Missouri, K. & T. Ry. Co. of Texas v. Barber

• Citation: 209 S.W. 394
• Decision Date: 05 March 1919
• Docket Number: (No. 35-2684.)
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. BARBER.
• Court: Texas Supreme Court

209 S.W. 394

MISSOURI, K. & T. RY. CO. OF TEXAS v. BARBER.

(No. 35-2684.)

Commission of Appeals of Texas, Section A.

March 5, 1919.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by J. D. Barber against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (163 S. W. 116), and defendant brings error. Reversed and remanded.

A. S. Coke and A. H. McKnight, both of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for plaintiff in error.

E. J. Smith, of Denison, and Freeman & Batsell, of Sherman, for defendant in error.

STRONG, J.

This is an action by J. D. Barber against the Missouri, Kansas & Texas Railway Company of Texas for damages for personal injuries alleged to have been sustained by him while in the service of defendant company. The trial resulted in a verdict and judgment in favor of plaintiff, which was affirmed by the Court of Civil Appeals. 163 S. W. 116.

The principal assignment of error is based upon the action of the trial judge in giving to the jury certain verbal instructions after they had reported that they were unable to agree and asked to be discharged. It is disclosed by the record that the jury retired to consider their verdict on Wednesday morning. They reported to the court at noon Thursday that they were unable to agree, and the court thereupon instructed them verbally substantially as hereinafter quoted, and sent them back for further deliberation. At adjourning time Thursday afternoon, the jury again reported to the court that they could not agree and again asked to be discharged. The court thereupon repeated in substance the verbal instructions given at the noon hour, which were as follows:

"The Court: Have you been able to agree yet?

"The Foreman: No sir.

"The Court: Now, in order to restate, as I did this morning — I know you gentlemen appreciate the importance of arriving at a verdict, and I appreciate the responsibility on you. The court is now, you see, where it can't turn a wheel. As I stated this morning, the only way we can transact business is through verdicts of the juries, because this is a jury case, and nobody but a jury can render a verdict. I have no power. I don't want the power of doing it. The law makes it your duty, and I think the law wisely leaves it with the juries. Now, I don't know — you see if you were to quit now and couldn't agree, we would have to get another jury at the next term of the court. I don't know whether we could get a better jury than you are or not. Now, I appreciate the fact that you have differences of opinion, and men of pronounced views and independent thoughts — they will have differences of opinion about a great many things. We very often agree, and generally agree, to disagree, but in this matter you all have to agree on something, or else, of course, if that is an impossibility, then I would have to discharge you. I don't feel that — you see you just took this case yesterday, I believe about 1:30 o'clock, and I don't feel like, with the great expense that it will be to try this case over — under the circumstances, I don't want to punish you, gentlemen; I sympathize with you. I know some of you probably want to be at home with your families and looking after your business, and I certainly sympathize...