delivered the opinion of the court.
The suit was by a private person against a railroad corporation. A previous one of the same sort had been tried between one Eoss and the same corporation at the same term of the court, when the jury had brought in a verdict in favor of the railroad company under the instructions of the court so to do.
*55When the jury in the present case was being impaneled, the counsel for the company sought in every way possible to elicit from the jurors then tendered information as to whether they had been members of the Ross jury, and had not with great reluctance found a verdict for the company only because instructed by the court so to do, and whether in the absence of such instructions they had been willing to find a verdict for the railroad. All such questions the court, on motion, excluded, but itself propounded to the jurors the question as to whether they felt as free to do justice between the parties as if it were a litigation between private persons, and upon their answering in the affirmative they were sworn.
The action of the court was correct. All that the parties had a right to ask, to wit: an impartial jury,was secured. The case on trial had nothing to do with the one which had been concluded, and no inquiry in relation to the former case was admissible. If on account of their feeling in that case the jurors were incompetent to try the case then pending, they were equally incompetent in all subsequent cases, and never could sit if challenged in the future. This would have been establishing a new and wholly unwarranted test of competency.
The question put by and satisfactorily answered to the court was . all-sufficient.
The suit was for the value of some cross-ties, which had been first rejected but afterward taken and used by the railroad company.
These ties, both good and rejected, had originally been bought of the plaintiff by one Liddell. A portion had been accepted and a portion rejected by the railroad. The present suit was only for the value of those rejected, though afterward taken, but the court allowed the plaintiff to prove, among other' things, the price paid to him by Liddell for those which were accepted by the railroad company.’ There was great difficulty in proving the value of the ties first rejected. The court properly allowed proof of the value of the ties paid for by Liddell as enabling the jury thereby to fix the value of those sued for. It was a mere circumstance in arriving at the value of the others, but was admissible.
*56The court properly allowed the plaintiff to reopen his case and recall witnesses upon the point of value, he having omitted previously to make proof thereof. It was wholly within the discretion of the court to admit new proof, and we see no abuse of that discretion.
There was much difficulty in telling the exact number of ties taken by the railroad. This number the plaintiff approximated as nearly as he could, and left the exact number to be determined by the jury. This was right, and it was not error to refuse to tell them that they could not find any verdict, because the exact number was not ascertained by the plaintiff. The exact number could readily have been given by the railroad employees, but since they failed to give it, it was certainly competent for the jury to approximate it by an estimate, which they did, the data for that estimate being given them by the witnesses for the plaintiff.
We think that no injustice was done by the verdict and the
Judgment is affirmed.