St. Louis, B. & M. Ry. Co. v. Cole

• Decision Date: 20 March 1929
• Docket Number: (No. 1026-5205.)
• Citation: 14 S.W.2d 1024
• Parties: ST. LOUIS, B. & M. RY. CO. v. COLE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

Page 1024

14 S.W.2d 1024

ST. LOUIS, B. & M. RY. CO. v. COLE et al.^*

(No. 1026-5205.)

Commission of Appeals of Texas, Section B.

March 20, 1929.

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

Suit by Lillian A. Cole and others against the St. Louis, Brownsville & Mexico Railway Company. Judgment for plaintiffs was affirmed by the Court of Appeals , and the defendant brings error. Affirmed.

E. H. Crenshaw, Jr., of Kingsville, and Davenport, West & Ransome, of Brownsville, for plaintiff in error.

E. W. Napier, of Wichita Falls, and Rabel, Napier & Fristoe, of Harlingen, for defendants in error.

LEDDY, J.

Defendants in error, the surviving wife and minor children of Charles A. Cole, were awarded a judgment against plaintiff in error for damages, based on findings of the jury in answer to special issues that said Cole's death resulted from plaintiff in error's negligence in causing one of its locomotives to collide with the automobile in which Cole was riding at a point where a public road crossed one of its side tracks.

The principal question urged in this court is that a new trial should have been granted on account of the misconduct of the jury in considering the verdict rendered in this case. The misconduct complained of was in three particulars, viz.: (1) That there was an agreement by the jurors that defendants in error were entitled to recover before any of the special issues were answered by the jury; (2) because one of the jurors was personally familiar with the scene of the accident, and gave his opinion thereon; (3) that the jury, in fixing the amount of damages awarded, discussed and considered the probability of an appeal by the railway company.

Upon the hearing of the motion for new trial, eight of the jurors were interrogated. Six of these testified either that the jury agreed defendants in error were entitled to recover, or at least expressed an opinion to that effect, before any of the special issues were answered. The foreman and one other juror testified directly and positively that no such discussion was had; that, when they first began their deliberations, they took up the special issues, and answered them one by one without any agreement or expression of opinion that defendants in error were entitled to recover.

The trial court, in overruling the motion for new trial, made no express finding on this conflicting evidence. In deference to this ruling, we must indulge the presumption that the court accepted the version given by the jurors who testified that the particular misconduct complained of did not occur. Duerler Mfg. Co. v. Eichhorn, 44 Tex. Civ. App. 638, 99 S. W. 715 (writ refused); Corralitos Co. v. Mackay, 31 Tex. Civ. App. 316, 72 S. W. 624.

It has often been held that the trial court, in considering evidence offered on the hearing of a motion for new trial, has the same latitude in passing on the credibility of the witnesses, and of the weight to be given to their testimony, as a jury has on the original trial. H. & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Bradley v. Texas & Pacific Ry. Co. (Tex. Com. App.) 1 S.W.(2d) 861; Chicago, Rock Island & G. Ry. Co. v. Swann, 60 Tex. Civ. App. 427, 127 S. W. 1164.

With reference to the second ground of misconduct, it was shown that the juror Borchelt stated in the jury room during the deliberations that he was familiar with the case, and would prefer that everybody express themselves before his opinion was given, because he was at the scene of the accident immediately after it occurred. In accordance with his suggestion, the other eleven jurors gave their opinion, and he then expressed himself. It was not shown, however, that this juror communicated to any other juror any fact outside of that which had been testified to by the witnesses on the trial of the case. It was also developed upon the hearing of the motion for new trial that, when this particular juror was questioned on his voir dire, he informed the attorney for the railway company he had maintained a creamery for a number of years near the crossing where the accident occurred, and was therefore very familiar with the situation at the crossing, and he also gave him the information that he was at the scene of the accident very quickly after it occurred. It does not appear that any challenge for cause was made against this juror, and the railway company did not see fit to exercise a peremptory challenge to prevent him from becoming a member of the jury.

Plaintiff in error, having accepted the juror with full knowledge of his familiarity with the situation where the accident occurred, must be held to have waived whatever effect such knowledge had upon this particular juror's verdict.

Not only is there no evidence showing that the information possessed by the juror because of his personal knowledge of the situation was in any way communicated to any other member of the jury during its deliberations, but it was not even shown that the juror himself was in any way influenced or guided by such knowledge in the reaching of his conclusion. Under these circumstances, we do not think the misconduct complained of constitutes such error as to justify us in holding that the trial court abused its discretion in refusing to grant a new trial on account thereof.

With reference to the third ground of misconduct, one of the jurors testified that it was mentioned in the jury room that, if the jury gave too much, the...