Suit under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., by James H. Quarles, appellee, against Guy A. Thompson, Trustee of Beaumont, Sour Lake & Western Railroad Company, appellant. Plaintiff sought damages alleging that while employed by defendant as an electrician’s helper, he accidentally sustained personal injuries resulting from negligence on the part of defendant’s other employees. Plaintiff had judgment on special jury findings for $50,213, with interest and costs, and this appeal follows. Appellant asserts the following errors: (a) misconduct of two of the jurors in failing to divulge material information on voir dire examination, (b) excessiveness, (c) the entire want of any evidence to sustain, and (d) the factual insufficiency of the evidence to sustain actionable negligence.
Plaintiff’s theory of the facts is reflected ■by the following from the petition: “At or about the hour of 8:30 o’clock a. m. on April 16, 1953, your plaintiff was working on a Diesel [locomotive] engine. As he was jacking over the engine [generator] on the Diesel, which was known as Engine 549A, a switch engine hooked onto the Diesel on one end thereof with considerable force and violence. This was done without notice or warning to your plaintiff. When the switch engine bumped the Diesel, the jack was caused to slip and your plaintiff was thrown against the side of the engine and its beams. As a result of this incident, your plaintiff was caused to injure his back. The incident out of which this suit arises resulted from the negligence and carelessness of employees and representatives of the defendant, other than your plaintiff, * * By other allegations plaintiff pleaded negligence in several particulars, but he went to the jury only on *323 a claim of negligence in that the switch engine coupled onto the Deisel locomotive while plaintiff was working on it without prior warning to plaintiff.
Defendant pleaded a general denial; a special denial of his own negligence; contributory negligence; that plaintiff’s negligence was the sole proximate cause of his injuries, and unavoidable accident. But defendant’s primary and principal defense was that no accident such as alleged by plaintiff occurred.
The verdict finds: (1) that at the time of and immediately before the occurrence of April 16, 1953, the engine upon which Quarles was working was coupled onto by another engine; (2) that such coupling caused bodily injury to Quarles; (3) that such coupling was made without warning; (4) that the failure to warn Quarles was negligence; (5) that such negligence was a proximate cause of the occurrence of April 16, 1953; (6) that the act of coupling onto the engine while Quarles worked thereon was negligence; (7) that such negligence was a proximate cause of the occurrence of April 16, 1953. By answers to other issues the jury exonerated plaintiff from any concurring negligence and found that “the accident in question” was not an unavoidable one. The jury fixed damages, exclusive of medical expense and resulting, and to result, from past and future physical pain and mental anguish and past and future loss of earning capacity, at $50,000.
Defendant first says that he was deprived of a legal trial before a fairly constituted tribunal because of the failure of two of the jurors — R. C. Bomer and Lynn Chambers — to divulge material information on voir dire examination so as to enable defendant intelligently to exercise his peremptory challenges.
Following a hearing of the motion for new trial, at which considerable evidence and testimony of the jurors was introduced, the trial court made findings in respect to the voir dire jury panel proceedings. These show the nature and extent of the interrogation of the jury. The findings are not attacked and reveal that on the voir dire neither plaintiff’s counsel nor counsel for defendant inquired generally of the panel, or of any particular juror, as to whether the members of the panel had had — generally speaking — claims for personal injuries; that the only general question propounded with reference to “injuries, claims or law suits” was limited to a question inquiring whether the members of the panel had been or were then involved in a law suit themselves, whether as plaintiff or defendant; however, an exception under a further finding is that counsel for defendant did inquire oft the panel as a whole whether any of them “had had a claim or a law suit for a back injury.” But the court found specially that neither the juror Lynn Chambers nor the juror R. C. Bomer was questioned by either counsel for plaintiff or counsel for defendant with reference to whether or not he had had any other injuries or claims. There is a further finding that no questions were asked of the panel generally or of the jurors individually in respect to law suits, of friends or relatives. The findings in part, read:
“VI.
“Said Lynn L. Chambers, who was a member of the jury panel in this case and who later served as a juror in this cause, had, prior to the trial of this cause, sustained personal injuries and filed claims therefor, as follows:
“(a) The said Chambers sustained a personal injury on March 1, 1951, while employed by George Rackle & Sons. The injury consisted of a mashed thumb. He filed a claim for compensation which was settled for $1250.00 plus $700.-00 compensation for 28 weeks. * * * He was represented by an attorney.
*324 “(b) The said Chambers sustained a personal injury while employed 'by Port Houston Roofing Company. The injury occurred May 24, 19S0 when he fell off of a building and broke both feet. He filed a claim for compensation which was settled for $1600.00 plus $600.00 compensation for 24 weeks. * * *
“(c) The said Chambers sustained a personal injury on August 17, 1948, while employed by Lydick Roofing Company, when he broke his arm. As a result thereof he was off work from August 18, 1948, to November 24, 1948, He filed a claim for compensation and was paid at the rate of Twenty five ($25.00) Dollars per week for nine weeks, and in addition he was paid One hundred thirty five ($135.00) Dollars in compromise settlement of the claim. * * * ”
“X.
“R. C. Bomer, who was a member of the jury panel in this cause had, prior to the trial of this case, sustained personal injuries, as follows:
“(a) The said Bomer sustained an injury to his back while riding a Houston Transit Company bus, in Houston, Texas, on June 25, 1954, when the bus suddenly stopped and by reason of the sudden stop Bomer was caused to be thrown to the floor of the bus. The said Transit Company paid Bomer Forty ($40.00) Dollars and paid his doctor 'bills and Bomer executed a release.
“(b) The said Bomer sustained personal injuries when a ' truck he was operating turned over on February 9, 1950. As a result of said accident he was off work three days. His doctor bills were paid and his salary was continued the three days. A claim for compensation signed by the said R. C. Bomer, was filed with the Industrial Accident Board as a result of the injuries sustained by the said Bomer on the occasion in question and also a settlement receipt for $10.00, signed.by the said Bomer, was filed with the Industrial Accident Board. * * *.
“(c) The said R. C. Bomer has three brothers, one of whom had, at the time of the trial of this cause, a suit pending in Harris County, Texas, wherein he was seeking to recover Seventy Five Thousand and no/100 ($75,000.00) Dollars for injuries to his back. * * *. Another brother of the said R. C. Bomer had a claim for damages for personal injuries which he received in the territory of Alaska. That claim was settled without a law suit. The said R. C. Bo-mer at the time he was being interrogated on voir dire examination was aware of both the claim of one brother and the pending law suit of the other brother.
“(d) The said Bomer did not, at any time during the voir dire examination of the jury panel or during the trial of the cause reveal that he had sustained the personal injuries set out in 10 (a) and (h) above, or the information set out in (c) above. * * * ”
“IV.
“During the examination of the sixteenth juror on the panel, George D. O’Sullivan, he made a remark which was in substance that he was skeptical about back injuries. At this time several of the jurors on the panel spontaneously volunteered that they themselves had sustained certain types of injuries. At this time the juror, Lynn Chambers, held up his hand, exhibiting a partially amputated thumb, and, upon questioning by plaintiff’s counsel with reference to the injury, stated it would not make any difference to him in serving as a juror.”
So it appears that the jurors were not questioned generally in respect to
all prior claims
for personal injuries, but only in respect to past or present
law suits
based thereon; except that one of the attorneys for defendant did inquire
*325
of the panel as a whole whether they or any of them had had a claim or a law suit for a “back injury”. It is specifically found that the juror Lynn Chambers was not questioned with reference to injuries other than back injuries, and the same is true of the juror R. C. Bo-mer. It further appears that none of the jurors was questioned generally or individually in respect to law suits of friends or relatives. In this state of the record defendant’s claim that the general setting and atmosphere of the voir dire examination was such that the jurors must have known that defendant’s counsel was interested in the claim and injury history of each of the jurors and in that of their friends and relatives, and that under pain of being charged with concealment they should have volunteered full information thereon, is, in our view, untenable and does not supply the indispensable requisite that direct and specific questions with reference to desired information must be addressed to jurors before complaint of failure to divulge material information on voir dire will be entertained. Liberty Cab Company v. Green, Tex.Civ.App.,
On the facts as found by the trial court, we feel that the only substantial question in respect to the failure of any juror to reveal information arises on the testimony of the juror Bomer showing that he had sustained a previous back injury while a passenger on a Houston Transit Company bus and had executed a release therefor. Defendant’s showing on which he bases his claim of Bomer’s improper concealment is as follows: Bomer testified that while a passenger on a Houston Transit Company bus it stopped suddenly and caused him to fall to the floor in a twisted position and strain his back. At the time the bus operator handed him a slip titled “Courtesy Card”, on which the following appeared: “I am required to report the details of any unusual incident which occurs. Your comments will enable the management to treat my driving record fairly and I will greatly appreciate your name mid address and any comments you care to make." (Emphasis supplied.) The card contained blank spaces for the insertion of the recipient’s name, address, business address, phone numbers, and a space for “Remarks”. Below this there was printed on the card the words “Thank you. Your Bus Operator.” Bo-mer filled out the Courtesy Card, giving his name and address, and included the following “Remarks”: “Bus stopped suddenly, causing me to fall to floor in twisted position.” Asked at the hearing if he had ever had a claim for injuries against the Houston Transit Company, Mr. Bomer stated: “I didn’t have a claim, no, sir.” Asked if he had filed a claim for damages, he answered: “I made out an accident report.” This referred to the courtesy card. Bomer testified • to the events which gave rise to his execution of a release and the receipt by him of the sum of $40 as well as payment by the Transit Company of a smaller additional amount on account of doctor’s bills incurred in the treatment of his back. Asked if the Transit Company had settled with him, he stated: “They came out on Monday and said they thought I was entitled to a little money on that. That anybody as nice as I had been was entitled to a little -money.” The foregoing is the testimony, and all the testimony, upon which defendant asserts that the juror Bomer improperly concealed the fact that he had had a claim or law suit for a back injury.
*326 We do not think the proof shows that Mr. Bomer ever asserted a claim for a back injury. The most it shows is that before Mr. Bomer ever took the time or opportunity to assert a claim the company came to him and voluntarily offered to pay $40 and his doctors’ bills, conditioned on Bomer executing a release of possible claims. This Mr. Bomer did and received the money. This does not establish that Mr. Bomer asserted a claim for a back injury. The word “claim”, in the sense here used, is properly defined as “to demand on the ground of right”. The word connotes affirmative action and is inconsistent with the passivity in which the proof places Mr. Bomer.
But, if in any view it can be said that Mr. Bomer once asserted a claim for a back injury, still his innocent concealment of that fact does not in and of itself show probable injury. True, there is testimony by Mr. Bomer — somewhat indefinite — that he has had some slight trouble with his back since the injury, but it appears that this is not disabling since Mr. Bomer is now regularly employed and serving as a peace officer. We cannot hold, on the mere fact that Mr. Bomer had a minor back injury and on that account received a small payment, that he. was thereby rendered suspect as a juror who would be fair and impartial to defendant, or that he would probably be biased towards plaintiffs in such cases as the present. The implication might be said to point the other way; i.e., to the thought that Mr. Bomer is not claim conscious and is not unfavorably inclined toward any party involved in personal injury suits, whether plaintiff or defendant. We are governed by Childers v. Texas Employers’ Insurance Association,
Defendant next assigns that the verdict is excessive. The proof shows that prior to the accident neither plaintiff nor defendant suspicioned a latent defect in plaintiff’s spine known as spondy-lolisthesis. The defect consists of one vertebra slipping forward on another. In Quarles’ case his fifth lumbar vertebra was slipped forward on the sacrum. Spondylolisthesis predisposes to serious disabling back injury. One in that condition may go for years withstanding considerable strain, and then for no assignable reason sustain serious injury from a relatively light trauma. There is no dispute among the medical witnesses that at the time of the trial and at all times intervening since the accident plaintiff suffered from a seriously disabling back condition; but there is a sharp dispute in respect to whether a full and satisfactory remedy of the condition is often to be had by surgery through a bone graft fusion of the vertebra at the site of the spondylolisthesis.
All defendant’s doctors testified to the high probability of a complete cure by operation. Defendant’s witness, 'Dr. Edward T. Smith, testified that in spondy-lolisthesis operative procedure is successful in about 80% of the cases, the remaining 20% being unsuccessful. In case of failure, i. e., where the attempted fusion is unsuccessful, a re-fusion has to be tried. Dr. Frank Parrish, another medical witness for defendant, had examined plaintiff. He testified that spondy-lolisthesis is seen often; that some in which the condition looks bad apparently are not bothered, “so it is a little diffi *327 cult on one visit or two to recommend very vigorously anything as radical as an operation.” (Emphasis supplied.) However, Dr. Parrish testified that in plaintiff’s case, since he had failed to improve under conservative treatment, the only possible solution was an operation, described by him as “a pretty good sized operation” which neither he nor any other doctor could guarantee. According to Dr. 'Parrish the doctors only go on averages, which run 80 to 90% in favor of success. As the doctor put it, “We expect excellent results if we get solid union.” (Emphasis supplied.) All of defendant’s medical witnesses testified that if plaintiff were successfully operated he would have no residual disability and would be able to resume hard manual labor at the expiration of about a year from the date of the operation. The claim of excessiveness is bottomed on the assumption of the inerrancy of this testimony, from which defendant argues that, as a matter of law, any pain or disability in plaintiff, past the time it would take him to convalesce from an operation, is not legally attributable to defendant’s negligence but rather to plaintiff’s negligence in refusing an operation.
Under the authorities one may not recover damages which can be avoided by submission to medical treatment, including operative procedure, when under similar circumstances a man of ordinary prudence would submit to such procedures in his own interest. However, what a man of ordinary prudence would do under stated circumstances is ordinarily a question of fact — rarely, if ever, a question of law. Negligence vel non in refusing to submit to surgery is to be judged in relation to the risks and pain involved, including that from general anesthesia, the possibility of failure, or that the injured condition may be made worse, etc. Here the record is not too well developed on these matters, but we take it any operation involving the spine is a radical one with no positive assurance of safety. Surely such a radical operation would involve considerable pain, and defendant’s testimony shows a substantial. possibility of failure. There would be defensible ground on defendant’s evidence alone for us to hold, as a matter of law, that plaintiff was not required to submit to an operation for his spondylolisthesis. See the cases reviewed in 48 A,L.R,2d at pages 376 et seq., including T3aiíard Ballard v. Pelaia, Fla., 1954,
Defendant next contends that the jury verdict finding him actionably negligent in coupling onto the Diesel locomotive, while Quarles was working on it and without warning, is without any evidence to support it; or, alternatively, so con *329 trary to the overwhelming weight of the evidence as to be manifestly wrong. Defendant states these contentions as follows :
“Defendant’s contention under this point is simply that since there is no evidence in the record tending to show that the negligence found by the jury would cause any injury to a person whose back which was not more than ordinarily susceptible to injury, and since defendant is entitled to assume that his employees are able-bodied, he could not foresee that the acts, which the jury found to be negligent on the occasion in question, would cause any injury. Since the defendant could not foresee any injury the acts found by the jury to be negligence cannot, as a matter of law, be negligence or a proximate cause of the injury. Foreseeability is one of the requirements of both negligence and proximate cause.”
In support of his contention defendant refers us to the medical testimony, from which it is inferable — and not denied by plaintiff — that but for predisposing spondylolisthesis, defendant’s act of coupling onto the car without warning while plaintiff was working on it would have resulted in only minor injury to plaintiff; and he cites us to authorities which hold that a master is not liable for injuries sustained by employees as a result of predisposing physical infirmities while at work under safe conditions; that is to say, at tasks and under circumstances not calculated to produce any harmful result to able-bodied employees. These authorities are: Haywood v. Galveston, H.
&
S. A. Ry. Co.,
15 Am.Jur., Damages, Sec. 81, page 490, reads: “The general rule seems to be that where the result of the accident is to bring into activity a dormant or incipient disease, or one to which the injured person is predisposed, the defendant is liable for the entire damages which ensue, for it cannot be said that the development of the disease as a result of the injury was not the consequence which might naturally or ordinarily follow as a result of the injury, and therefore, the negligent person may be held liable therefor. In other words, if a latent condition itself does not cause pain, suffering, etc., but that condition plus an injury caused such pain, the injury, and not the latent condition, is the proximate cause.”
The text is fully supported by Owen v. Rochester-Penfield Bus Company, Inc., 1952,
“In the circumstances disclosed, we cannot say as a matter of law, as did the Appellate Division, that plaintiff’s injuries did not come within the realm of reasonable foreseeability.”
In Driess v. Friederick,
“The damages which appellee was entitled to recover were the damages resulting to himself, conditioned as he was at the time of the injury, and not such damages as he might have been entitled to had his condition been different. That the injury resulting from the negligence of appellants may have been aggravated or more easily caused by reason of the fact that the limb had received a former injury cannot affect the question of right to or measure of damages. Had the latter part of the charge refused been given, the jury would probably have felt authorized to inquire whether the injury would have occurred at all if the weakness from the former injury had not existed, which would not have been proper if the injury in fact resulted from the negligence of appellants.” (Emphasis supplied.)
That, as said in City of Dallas v. Maxwell, Tex.Com.App.,
We think the Driess and Collins cases are applicable and controlling and we overrule defendant’s contention.
*331 Lastly, the defendant invokes our power to review the finding' that plaintiff was injured as a result of the switch engine coupling onto the Diesel locomotive, and defendant asks us to set aside this finding as plainly wrong, manifestly unjust, and contrary to the overwhelming weight of the evidence. In order to do this we must reach the conclusion on the evidence in its entirety, that of plaintiff as well as of defendant, that no impartial, fairminded jury should have found the issue against defendant. The test by which we are governed in exercising our fact jurisdiction is not satisfactorily established, but we apprehend it to be our duty to leave jury fact findings undisturbed unless on the whole record we find them shocking to the conscience. Under this point defendant does not say there is no evidence to support the verdict, but only that the verdict reflects bad faith, as it were, and bias and passion in plaintiff’s favor. In performing our function under this point, we have reviewed the entire record as thoughtfully and carefully as we know how. Having done so, we reach the conclusion that the point is without merit.
Plaintiff’s theory of the facts is clear and simple. It is evidenced by the excerpt from the petition set out earlier in this opinion. Plaintiff’s testimony fully supports his theory. On the other hand, defendant’s theory that the accident did not in fact happen appears to us to be inconsistent with much of defendant’s own proof. According to some of defendant’s witnesses plaintiff sustained his injury before the coupling took place; according to others, after the coupling had been made and the Diesel locomotive upon which plaintiff was working had been moved to another location and come to rest there. It is defendant’s claim that plaintiff’s injuries were not caused by any movement of the locomotive upon which plaintiff was working when the coupling was made. This defendant supports by the testimony of certain witnesses who impeach themselves by admitting having given prior written statements to plaintiff’s attorneys corroborative of and consistent with plaintiff’s theory of the facts. Actually, defendant’s main support for his contention under this point are certain extra-judicial statements, two in writing and others verbal, made and claimed to have been made by plaintiff and, which it is said, show beyond all reasonable doubt that plaintiff’s injury resulted solely from over-exertion. If these written statements are susceptible of the construction which defendant places upon them — and they are not without ambiguity when applied to the full proof — then they collide with prior consistent statements to which defendant’s own witnesses testified. Actually, one of the verbal statements claimed to have been made by plaintiff and said to be inconsistent with his theory of the facts is said to have been made after plaintiff filed his petition, in which he alleged affirmatively and distinctly that he was injured when the locomotive upon which he was working was coupled onto by a switch engine. The proof of this verbal declaration or admission against interest, testified’, to by one of defendant’s medical witnesses;,it seems to us, comes heavily freighted with suspicion and casts a long shadow over defendant’s other proof of similar declarations of plaintiff made in writing. The written statements in each case were taken by parties identified with defendant. One was taken by an office assistant of a railroad doctor. Plaintiff testified this assistant changed the statement around three times before it was finally signed. Defendant did not produce or account for the absence of the witness who took the statement. Another written statement taken by defendant’s claim agent was, according to plaintiff, finally drafted only after, when, as plaintiff would put the matter one way, the claim agent would say, “Let’s put this another way.” All of defendant’s own proof shows that plaintiff was working inside the Diesel locomotive when the switch engine coupled onto it, and that this was contrary to defendant’s rules which required men working inside a locomotive to get down off of it and onto the *332 ground before the coupling would be made. This was testified to by defendant’s master-mechanic. However, all doubt in our minds with respect to our duty to leave the verdict undisturbed is removed by testimony of one of defendant’s witnesses concerning a prior consistent statement made by plaintiff, and this almost in the nature of res gestae. Mr. J. C. McLeod, a machinist in the employ of defendant, who was working as a member of the crew of which plaintiff was a member, testified that he was on the engine the morning of the accident and saw Quarles jacking over the Diesel generator; that he, the witness, got down off of the Diesel to get some water and had gone about 30 feet when the coupling was made, and we quote:
“Q. And that you left the Diesel and went around and were standing on the ramp ? A. Yes, sir.
“Q. From where you could see the Diesel engine ? A. Yes, sir.
“Q. And the switch engine came along and hooked onto the north end of the Diesel and pulled it on out? A. Yes, sir.
“Q. You testified about taking it to the ‘Wye’. Didn’t you say, ‘Quarles got off and told me he hurt his back when the switch engine humped the Diesel’ ? (Emphasis supplied.) A. Yes, sir.
“Q. Causing the jack to slip and he fell against the wall? A. Yes, sir.”
Another of the witnesses relied upon by defendant to overcome plaintiff’s testimony was O. D. Taite. Taite was an electrician and plaintiff was his helper. This witness testified on direct examination that plaintiff’s work of jacking over the generator on the Diesel was not done until after the locomotive had been coupled onto by the switch engine and moved to another location and had come to rest there. He testified: ,- .
“Q. Was the jacking over he was doing, was that done after that move from the ‘Wye’? A. Yes, sir, that is the way I recall it.
“Q. After the engine had been moved? A. Yes, sir.
“Q. That is when all the jacking was done? A. Yes, sir.”
However, on cross-examination this same witness testified that plaintiff was hurt on the day he claimed while jacking over the generator on the Diesel locomotive; that plaintiff came to him, the witness, and told him he had hurt his back and that witness rubbed his back in an effort to alleviate the pain. And after being confronted with his own prior statement concerning the details of the accident, he admitted that the contents of a statement which he had given plaintiff’s attorney was “the truth about what happened out there” — “As far as the witness could understand.” This statement contradicted the witness’s testimony that the injury to plaintiff did not occur until after the locomotive had been moved and corroborated plaintiff’s claim that he, the plaintiff, was hurt when the switch engine coupled onto the Diesel locomotive. In the statement the witness says that while the crew was working on the generator an errand boy from the superintendent’s office came on the engine and said they were in a hurry for the Diesel; that a short time later a switch engine hooked onto the Diesel and there was quite a jolt and that shortly after this Quarles came to him and said that he had slipped, causing him to fall and injure his back. Questioned on his independent recollection, the witness stated that he did recall that the crew was told to hurry and that shortly after this there was a bump from the switch engine tying onto the Diesel locomotive, and that it was right after that that the plaintiff said he was hurt.
To our miñds, these and additional inconsistencies in defendant’s proof and the backing and filling of his own witnesses rob *333 defendant’s case of any real cogency on the particular finding which he attacks. After reading the testimony of certain of defendant’s witnesses it is not difficult to understand why the jury may very well have felt that the inconsistencies in defendant’s own proof lent considerable conviction and veracity to plaintiff’s claim of the details of the occurrence which led up to his injury.
Affirmed.