San Antonio & A. P. Ry. Co. v. Lester

• Court: Texas Supreme Court
• Writing for the Court: Brown
• Citation: San Antonio & A. P. Ry. Co. v. Lester, 89 S.W. 752, 99 Tex. 214 (Tex. 1905)
• Decision Date: 23 October 1905
• Parties: SAN ANTONIO & A. P. RY. CO. v. LESTER.

89 S.W. 752

SAN ANTONIO & A. P. RY. CO. v. LESTER.

Supreme Court of Texas.

October 23, 1905.

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

Action by Joseph L. Lester against the San Antonio & Aransas Pass Railway Company. A judgment in favor of plaintiff was affirmed by the Court of Civil Appeals (84 S. W. 401), and defendant brings error. Reversed.

Houston Bros. and R. J. Boyle, for plaintiff in error. H. C. Carter and P. J. Lewis, for defendant in error.

BROWN, J.

We copy the conclusions of fact filed by the Court of Civil Appeals, as follows: "Appellee was injured, in the sum found by the jury, by jumping from the locomotive of which he was in charge, as engineer, which was about to crash into the rear of a freight train standing on the track. The danger was imminent and appellee jumped from the locomotive to save his life. The collision took place between the engine on which appellee was riding and the caboose of the standing train through the negligence of appellant in not having a light burning in the cupola of the caboose, and in failing to send a flagman back to warn appellee of the danger of a collision with the standing train. The train into which the locomotive ran had been standing on the track where it was struck for 35 minutes before the collision, and no effort had been made to prevent the train that was following it from running into it. The rules required that a flagman should be sent back under such circumstances to warn approaching trains. Appellee had his train under control as required by the rules, and could have stopped it in time to have prevented the collision, if the light had been in the cupola of the caboose or the flagman had been sent out to notify him of the presence of the train."

At the trial, when the jury were being examined as to their qualifications to serve as jurors, the defendant objected to four of the jurors, because they had answered that neither of them had paid the poll tax due by him to the state of Texas prior to the 1st day of February, 1904. The court overruled the objection, and the defendant took and filed the following bill of exceptions: "Be it remembered that upon the trial of the above styled and numbered cause the following proceedings were had: While the jurors upon the panel, to wit, 24 men, were being tested as to their general qualifications on the 8th day of February, 1904, counsel for defendant asked whether all the jurors had paid their poll tax, due and payable before February 1, 1904, and the jurors Sidney Sheppard, Fred Fischer, W. Schultze, and one Elam all answered that they had not paid said tax. Thereupon counsel for defendant asks that said jurors, Sheppard, Fischer, Schultze, and Elam, be excused and dismissed, because they were not qualified jurors under the laws of the state of Texas. It was shown to the court by the records of the county collector of Bexar county, Texas, that 7,402 persons in Bexar county had paid their poll tax, which was due and payable before February 1, 1904, before said 1st day of February, 1904, and that 1,350 persons in Bexar county had proved their exemption from the payment of such poll tax and obtained their exemption certificates before February 1, 1904. The court overruled said objection, and refused to excuse and dismiss said jurors from the panel, to which action and ruling of the court the defendant then and there in open court excepted. Thereupon the jury list, with said jurors upon it, was tendered to this defendant, and this defendant was required to accept same as the panel of qualified jurors, and, defendant having exhausted the 6 peremptory challenges accorded it by law, the following jury was selected to try the case: S. B. Johnson, Gus Hahn, P. C. Langford, W. G. Linartz, Sidney Sheppard, Fred Fischer, Otto Wehmeyer, Albert Fey, Louis Wetz, W. S. Sessor, W. Schultze, and Janes Stayers; the juror Sheppard being subsequently excused on account of sickness, and the jurors Fred Fischer and W. Schultze being permitted by the court, over defendant's objections as above set out, to sit upon the jury trying this case. To which actions and ruling of the court defendant then and there in open court excepted as aforesaid, and tenders this its bill of exception No. 1, and asks that the same be signed, filed, and made a part of the record herein. This bill is signed with the qualifications that I knew in Bexar county there were three district courts, each having five terms, or a total of 39 weeks to each court per year, and each court having 34 jury weeks during each year, and the jury commissioners for each court selected on an average of 40 or 45 men for each jury week. In addition to the district courts, the county court of Bexar county has six terms each year, with an average of 24 jury weeks each year, and the jury commissioners for the county court selected on an average of 20 men for each jury week. I know that in the city of San Antonio and Bexar county there were many nationalities, viz., Germans, Italians, Mexicans, negroes, Polanders, and others, who are qualified voters, but are not eligible for jury service because of their inability to read and write English, and many others who are exempt from jury service on account of other statutory grounds. I was of the opinion that, when the large number of jurors which are required to serve in the various courts in Bexar county are considered, to excuse persons who had not paid their poll tax would interfere with the proper conduct of the courts, and, further, if jurors who have not paid their poll tax were excused, it is doubtful if the requisite number of persons could be found, taking into consideration the legal exemptions, sickness, absence, and just excuses of the other eligible jurors, within Bexar county, to perform the jury service of the various courts. In view of the foregoing, I exercised my discretion and held the jurors qualified. A. W. Seeligson, Judge Fifty-Seventh District." The jury returned a verdict in favor of the plaintiff below, and the court entered judgment for $10,000 damages, which judgment the Court of Civil Appeals affirmed.

The challenge of the four jurors by the defendant, as shown in the bill of exceptions, was made at the proper time under article 3220, Revised Statutes, and presented a good ground if those jurors were not exempted and had failed to pay the poll tax prior to the 1st day of February, 1904. The qualifications of jurors were then prescribed by article 3139, subd. 1, Rev. St. 1895, as amended in 1903, which reads as follows: "Art. 3139. No person shall be qualified to serve as a juror who does not possess the following qualifications: (1) He must be a citizen of the state and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county, but whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes cannot be found within the county, the court may dispense with the requirement of the payment of poll taxes as a qualification for service as a juror." The answers of the four jurors will be better understood by stating the question and answer as if addressed to each separately, thus: "Have you paid your poll tax, due and payable before February 1, 1904?" To which each answered: "I have not paid said...