This is a negligence case. Parties will be referred to as in the Trial Court. Plaintiff sued defendant for damages for injuries resulting from defendant running over plaintiff with a bus. Trial was to a jury, which convicted defendant of various acts of negligence and found that same were a proximate cause of plaintiff’s injuries. The jury further acquitted plaintiff of contributory negligence, and fixed plaintiff’s damages at $12,500. The Trial Cоurt granted defendant a new trial on the grounds that a juror failed to divulge certain prior claims against defendant on voir dire examination, but thereafter set aside the order granting a new trial and еntered judgment for plaintiff on the verdict.
Defendant appeals, contending: 1) That the jury’s finding that plaintiff did not fail to keep a proper lookout, was against the great weight and ' prepondеrance of the evidence; 2) and was contrary to the undisputed evidence. 3) That the jury’s finding .that plaintiff did not attempt to cross the street outside the pedestrian marked walk was against the greаt weight and preponderance of the evidence. 4) That the Trial Court erred in refusing defendant’s requested special issues on plaintiff’s intoxication.. 5) That the Trial Court erred in refusing defendant’s requеsted definitions of “proper lookout” and “negligence”, which added the word “sober” to the usual definition “ordinarily prudent person”. 6) That the Trial Cotirt should have granted a new trial because of the failure of one of the jurors to disclose1'on voir dire examination of the jury panel that he and his wife had previously made claims against-, defendant. 7) That the Trial Court efred in not discharging the jury panel аfter .plaintiff’s counsel inquired of a member whether he had “ever been a claim agent for. a big insurance company”. 8) That the Trial Court erred in not discharging the jury panel after plaintiff outlined tо them on voir dire examination defendant’s défenses as alleged in' defendant’s pleadings. 9) That the verdict was excessive.
Defendant’s first three points are levelled at the jury’s findings that plaintiff did not fail to kеep a proper lookout, and that he did not attempt to cross the street outside of the marked walkway for pedestrians. Defendant contends that these findings áre both against the great weight and preponderance of the evidence and that the first finding is in addition, contrary to the undisputed evidence.
In our opinion, the evidence, when viewed most favorably in support of the jury findings, аs we must view it, does not show that plaintiff was as a matter of law guilty of contributory negligence, or that the findings are against the great weight and preponderance of the evidence. See: Lang v. Henderson,
From the foregoing and from the record as a whole, consisting of some 655 pages, we think that there was reasonable basis for the jury to conclude that- the plaintiff wás not guilty of'contributory negligence, both from the direct evidence and from the reasonable inferences therefrom.
Defendant’s 4th point complains of the Trial Court’s refusal to submit requested special issues on plaintiff’s intoxication, while its 5th point contends that the Trial Court’s definition of “negligence” and “proper loоkout” should: have included therein the word “sober”.
In the case at bar the record reflects that the plaintiff had consumed a half pint of 40(5 wine, along with some crackers and bologna, some hour and a half before the accident; that one witness thought plaintiff was intoxicated; that a laboratory test of a specimen of plaintiff’s blood indicated the presence of alсohol to the extent that some impairment of faculties might be observed; there was other testimony to the effect that plaintiff was not drunk; that plaintiff’s actions and movements during the hour and a half рrio.r to the accident were those of a sober man; and that the plaintiff was knocked unconscious by the bus which hit and ran over him.
On the state of the record detailed, the defendant contends that it-was entitled to special issues inquiring whether plaintiff was intoxicated on the occasion in question; whether plaintiff attempted to cross the street while intoxicated; whether such was a fаilure to exercise ordinary care; and whether such was a proximate cause of the occurrence.
The Trial Court correctly refused to submit these issues. Evidence of intoxication is an evidentiary fact to be considered by the jury, or trier of facts, in determining whether or not a person is guilty of some act of contributory negligence. The jury had the right to consider the evidence of plaintiff’s alleged intoxication along with all other material evidence and circumstances in determining the issue as to whether or not plaintiff failed to keep a proper lookout, or attempted to cross the street outside of the marked pedestrian crossway. It is our view that the Trial Court’s refusal to submit the requested issues on intoxication was not error. Benoit v. Wilson, 150 Tex.
273,
Thе Trial Court’s definitions of “proper lookout” and “negligence” were correct definitions. Defendant was not entitled to have the word “sober” inserted between the words “ordinarily prudent” and “pеrson”. The Trial Court did not err in refusing the defendant’s requested definitions.
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Defendant’s 6th point contends that the Trial Court should have granted a new trial because the juror
Atchley
failed to disclose on voir dire exаmination that he and his wife had previously made claims against defendant. Defendant contends that had juror Atchley made true disclosure of the fact of the previous claims against defendant thаt he would have exercised a peremptory challenge against such juror. It is evident from the record before us that juror Atchley had forgotten the claims in question — both claims were small and insignifiсant — one was settled for $90, the other claim was denied; both were some eleven years past. The record further shows that the juror Atchley not only was not prejudiced against defendant, but that he urged 'the award of the $12,500 verdict as against a $20,000 verdict which some members of the jury favored. There is no showing whatever that harm resulted to defendant; there is no exact record of just what
actual
questions were propounded to the jury panel or what
exact
answers wеre given by the juror in response thereto ; and moreover, the facts of prior claims by the juror and his wife and all the details thereof were available to defendant from card index files kept by defendant on prior claimants. See Dossett v. Franklin Life Ins. Co., Tex.Com.App.,
We believe that Childers v. Texas Employers Ins. Ass’n, Tex.,
“The failure оf the juror on his voir dire examination to disclose information that he had suffered previous injuries is not the test to be applied in this case, unless * * * such action resulted in probable injury to the respondent * * * [and] unless the appellate court shall be of the oрinion that the error complained of amounted to such a denial of the rights of the complaining party as mas reasonably calculated to cause and probably did ccmse the rеndition of an improper judgment in the case."
We do not believe that defendant was deprived of a trial before a fair and impartial jury or that the error complained of resulted in the rendition of an improper judgment in the case. See also: Swartout v. Holt, Tex.Civ.App.,
In its 7th point defendant contends that the Trial Court should have discharged the jury panel after plaintiff’s counsel askеd a juror if he had ever been a claim agent for a big insurance company. The juror had stated that he worked for “North American”. “North American” is a large insurance Company and we cannot say that the jury panel should have been discharged because plaintiff’s counsel asked that question. Insurance was not involved in this case and defendant’s counsel could have asked for a jury instruction tо disregard the question, and that insurance was not involved.
In its 8th point defendant contends that the Trial Court should have discharged the jury panel because plaintiff’s counsel outlined to the members thereof defendant’s defensive pleadings. The matter of voir dire' examination of the jury panel is one in which a wide latitude is accorded. The extent of such’ examination is largely within the discretion of the Trial Court. Defendant has not showed where he has been injured in any manner whatsoever, and we fail to perceive any merit in this contention. See: Ft. W. & D. C. Ry. Co. v. Kiel, Tex.Civ.App.,
Defendant’s last point contends that the damages awarded plaintiff are excessive. The award of $12,500 included $2,200 medical bills, $2,000 future medical bills, loss of past and future earnings and pain and suffering. The record disclosed that plaintiff’s injuries were very serious and very painful. It is the jury’s duty to reconcile all the evidence tendered as to the pecuniary loss sustained by the plainr tiff. There is. no showing, in this record
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of passion or prejudice, or of any fact that the verdict is excessive. See: Dallas Ry. & Terminal Co. v. Tucker, Tex.Civ.App.,
From what has been said it follows that the judgment of the Trial Court is in all things affirmed.