.(dissenting),
I respectfully dissent from the order of affirmance.
This collision occurred in the 1800 block on sixty-foot-wide San Pedro Avenue, some distance from the business section of the City of San Antonio, at 10:30 on a summer morning. Mrs. Epperson was driving south in a Dodge automobile and appellant’s agent, Riley, was driving north in an ambulance, returning a hospital patient to his ho'me. There was no other vehicular traffic in the block at the time. At Mrs. Epperson’s side was her five-months-old baby, riding in a baby chair resting on but not attached to the car seat. The Dodge car was equipped with the now familiar gear shift attached to the shaft just under the steering wheel. The knob on this gear shift was of a bright color, such as naturally attracts the attention of infants, as we all well know. Just before reaching a street intersection, and as the car was moving along at twenty to twenty-five miles per hour, the baby suddenly reached for the knob, which caused the baby chair and its occupant to topple towards the dash and the floor of the car. The mother, disregarding all other considerations than what appeared to her to be the most immediate danger to her baby, took both hands from the steering wheel and turned all her attention and energies to an effort to rescue her baby from the impending fall. By this movement she yielded all control of her car, which turned to the left and moved towards a service station on the opposite side of the street. The ambulance driver, unaware of Mrs. Epperson’s difficulties and assuming that she was making the turn to go into the service station towards which her car was headed, slowed down somewhat to permit the supposed movement. When she had gotten past the center of the street, Mrs. Epperson, realizing that her car, out of/ her control, had passed over to the wrong side of the street and across the path of the on-coming ambulance, put her left foot on the brake and grasped the steering wheel with her left hand, while still struggling with her right to rescue her baby. By these maneuvers site suddenly swung her car south and headed it back directly into the path of the approaching ambulance. The result was a head-on collision between the two vehicles. At the time of the impact the ambulance was moving north in about the center of its right side of the street, ?od the Dodge car was moving south in *515about the center of its wrong side. The speed of the Dodge had been slightly reduced, while that of the ambulance had slowed to about five miles per hour. The rebound from the collision was only about one foot. The impact was such as to crush the front end and parts of the ambulance, and throw its sick passenger from his cot to the floor of the vehicle, injuring him. This suit was brought by appellant, Akers, against Mrs. Epperson for damages to the ambulance, which the jury assessed at $500.
The case was submitted upon forty-six special issues, a number of which the jury refused, or at least failed, to answer. In those issues, thus ignored, the jury was asitea it mrs. Jipperson was negligent in the commission of or failure to do certain acts each of which the jury found she committed or omitted and which they also found was a proximate cause of the collision. The parties do not here complain of the jury’s failure to answer those issues, however.
Appellant’s primary contention is that the jury finding that the collision was proximately caused by excessive speed oí the ambulance was not supported by, but was against, the great preponderance of the evidence; that that issue of proximate cause wholly lacked the essential element of foreseeability.
The driver of the ambulance whose apparent attitude lacked all the elements of partisanship, testified that he was driving at the normal speed, in such cases, of twenty miles per hour, although admitting on cross-examination that he “might” have been driving as much as twenty-five miles per hour, as the vehicle “could” move at a faster rate than twenty miles per hour. No other witness testified or gave an opinion as to the speed of the ambulance.
Jury findings eliminated the questions of unavoidable accident and discovered peril, and exonerated the ambulance driver from the duties of keeping a better lookout, or better control, or turning to the right or to the left in avoidance of the Epperson car. When all these elements were removed from the case against the ambulance driver, there remained only the stark fact that when the Epperson car was moving safely across the street in the direction of the service station immediately ahead of her and while crossing the path of the approaching ambulance it suddenly changed its course by turning back directly into the course of the ambulance, thereby violating all known pertinent traffic statutes and ordinances, and bringing about the collision. It is not contended that the collision would have occurred had Mrs. Ep-person continued her course across the street. It is inconceivable that a normal person in the ambulance driver’s place could reasonably have foreseen that the Epperson car would thus suddenly turn from a safe course, and unlawfully head back down the wrong side of the street and directly into the path of the ambulance, which had then slowed down from the speed of twenty or twenty-five miles to allow Mrs. Epperson to safely continue in her apparent course across the street. The jury finding that the collision was proximately caused by the speed of the ambulance is, in my opinion, under the undisputed facts, irrational and arbitrary, and in such case the courts will look for extraneous influence which might have operated upon the minds of the jury to induce such finding. It is not difficult to discover that influence in this case, as we shall see in considering appellant’s contention .of misconduct of the jury.
On the hearing of appellant’s motion for new trial some of the jurors testified as to the conduct of Juror Boswell during the deliberations of the jury. His own testimony and that of his fellows made it obvious that Juror Boswell is an unusually intelligent and positive, if not domineering character. For example, at the beginning and throughout the jury’s deliberations, according to his testimony, he contended to his colleagues that the trial judge’s definition of “negligence” meant, “a wilful neglect to do something that an ordinarily prudent person would do.” Other jurors disagreed with Boswell on this interpretation of the Court’s definition, but Boswell persisted throughout the deliberations, so that ’at times the controversy grew quite heated, and at one time approached near to personal difficulties. As one result, the jury made written request of the trial judge to elaborate his definition of the term “negligence,” which was properly denied, in view of the plain and’ accurate definition given in the charge. But, however much or vehemently the other jurors may have at first differed with Boswell’s definition, his contentions seemed to prevail, at least in part, for, while in answering several issues they found that certain acts of Mrs. Epperson were each a proximate cause of the collision, they refused, or at least failed, to answer specific questions *516of whether or not such acts were negligent; for to do so they would be obliged to find her acts were wilfully careless, under Boswell’s definition. It is true that none of the parties complain here of Boswell’s conduct in this connection, or of the jury’s disregard of the issues of the negligence of Mrs. Epperson. But these matters are adverted to as evidence of Juror Boswell’s dogmatic attitude and of his obvious domination of the jury.
We come now to the overt acts charged by appellant against Juror Boswell as constituting material misconduct. As stated, the only direct evidence of the speed of the ambulance was the testimony of its driver that when the Epperson car turned across the street in front of the ambulance he was driving at about twenty miles per hour, or possibly twenty-five. The indirect or circumstantial evidence was that the ambulance made sldd marks as much as twenty-five to twenty-eight feet; that a car going twenty miles per hour could be brought to a stop within eighteen feet. No witness hazarded any opinion of the speed of the car, based on the skid marks, or from any other hypothesis. But, during the deliberations of the jury Juror Boswell "left the impression” with his colleagues that he was an experienced automobile man, telling them, apparently repeatedly, that he had operated filling stations for years, was a “service station man and mechanic.” According to his own testimony concerning his statements to tlie jury, Boswell was asked and answered:
“A. I stated that in my opinion the vehicle of that particular type, under the evidence introduced here, would , be running forty miles an hour, or more.
“Q. You are an automobile mechanic, are you not? A. Service station man and mechanic.
“Q. You run a garage along with a service station ? A. Yes, sir.
“Q. Did you relate to the jury that you were a garage man? A. The jury knew that before we went in.
“Q. Did you tell .them you were a garage man? A. Sure.
“Q. And it was on the particular discussion of the skid marks in relation to the speed of the vehicle, was it not? A. No, I don’t remember stating that at that particular time. I stated my knowledge acquired over a period of twenty years in the operation of vehicles.
*y. lou had had occasion many times to observe skid marks, in your occupation as a mechanic, hadn’t you ? A. As had all the other members of the jury.
“Q. And you, of course, told the jury that being a garage man and having observed many vehicles, that in your opinion a vehicle that left skid marks twenty-five feet long was proceeding at a speed of forty miles an hour ? A. I' have no recollection of any such statement.
"Q. Just exactly what did you say, Mr. Boswell? A. As I stated before, I don’t remember the exact words I used in support of my argument but I did use my knowledge of an ambulance in the condition that one would be.
“Q. Was there an argument, Mr. Boswell, among the members of the jury in that particular discussion? A. It was discussed, I suppose, by every juror on the jury. That was our purpose in the jury room. * * *
“Q. Mr. Boswell, had you on previous occasions ever observed skid marks left by any vehicle? * * * A. Certainly.
“Q. Did you relate to' the jury any of the observations you had made on previous occasions? A. Not on any specific occasion.
“Q. What do you mean by any specific occasion? A. Not any specific case.
“Q. State what you did say. A. I stated that to my knowledge a vehicle of that weight and in that condition (which was not disclosed in the evidence), skidding twenty-eight feet, would be running forty or more miles an hour, and especially when the witness sat here on the witness stand and stated that he did not bring the vehicle to a sudden stop; that he slowed it down; and then when he saw the accident was inevitable he skidded twenty-eight feet. My argument was that the vehicle was running forty or more miles per hour, based entirely on listening.” (Emphasis ours.)
Juror Mattfeldt testified in part:
“Q. Do you recall there was evidence in the trial of the case as to the length of the skid marks that were left by the ambulance? A. I recall that evidence.
“Q. Do you recall the evidence showed the skid marks were twenty-five to twenty-eight feet long? A. Correct.
“Q. Was there any discussion in the jury room as to the speed of the ambulance as *517shown by the skid marks ? A. Yes. There was considerable discussion.
“Q. Do you recall what, if anything, Mr. Boswell said with reference to that? A. That the ambulance must have been going at an excessive rate of speed because of the skid marks.
“Q. Was that Mr. Boswell’s statement? A. Yes, sir.
“Q. Did he make any statement as to what his experience had been in dealing with automobiles? A. Well, he was a rather positive individual and he felt certain about that point, that due to the skid marks the ambulance must have been traveling at an excessive rate.
“Q. Did he say anything about what his business was? A. I understood him to say he was the operator of two gasoline stations; he and his brother did.
“Q. Did he say he had had frequent opportunity to notice vehicles ? A. That’s the impression I got. * * *
“Q. What did Mr. Boswell say? A. I would have to start at the beginning.
“Q. Can you tell us just approximately what he said with reference to the skid marks of the ambulance? A. I think I stated that. That in view of the fact that somebody had testified that the skid marks were about twenty-five feet long, or thereabouts, that the ambulance must have been traveling at an excessive rate of speed. ‘Zooming down the street.’ We didn’t use technical language.” (Emphasis ours.)
The effect of these excerpts from the record, wholly undenied, is that Juror Boswell testified in the jury room that in his opinion as an expert, in view of testimony that the ambulance left skid marks twenty-eight feet long, the ambulance was moving at an “excessive” speed, “zooming down the street” at a speed of forty miles or more per hour.
In my opinion, without questioning his good faith and sincerity, Juror Boswell’s statements to the jury, of facts not testified to, if not directly negatived, in open court, clearly constituted misconduct; and, further, and especially in view of his obvious influence over the jury, that this misconduct probably induced the jury’s findings against appellant on the controlling ÍS' sues relating to the speed of the ambulance.
For these reasons I think the judgment should be reversed and the cause remanded for a new trial.