297 S.W. 873 | Tex. App. | 1927
Appellant insists the judgment is erroneous and should be reversed, because it says, (1) the evidence did not warrant a finding that a nail protruded from the floor of the car as charged by appellee; (2) if the evidence did warrant such a finding, there was neither pleading nor proof that appellant knew or was chargeable with knowledge that the nail was so protruding; (3) the jury was guilty of misconduct in that, in determining what their findings should be, they took into consideration injury appellee suffered to his person while he was working for appellant on an occasion other than the one in question here, and fees he would have to pay the attorney who represented him in the prosecution of this suit and a physician who testified as a witness on the trial thereof.
We think the judgment has sufficient support in the pleadings and in the evidence as well, and that it could be affirmed but for conduct of the jury complained of. It appeared from testimony of the jurors who tried the case (given at the hearing of the motion for a new trial in the court below) that when the jury began to consider what their verdict should be, one of them did not think appellee should recover anything of appellant, two thought he should recover $1,000, three that he should recover $8,000, and the others that he should recover $4,000. It further appeared that during their deliberations some of the jurors discussed *874 injury appellee received while working for appellant at a time before the time he suffered the injury in question here, and whether appellant had paid him anything on account of said injury, and also discussed fees he would have to pay his lawyer and a physician who testified as a witness in the case. Further, it appeared from the testimony of J. V. Prather, the juror who did not think appellee should recover anything at all, that, in changing his mind and joining in the finding that appellee was entitled to recover $4,500 of appellant, he considered attorney's and physician's fees appellee would have to pay and the fact, he assumed, that appellant had not paid appellee anything on account of injury he suffered while working for it on the other occasion referred to.
We think the case made by the testimony referred to is within the rules recognized by the Supreme Court as controlling in such matters (Moore v. Ivy [Tex.Com.App.] 277 S.W. 106; Ry. Co. v. Robinson [Tex.Com.App.] 285 S.W. 269, 46 A.L.R. 1507; Ry. Co. v. Gray,