(dissenting).
This suit arose out of the death of metm hers of the Gregory family when their car stopped or stalled on the railroad tracks and was struck hy one of the railway’s engines. Upon a trial to the jury, judgment was for the defendant railway. That judgment was reversed by the Court of Civil Appeals at Texarkana because of jury misconduct. 377 S.W.2d 847. I would affirm the action of the Court of Civil Appeals.
The controlling question is whether the jury misconduct, which admittedly occurred, was material and probably resulted in injury to the plaintiffs’ case. Rule 327, Texas Rules of Civil Procedure. The trial court found that the misconduct occurred but held that it was harmless and probably did not result in injury to the plaintiffs’ case. Whether the misconduct occurred is a question of fact, and that issue has been determined. Whether it probably resulted in injury is a question of law. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Pope, Jury Misconduct and Harm, 12 Baylor Law Review 355, 356 (1960).
On the question of the materiality of the jury misconduct and of probable harm, I am impressed with the following facts and circumstances: members of the train crew testified that the Gregory car stopped dead astride the rails; that the driver had plenty of time to get the car off the track if his car had been in good condition. The fireman could not explain why it did not move on. The jury found that neither the train operators nor Butch Gregory, the driver of the car, failed to keep a proper lookout. It found the train operators guilty of certain acts of negligence (failure to sound its horn or ring its bell at least 80 rods from the crossing), but found that these acts were not a proximate cause. It found that the horn and bell were operating [immediately] prior to the collision, and that it was negligence for Butch Gregory not to heed them, and that this was a. proximate cause. Then it found that. Butch Gregory neither stopped the car, nor permitted it to stall, on the tracks; and that he did not fail to keep the car under proper control. It found that Butch Gregory failed to yield the right-of-way to the railroad, but this was not a proximate cause.. It further found that though the train was in dangerous proximity to the Gregory car as it approached the tracks, this was not a proximate cause; and that Butch Gregory’s failure to stop within 15 feet of the track was not a proximate cause. It found that Butch Gregory failed to drive forward off the tracks, but that this was not negligence.
Why, then, did Butch Gregory not move off the tracks ? If the negligent acts of the train crew were not the proximate cause of the accident, what was? The juror Bradford testified on motion for new trial that he remembered that a grocer, Vaughn, had told him that Butch had been having carburetor trouble with that car on the day before the accident. The same juror, one evening during the course of the trial, drove the juror Anderson home from the courthouse. Bradford told Anderson about the conversation he had had with Vaughn, about the Gregory car having the defective carburetor the day before the Gregory car failed to move off the track. Bradford said he remarked to Anderson that he “wondered why they [the railroad] hadn’t brought it out.” Anderson asked what carburetor Bradford was talking about, and Bradford explained that he was talking about the carburetor on Butch Gregory’s car. This unquestionably was jury misconduct. The juror Anderson confirmed that this conversation took place. He did not comment to Bradford on the matter.
*35On the following day, while the case was still being tried, Bradford went back to the grocer Vaughn at his store, and told him he had been expecting him, Vaughn, to be a witness at the trial. Bradford said, “I had been looking for him up here since he had told me about the carburetor.” Bradford said he asked Vaughn, “Didn’t you tell me immediately after this wreck that this boy was having trouble there?” Vaughn did not reply to the question; “he laughed it off.” This action by Bradford was also, beyond question, jury misconduct.
There was no testimony upon the trial that the Gregorys had been having carburetor trouble before the accident. The railroad had unsuccessfully attempted to establish that fact. Bradford deliberately made a trip to Vaughn’s grocery store to attempt to confirm Vaughn’s statement to him that Butch Gregory had been having car trouble. Bradford apparently remained convinced that Vaughn had told him that, even though when confronted with the question, Vaughn “laughed it off,” whatever that may mean. Mrs. Gregory testified that some six months before the accident, there had been carburetor trouble; but Mr. Gregory had had a new motor put in the car, and there had been no further difficulty. The information which Bradford furnished the juror Anderson was calculated to impeach the credibility of Mrs. Gregory’s testimony. Even though there was evidence that neither Bradford nor Anderson had discussed this matter with any other juror, the testimony which juror Bradford gave the juror Anderson furnishes a logical explanation for the jury’s findings: that Gregory did not stop his car or [intentionally] permit it to stop, on the tracks; that he and the train crew were both keeping a proper lookout; and the train crew’s negligence was. not the proximate cause of the collision. The explanation would be that the car stalled because of the carburetor. Hence Gregory’s failure to move was not negligent conduct. He could not move.
I am unable to say, under these circumstances, that'the misconduct was harmless and did not result in probable harm. “The burden of the complaining party is met by showing that the trial which resulted in a judgment against him was materially unfair.” Texas Employers’ Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958). I would hold that the misconduct was material and probably resulted in harm.