This is an action brought in the court below by James S. Greenlee and his wife Lou M. Greenlee, to recover damages for a personal injury to the wife, alleged to have occurred by reason of the negligence of the defendant company.
The appellees were traveling along a public road in an ox wagon, and, arriving at the road of the defendant where it is crossed by the highway, and the heads of the oxen reaching the track of the railroad just as an engine drawing a train of cars swept past, the oxen were frightened by the locomotive, and, sheering to the right, overturned the wagon and inflicted the injury of which appellees complained.
The first question presented in the brief of appellant is, as to the action of the court in impaneling a jury. It appears from the bill of exceptions that when the parties announced ready for trial, a number of the jurors selected for the week had been impaneled in another case, and were then considering of their verdict; and that thereupon the court directed the names of the remaining jurors to be drawn and placed upon the slips. Twelve names having beqn drawn and entered upon the slips, the parties were required to exercise their peremptory challenges.
The counsel for defendant objected to exercising its right of challenge until the entire panel for the week had been placed in the box and their names drawn by the clerk. The objection was overruled. The counsel then moved the court to allow them to suspend their challenge until a sufficient number of talesmen could be summoned to complete the lists. This was refused, and the parties were required to strike from the lists furnished by the clerk before other jurors were summoned. In the action of the court there was no error. The statutes evidently contemplate that when as many as twelve jurors are present for the trial of causes, their names must be drawn and placed upon the slips before others are summoned. (Rev. Stats., art. 3091.) The article cited provides, in substance, that in cases in the district court, in which not so many as twelve names remain in the box, the court shall direct the sheriff to summon a sufficient number of qualified persons as it may deem necessary to complete the panel, thereby clearly implying that if twelve remain talesmen shall not be summoned *560until the number is reduced by challenge. When as many as twelve are drawn, they are then subject to be challenged for cause. (Rev. Stats., art. 3092.) If by such challenges the number be reduced to less than twelve, then other jurors must be summoned. (Rev. Stats., art. 3093.) But if, after the exercise of the challenges for cause, as many as twelve remain, then “the parties shall proceed to make their peremptory challenges, if they desire to make any.” (Rev. Stats., art. 3094.)
Such is the meaning of the statute literally interpreted, and its obvious intent is to prevent an unnecessary consumption of time. As long as it is possible to complete the jury without resort to talesmen this shall be done. Whenever the number is less than twelve, either when first drawn or after the challenges for cause or after the peremptory challenges, then, and not before, the court is empowered to order others to be sum. moned by the sheriff. Ho reason is seen why the directions of the statute should not be literally pursued. Under them there is a reasonable assurance that every juror obnoxious to either party may be excluded from the panel, and thereby a fair and impartial jury secured. The articles we have cited from the Revised Statutes were partly if not primarily intended to meet the very contingency which presented itself in this case, and is wisely provided, in order to save delay in the trial of causes, when such delay is not necessary to the due administration of justice. It is to be further remarked that the leading object of our present jury law was to avoid the evils resulting from the summoning of juries by sheriffs and in furtherance of that end it is framed with the intent to secure the panel when practicable, from the jurors selected by the commissioners.
There are several asssignments of error which complain of the charge of the court. This court submitted an instruction to the jury upon the hypothetical case of a collision between the engine of defendant and plaintiff’s wagon; and it is objected to the instruction that, there was no evidence of a collision, and that it is therefore erroneous. It seems to us, however, that this is quite an immaterial matter, and that if the assumption that there was no evidence of actual contact were well founded, the charge could not' have misled the jury to the prejudice of appellant. But in point of fact there was evidence of a collision between the engine and the oxen which drew the wagon. The plaintiff J. S. Greenlee testified that he thought the engine struck the horns of the oxen, and in an*561other place, that his impression was it touched their legs. His wife’s testimony was somewhat to the same effect. Neither of them were positive whether there was any actual contact or not.
It is also complained that the the court erred in charging the jury that if neither party was guilty of negligence the injury was the result of an accident and no recovery could be had. But it is clear that the defendant could not have been prejudiced by this instruction.
In reference to the other assignments which relate to the instructions of the court we may say generally that, in our opinion, the court’s charge correctly presented the law applicable to the case and to the issues made by the pleadings and evidence upon each phase of the case; the jury were clearly instructed that the plaintiffs could not recover if they failed to exercise ordinary care and prudence in attempting to cross the railroad track. It is claimed, ho wever, that the charge is erroneous, because the jury were not told that the plaintiffs could not recover if they were negligent in not watching for the train before they discovered the crossing. But we know of no law which makes it the duty of travelers upon a highway which runs parallel to a railroad track, before crossing it to look for trains before they approach the point of danger. The court charged, in effect, that, if the plaintiffs, after they “ascertained where the crossing was or, after, by the use of ordinary diligence, could have discovered the crossing,” failed to exercise such care to avoid the danger as a prudent man would have exercised under like circumstances, they could not recover. The husband admitted in his testimony that he saw the crossing before he started his wagon down the declivity, and at a point some fifty or sixty feet from the railroad track, and testified that before attempting to cross over he looked for approaching trains but saw none. Before this there was no danger to be encountered, and we are at a loss to conceive what diligence he was called upon to exercise prior to this time. Can it be seriously contended that he should have been on the outlook merely because he was running parallel to the railroad track? If the court had so charged the charge would have been misleading and fatal to the judgment, if the verdict had been against the plaintiffs.
It is also insisted that the court, instead of charging generally that plaintiffs could not recover if they failed to exercise *562ordinary care in approaching the crossing, or at least, in addition to such charge, should have instructed the jury that it was the duty of plaintiffs, as they approached the track, to look and listen for coming trains. But we think the charge as to the contributory negligence of plaintiffs, as given in general terms, sufficient. According to the rule of decision in this court, except in case of a failure to perform a statutory duty, negligence is very rarely a question of law. It is most usually a question of fact, the determination of which depends upon the circumstances of each particular case. (Railway Company v. Murphy, 46 Texas, 356.) In the case cited, it was held that an instruction to the jury which told them that certain acts on the part of the servants of the railroad company were negligence, was error, and is authority for holding that a more specific charge upon the alleged contributory negligence of plaintiffs was not required in this case.
The tenth assignment is that “the court erred in its last clause of its charge, which excluded from the minds of the jury the alternative of finding for defendant by emphasizing their finding for the plaintiffs.” The answer to this is, that the court did not, in the paragraph complained of, instruct the jury to find for plaintiff. The instruction merely gives the rule of damages “if, under the instructions given and the evidence,” the jury “shall find for the plaintiffs.”
The twelfth assignment of error does not specify the particular special charges, the refusal of which is complained of, and is too general to be considered.
An exception was taken to the language of one of the counsel for plaintiffs, used in the closing argument to the jury. The language was not objected to when uttered, and the judge states, in the bill of exceptions, that his attention was engrossed at the time in the preparation of his charge, and that he only heard one of the remarks of which complaint is made, and that this he promptly checked. Without passing upon the question whether the language is of such a character as would require a reversal under any circumstances, we will say that the remarks were not so plainly prejudicial to defendant as to demand that the verdict be set aside, in the absence of an objection by its counsel at the time the words were spoken.
In reference to the assignments which in effect submit that the verdict of the jury is contrary to the law and the evidence, it is sufficient to say that the testimony was conflicting, and *563that therefore the verdict should not be disturbed. If the jury believed the testimony of the plaintiffs, they could not have come to any other proper conclusion.
Opinion delivered April 20, 1888.The last assignment that the “court erred in overruling defendant’s motion for a new trial and in refusing a new trial,” is insufficient because too general. It is presumed that it was merely intended to show that the questions raised by the prior assignments were presented to the court below on the motion for a new trial.
There is no error in the proceedings of the court below, and the judgment is affirmed.
Affirmed.