St. Louis Southwestern Ry. Co. v. Robinson

• Decision Date: 16 June 1926
• Docket Number: (No. 816-4481.)
• Citation: 285 S.W. 269
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ROBINSON.
• Court: Texas Supreme Court

285 S.W. 269

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ROBINSON.

(No. 816-4481.)

Commission of Appeals of Texas, Section A.

June 16, 1926.

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

Suit by B. A. Robinson against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (274 S. W. 263), and defendant brings error. Judgments reversed, and cause remanded to the district court.

E. B. Perkins and Adair Dyer, both of Dallas, and Crosby & Estes, of Greenville, for plaintiff in error.

Ocie Speer, of Austin, and C. B. Randell, of Sherman, for defendant in error.

BISHOP, J.

Defendant in error, Robinson, instituted this suit against plaintiff in error, St. Louis Southwestern Railway Company of Texas, for personal injury alleged to have been caused by its negligence, and recovered judgment in the sum of $5,000, which was affirmed by the Court of Civil Appeals. 274 S. W. 263. He claimed that his injury caused him to be afflicted with hernia, from which he suffered, and would continue to suffer, pain.

Error is assigned on the action of the trial court in overruling motion for new trial complaining of misconduct upon the part of the jury. The testimony of jurors on consideration of the motion shows that a vote was taken upon the issue of liability before there was any discussion of the facts, and all of the jurors were in favor of a verdict for defendant in error. They then took a vote on the amount of damages to be awarded, with the result that one of the jurors, Mr. Lynch, favored a verdict for $1,000, while the other jurors were in favor of amounts ranging from $4,000 to $10,000. After these votes were taken by the jury, and while they were deliberating upon the amount of damages to be awarded, the conduct complained of occurred.

Mr. Davis, one of the jurors, testified:

"We got to talking about what a man suffered, and I just told them I knew what I suffered; that there was times that I suffered very much with rupture and would have to lay down in the field with my heels up against the plow or something, and I said I had to shun heavy work, and any sudden jerk or twist of the body it hurts a fellow, and I said it hurts me. I couldn't hardly tell you so you would know unless you were ruptured yourself.

"Q. You told the jury so they would know, what did you say as to what effect that would have on you when you got that kind of jerk or lift of that kind and what you would have to do when that occurred?" A. Get to hurting very bad and lay down with the heels up.

"Q. Did you tell the jury that? A. I think I did. I don't recollect what Mr. Wheatley said about his condition, only he was telling he had to be careful about what he done. He said his rupture was in I think. His didn't bulge out; it did at first, and went back in. I pulled down my breeches and exhibited the truss I wear. I didn't tell them I was affected the same way the plaintiff was affected. I told them I didn't know how he suffered the way he was ruptured, but I knew how I did. I have a rupture that bulges out. Yes; I described the effect the rupture has on me, the work I do. Mr. Wheatley said the effect it had on him was something similar, he told how it hurt him in various ways."

"The charge from the court if we rendered a verdict in favor of the plaintiff to pay the man for his suffering and the suffering he might go through in the future and that is a hard thing for anybody to get at at all, and I just merely explained that I knew something about a rupture of my own, that...