
    TRINITY & B. V. RY. CO. v. GEARY.
    (No. 2738.)
    (Supreme Court of Texas.
    Jan. 20, 1915.)
    1. Trial (§ 321%) — Verdict—Concurrence of Jurors — Grounds of Negligence.
    A verdict, in an action for personal injuries, in which part of the jurors found the defendant negligent as charged in one count of the petition and the rest found it negligent as charged in another count, was contrary to Rev. St. 1911, art. 5217, providing that no verdict shall be rendered in any cause except upon the concurrence of all the jurors, the enactment of which statute was authorized by Const, art. 5, § 13. •
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 742; Dec. Dig. § 321%.]
    2. Courts (§ 247) — Jurisdiction—Supreme Court — “Substantive Daw.”
    Error in receiving such a verdict is error in a ruling upon the “substantive law” of the case, since it is a question of law that substantially affects the right of the defendant, and that ruling can therefore be reviewed by the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. | 247.
    
    For other definitions, see Words and Phrases, Second Series, Substantive Law.-]
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by Morris Geary against the Trinity & Brazos Valley Railway Company. Judgment for the plaintiff was affirmed by the Court of Civil Appeals (169 S. W. 201), and the defendant brings error.
    Judgment of the district court and of the Court of Civil Appeals reversed, and cause remanded.
    N. H. Lassiter, of Ft. Worth, and Andrews, Streetman,. Burns & Logue, of Houston, for appellant. Jno. Lovejoy and Presley K. Ewing, both of Houston, for appellee.
    
      
      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, C. J.

An answer to the applica-. tion for writ of error having been filed, and the application granted, the case will now be disposed of.

Defendant in error instituted this suit in the district court of Harris county, seeking to recover from the railroad company damages for an injury received while he was in the employ of said company as foreman and while engaged “in hauling and unloading gravel from a train on the railroad of the plaintiff in error.” Negligence which caused the injury was set up in separate counts, but each count is in the same language, except as to the specific negligence.

The petition alleged [as stated by Higgins, J., in the Court of Civil Appeals (see 169 S. W. 203 et seq.)]:

“That while he was so engaged in riding, standing about the center of a fiat car, or, at any rate, thereop, where he had a right to be (which car was the second car’from the caboose at the north end of said train), the brakes were, unexpectedly to him, suddenly applied and the car suddenly and abruptly stopped, as would be in an instantly applied emergency, whereby he was thrown northward about 15 feet to the end of the car, and caused to fall onto and against the car and from the car to the ground, whereby he sustained injuries which were specifically alleged, together with the items of his pecuniary damage. The allegation of negligence in the first count reads: ‘That one of defendant’s em-ployés engaged in operating said train, being one of the operatives thereof, in the course of his service for defendant in that behalf, and acting within the scope of his employment for it, while said train was moving as aforesaid, uncoupled cars of said train without turning the angle cocks and confining the air, whereby said cars separated and thereby burst or parted the air line or hose, by means whereof the air was suddenly applied to the brakes, and the car on which plaintiff was riding suddenly and abruptly stopped as aforesaid, which act on the part of defendant’s said employé in so handling said car was negligence towards plaintiff, and a proximate cause of the injuries suffered by him as aforesaid. * * * ’
“The allegation of negligence in the third count reads: ‘That aforesaid train, so causing injury to plaintiff as aforesaid, including its operation, handling, and equipment, was under the exclusive management and control of the defendant or its employés other than plaintiff, and the accident to plaintiff, so occasioned as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control use proper or ordinary care; and plaintiff’s said injuries, so suffered on account of said brakes being suddenly applied so as to.produce said sudden and abrupt stop of the car, were proximately caused by negligence of the defendant, or of its agents or employés acting for it within the scope of their employment in that behalf, due to a want of ordinary .care either in the operation or handling or in the equipment of said train, whereby it was, on account of negligence of the defendant or imputable to it, either improperly operated or handled defectively or insufficiently equipped, but the particular or particulars of which negligence are unknown to plaintiff, and he cannot more definitely or with greater certainty specify such. “ * * ’ .
“Defendant answered by general denial and plea of assumed risk and contributory negligence.
“Upon the issues raised by the pleadings, the jury was instructed:
“ ‘If you believe, from the evidence, that one of defendant’s employés engaged in operating the train in question uncoupled the cars of the train without turning the angle cocks and confining the adr, and that thereby the cars were caused to separate and to burst or part the air hose and to apply the air to the brakes, and that the effect of this was to stop the car on which plaintiff was riding suddenly and abruptly, and that by reason thereof plaintiff was thrown, and caused to fall and suffer injuries substantially in the manner alleged, and if you further believe that such operative in so doing, if he did, was acting within the course of his service and scope of his employment for the defendant, and that such act on his part, if committed, was a want of ordinary care towards plaintiff, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, then fipd for the plaintiff under the first count of his petition, and so say by your verdict. * * *
“ ‘If you do not find that an operative of the train uncoupled the cars without turning, the angle cocks and confining the air, but do believe, from the evidence, that the cars separated and broke or parted the air hose, and that thereby the brakes were applied and the car -on which plaintiff was riding suddenly and abruptly stopped, and that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in the manner alleged, and if you further believe that such an accident does not, in the ordinary course of things, happen. if those who have the management of the train, including its operation and equipment, use reasonable care, and if you further believe that such operation of the cars and application of the brakes and abrupt and sudden stopping of the car on which plaintiff was riding, if such happened, resulted in some manner either from improper operation or defective equipment of the train, and that such was due to a want of ordinary care on the part of the defendant or of any of its agents or employés acting for it within the scope of their employment, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, if sustained, then find for plaintiff under the third count of his petition, and so say by your verdict. * * *
“ ‘If you find plaintiff entitled to recover under the first count, you need not consider his right to recover or not under the third count.
“ ‘If you do not find plaintiff entitled to recover under the first count, then, unless you believe from a preponderance of the evidence that some defect in the train existed, and that defendant or its agents or employés knew thereof, or in the exercise of ordinary care should have known thereof, within a reasonable time to have remedied it, and that such defect, if existing with the knowledge, or negligent lack of knowledge, on the part of the defendant, was a proximate cause of alleged injuries to plaintiff, then you cannot find for plaintiff under the third count under the claim of negligent equipment of the train, and in that event you will decide whether or not plaintiff is entitled to recover under said third count under the claim of negligent operation of the train, as before submitted to you. * '* *
“ ‘If your verdict is in favor of the plaintiff and you find him entitled to recover under the first count, the form of your verdict will be: “We, the jury, find for plaintiff, under his first count, and assess his damages at $- (stating the amount).”
“‘If‘your verdict is in favor of plaintiff, and you do not find him entitled to recover under the first count, and 'do find him entitled to recover under his third count, the form of your verdict will be: “We, the jury, find, for plaintiff, under his third count, and assess his damages at $- (stating the amount).”
“ ‘If you find plaintiff entitled to recover, and some of you find him entitled to recover under his first count, and some of you find him entitled to recover under his third count, the form of your verdict will be: • “We, the jury, find plaintiff entitled to recover under his first and third counts, and assess his damages at ip-(stating the amount).”
“ ‘If your verdict is in favor of the defendant, its form will be: “We, the jury, find for the defendant.” ’ ”

Section 13 of article 6 of our Constitution, adopted in 1876, contains this provision:

“In trials of civil cases, and in trials of criminal cases below the grade of felony in the district courts, nine members of the jury concurring may render a verdict, but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it * * * provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render a verdict.”

The Constitution became effective on the 15th day of February, 1876, and the Legislature assembled on the 18th day of April, 1876, when a law was enacted, now article 5217 of the Revised Statutes, which we copy:

“Art. 5217. .Entire jury must concur in verdict. — No ?erdict shall be rendered in any cause except upon the concurrence of all the members of the jury trying the same.”

The action of the Legislature reflected public sentiment, and that law remains in force. It would be a waste of time to cite cases to support a statute so plain. We note, however, the emphatic terms in which the law is expressed, “No verdict shall be rendered." There remains for our consideration the question, Does it appear from the verdict rendered that all of the jury impaneled in this case concurred in the finding as presented to the court?

The court submitted to the jury two grounds of negligence as charged in plaintiff’s petition, set out in the first paragraph of the charge copied above, in substance, that an employs of the defendant in discharge of his duty, uncoupled cars of the train without turning the angle cocks and confining the air, which caused plaintiff’s injury.

The third ground of liability cannot be condensed and preserve its character. We, therefore, copy it:

“If you do not find that an operative of the train uncoupled the cars without turning the angle cocks and confining the air, but do believe, from the evidence, that the cars separated and broke or parted the air hose, and that thereby the brakes were applied and the car on which plaintiff was riding suddenly and abruptly stopped, and that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in the manner alleged, and if you further believe that such an accident does not, in the ordinary course of things, happen if those who have the management of the train, including its operation and equipment, use reasonable care, and if you further believe that such operation of the cars ■and application of the brakes and abrupt and sudden stopping of the car on which plaintiff was riding, if such happened, resulted in some manner either from improper operation or defective equipment of the train, and that such was due to a want of ordinary care on the part of the defendant or of any of its agents or employes acting for it within the scope of their employment, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, if sustained, then find for plaintiff under the third count of his petition, and so say by your verdict.”

The grounds of recovery were submitted in the alternative in this language:

“If your verdict is in favor of the plaintiff and you find him entitled to recover under the first count the form of your verdict will be: ‘We, the jury, find for plaintiff under his first count, and assess his damages at $ — -— (stating the amount).’
“If your verdict is in favor of plaintiff, and you do not find him entitled to recover under the first count, and do find him entitled to recover under his third count, the form of your verdict will be: ‘We, the jury, find for plaintiff under his third count, and assess his damages at í¡>-(stating the amount).’
“If you find plaintiff entitled to recover, and some of you find him entitled to recover under his first count, and some of you find him entitled to recover under his third count, the form of your verdict will be: ‘We, the jury, find plaintiff entitled to recover under his first and third counts, and assess his damages at $- (stating the amount).’ ”

The jury returned this verdict:

“We, the jury, find plaintiff, Morris Geary, entitled to recover under his first and third counts, and assess his damages at $20,000.00 (twenty thousand dollars).”

Interpreted by the charge, the verdict clearly expresses that a part of the jury found for plaintiff under the first ground, and part under the third ground. It is manifest that some of the jury based their finding on the first, and some on the third ground, but all did not agree upon either. There being no “concurrence” of all of the members of the jury on either ground of negligence, the action of the district court in receiving the verdict was in direct disregard of the statute.

Counsel for defendant in error assert that this court has no jurisdiction of the application, because it does not present error in ruling upon the substantive law of the case. This court has defined the term “substantive law,” as applied to applications for writs of error, thus:

“(5) If the case be one in which the Court of Civil Appeals has erroneously declared the substantive law of the case, that the ruling complained of was upon a question or questions of law that substantially affected the right of the plaintiff to recover or the right of the defendant to maintain his defense.”

The denial of a statutory and constitutional right to have the concurrence of all of the jurors “substantially affects the right of the defendant to maintain its defense.” This court has jurisdiction. Because of the error of the trial court in receiving the verdict contrary to. the plain language of the I statute, the judgments of the Court of Civil Appeals and of the district court are reversed, and this cause is remanded.  