes, that the wire which he had been instructed to get, and which was delivered to him by the storekeeper of the defendant, was not in fact `16-gauge' copper wire, but was wire of another and different metal. That, had the same been `copper' wire, same would not have recoiled, and would not have struck the plaintiff in his eye and injured him, and that the failure of the storekeeper of the defendant to give to plaintiff `copper' wire was negligence, and that said negligence was the proximate cause of the injuries and damages by plaintiff sustained.
"That plaintiff, as a result of the negligence of the defendant, as aforesaid, has lost the vision and use of his right eye, and will be forever blinded and disfigured because thereof," etc.
The answer of the railway company is lengthy, and consists of general and special exceptions, general denial, and special answers.
The cause was submitted to the jury upon special issues, and the answers of the jury thereto were as follows: (1) That the piece of wire which struck the plaintiff in his eye
was "copper wire"; (2) that the plaintiff attempted to straighten the piece of wire delivered to him before handing the same to Mr. Young; (3) that the plaintiff was acting within the ordinary course of his employment in attempting to straighten said wire before delivering the same to his superior, Mr. Young; (4) that the injury sustained by the plaintiff was the result of the ordinary risks of the service, as that term had been defined to the jury by the court; (5) that plaintiff had been damaged in the sum of $6,000; (6) that the plaintiff was not guilty of contributory negligence in receiving the wire from the hands of the storekeeper, or in the manner of handling it afterward and before delivering it to Mr. Young.
Aforesaid answers were returned into open court on October 31, 1924.
On November 1, 1924, the railway company filed its motion for entry of judgment in its favor on the ground that it had not been convicted of negligence in the manner complained of in the petition.
On November 18, 1924, Wright's counsel filed a motion asking that a mistrial be entered. Said motion reads as follows:
"Now comes William D. Wright, Jr., plaintiff in the above cause, and states to the court that the above entitled and numbered cause came on to be heard, and was tried by a jury and before your honor, on the 31st day of October, 1924, and that, because of the inconsistencies of the answers made by the jury to the special issues submitted to them by your honor on the trial of said cause, this honorable court has been confused and not able to understandingly ascertain how judgment and for whom judgment should be rendered upon the answers of the jury to the special issues submitted, and, after duly considering all of said special issues, and the answers of the jury to the same, this plaintiff comes and shows to your honor that no legal or correct judgment could be rendered in said cause which could comply with the axiom of law that substantial justice must be reached in the trial of all causes, and for this reason, and other reasons hereinafter set out, plaintiff prays that your honor enter a mistrial of this cause, and let it stand for trial on the docket in this court in due order, to the end that substantial justice may be done both the plaintiff and the defendant.
"Plaintiff comes and further alleges that he has been informed, and verily believes, that many of the jurors, perhaps a majority or all of them, intended that the answers to the special issues submitted would be sufficient for your honor to render a judgment for the plaintiff in the sum of $6,000, as found by the jury, and that said jurors, or many of them, intended that the judgment and verdict should be that plaintiff have and recover of defendant the sum of $6,000 for the damages and personal injuries sustained by him in the loss of the sight of his right eye, and for other damages proved, and that the jurors found said facts to be true first, and began downward from the special issues, and answered the special issues from downward to upward, from the last issue up to the first, believing that the first, second, and third issues were immaterial to plaintiff's right of recovery of said sum of $6,000 as aforesaid.
"Plaintiff further alleges that many of the jurors were unlearned men, not sufficiently educated to understand legal definitions, liable to be, and were, confused, and did not intend to answer said issues in such a way as to prevent absolute recovery by the plaintiff of the damages awarded to him by the jury, to wit, $6,000.
"Plaintiff is frank to confess to this honorable court that he does not believe that any legal judgment can be rendered and entered by your honor in this cause that would stand a judicial test either for the plaintiff or the defendant on account of the apparent inconsistency of the answers of the jury to some of the special issues.
"Plaintiff prays that this motion be set down for hearing to be fully determined by this honorable court at such a date and time in the present term as may be convenient to your honor, so that substantial justice may be done in this suit on final trial, and that he may be permitted to have process issued for such witnesses as may be necessary for your honor to hear and determine the merits of this motion."
The district court thereupon considered each of aforesaid motions, and on November 20, 1924, made the following order thereon:
"On this 20th day of November, 1924, came on to be heard the motion of the defendant, Gulf, Colorado & Santa Fé Railway Company heretofore filed herein for the entry of judgment in its favor on the answers of the jury to the special issues to it submitted by the court on the trial of this cause, and at said time came on also to be heard the motion of plaintiff, William D. Wright, Jr., heretofore filed herein to set aside the answers of the jury to the special issues to it submitted by the court on the trial of said cause, and declare a mistrial of this cause; and the court, after hearing said motions and the argument of counsel in support thereof, is of the opinion that defendant's motion for judgment in its favor should be denied and overruled, and that plaintiff's motion to set aside the answers of the jury to the special issues to it submitted and declare a mistrial should be granted, because there is, in the opinion of the court, an irreconcilable conflict in the answers of the jury to the special issues to it submitted.
"It is therefore ordered, adjudged, and decreed by the court that defendant's motion for the entry of judgment in its favor on the answers of the jury to the special issues to it submitted by the court on the trial of this cause be denied, and that plaintiff's motion to set aside the answers of the jury and declare a mistrial of this cause be granted, for the sole and only reason that there is in the opinion of the court an irreconcilable conflict in the answers of the jury to the special issues to it submitted.
"[Signed] J. C. Canty, Judge."
Alleging that there was...
