Texas Midland R. R. v. Brown

• Decision Date: 16 March 1921
• Docket Number: (No. 201-3270.)
• Citation: 228 S.W. 915
• Parties: TEXAS MIDLAND R. R. v. BROWN.
• Court: Texas Supreme Court

228 S.W. 915

TEXAS MIDLAND R. R. v. BROWN.

(No. 201-3270.)

Commission of Appeals of Texas, Section A.

March 16, 1921.

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

Action by Aubrey Brown, by next friend, against the Texas Midland Railroad. Judgment for plaintiff affirmed by Court of Civil Appeals (207 S. W. 340), and defendant brings error. Judgments of Court of Civil Appeals and of trial court reversed, and cause remanded.

S. W. Marshall, of Dallas, and Terry & Brown, of Terrell, for plaintiff in error.

B. Q. Evans, of Greenville, and W. A. Shields, of Eastland, for defendant in error.

TAYLOR, P. J.

Defendant in error, Aubrey Brown, sued the Texas Midland Railroad, plaintiff in error, for damages for personal injuries. The jury returned a verdict in his favor, and judgment was entered thereon, which was affirmed by the Court of Civil Appeals. 207 S. W. 340.

Defendant in error was injured in unloading a car of coal placed by plaintiff in error on its spur track near a building owned by Reeves Manufacturing Company, located on the north side of Jordan street in the city of Greenville.

As we have concluded the judgment should be reversed and the cause remanded on account of remarks made by the district judge to the jury, and the action of the deputy sheriff in thereafter taking the jury for a walk by the scene of the accident, it is unnecessary to state further the nature of the suit.

The tenth, eleventh, twelfth, thirteenth, and fifteenth assignments complain of the remarks of the district judge and the action of the deputy sheriff in substance and effect as follows: The jury retired to consider their verdict about 3:30 o'clock on the afternoon of Friday, July 5th. About 6 o'clock p. m. the same day they reported they could not agree. It was ascertained by the court that they had agreed on liability, but could not agree upon the amount thereof. They were then excused until the following morning at 8:30 o'clock. On Friday night the judge who had presided during the trial was called away on account of illness of his father. Before leaving he requested the judge of a neighboring district to receive the verdict of the jury if they desired to report during his absence, stating that they had already agreed upon the question of plaintiff in error's liability. On the afternoon of July 7th (Saturday) the deputy sheriff advised the judge who was present for the purpose of receiving the verdict that the jury had requested that the court be called, in order that they might report that they could not agree. The deputy suggested to the judge that he "might lecture them a little, and it might enable them to arrive at a verdict, to which the court assented." The judge inquired, after the jury were before him, if they had agreed. On being told they had not, and that they did not think they could agree, he stated to them that the judge who had presided during the hearing of the case had not asked him to discharge them, but to receive the verdict; that he would not feel warranted in discharging them; that in his own court "he had made it a rule...