[142]*142Mr. Justice Smith
delivered the opinion of the Court.
This suit was filed in the District Court of Harris County by Harold E. Crawford against Herman E. Detering and Carl A. Detering, doing business as The Detering Company, to recover damages for the personal injuries alleged to have been received by Crawford as a result of a collision between a Chevrolet automobile driven by him and a truck owned by the Deterings and driven by James Debose.
The case was submitted to a jury in the district court on forty-five special issues, and, thereafter, the jury returned its verdict, which was duly received by the court. The trial court, after considering the answers of the jury to the special issues submitted, rendered judgment that plaintiff take nothing from said defendants.
In due time, the plaintiff filed his motion for new trial, alleging that while the jury was deliberating, and at a material time during its deliberations, the members of the jury were guilty of misconduct, in that at least one of the jurors related personal experiences and expert knowledge concerning a closely contested and disputed matter. The defendants filed an answer to the motion for new trial, and specially denied that any material misconduct prejudicial to the plaintiff’s cause resulted during the deliberations of the jury.
The issue having been thus joined, the trial court proceeded to hear evidence thereon and at the close of the testimony overruled the motion, stating in its order that “the law is with the defendants and against the plaintiff.” The trial court filed its Findings of Fact and Conclusions of Law on the issue of misconduct. The plaintiff appealed to the Court of Civil Appeals at Galveston, and that Court affirmed the judgment of the district court. 234 S.W. 2d 123.
The case is here on only one point of error, which reads as follows:
“The error of the Court of Civil Appeals in affirming the judgment of the trial court in refusing to hold the trial court erred in overruling petitioner’s motion for new trial in which it was alleged that the juror, Landes, while the jury was deliberating and discussing the answer that should be given to Special Issue No. 39, testified in the presence of all the jurors as to his expert knowledge and opinion concerning the length of time it would take a bus to stop on a highway traveling at [143]*143a certain rate of speed, which testimony was not before the jury from any source and was not knowledge to the public in general, and same constituted material misconduct calculated to and probably resulting in an improper verdict in this cause.”
Under Rule 327 of the Texas Rules of Practice and Procedure in Civil Actions, the plaintiff in this case was required to show, in order to obtain a new trial upon the grounds of jury misconduct that (a) the misconduct complained of in fact occurred, (b) it was material, and (c) it was calculated to and probably did result in harm to him.
Eleven of the jurors testified on the motion for new trial, and their testimony on the issue of jury misconduct is fairly reflected in the findings of fact filed by the trial court, which are as follows:
“1. The jury went out about 2:30 P.M., on January 30, 1950.
“2. They were dismissed that night about 10:00 o’clock P.M., and returned the next morning at 8:30 A.M.
“3. Shortly before noon on the 31st of January, 1950, the jury was attempting to answer Special Issue No. 39. At that time they had answered Special Issues Nos. 35, 36, 37 and 38 in the affirmative to the effect that from the preponderance of the evidence the defendants’ truck driver, immediately before the collision in question, turned his said truck into the center lane of the highway at a time when the plaintiff was in a position of peril, and that said truck driver discovered plaintiff in a position of peril and realized that plaintiff could not and in reasonable probability would not be able to extricate himself from such position of peril.
“4. The jurors discussed at some length Special Issue No. 39, as contained in the court’s charge, inquiring of the jury whether the driver of the defendant’s truck discovered and realized the plaintiff’s position of peril in time to have avoided the accident in question with the use of the means at hand, commensurate with his own safety and the safety of his vehicle, but were unable to agree.
“The jury had taken two votes on Special Issue No. 39 and stood nine to three in favor of answering the issue ‘No.’. Jurors C. E. Putnan, Herbert L. Hertz and H. C. Doan had voted that Special Issue No. 39 should be answered ‘Yes.’
“5. At this stage of their deliberation, and while the jurors were awaiting to go out to lunch, one or more of the jurors [144]*144turned to Mr. M. E. Landes, who was known to be a bus driver by occupation, and asked Mr. Landes how long it takes to stop a bus.
“6. Mr. Landes, in response to the inquiry, told about some tests which his Bus Company employer made to test mental reactions of prospective employees. He stated that two sulphur guns would be placed on the bumper of the bus and after it had attained a speed of more than 30 miles per hour, a passenger would pull a string and explode one of the guns, which would leave a mark on the pavement. The explosion would also be a signal for the bus driver to try to stop the bus. When an application of the brakes was made, the second gun would explode automatically, thus making another mark on the pavement. The distance between the marks on the pavement and the place where the bus would come to a stop would indicate the reaction time of the driver and also the distance it would take to stop the bus. Landis made the statement: ‘You would be surprised how far it takes a bus to stop.’ He also stated that a bus had air-brakes and can stop quicker than a truck, which has hydraulic brakes.
“7. The discussion by Mr. Landes took about three minutes, and shortly thereafter the jury went to lunch.
“8. Upon their return from lunch the jury, after some further discussion, voted again on Issue No. 39 and answered unanimously in the negative.”
Having read the testimony of the eleven jurors and the findings of fact set out above, we hold that such evidence and findings of fact conclusively show that the statement made by the juror, Landes, actually occurred before the jury answered Issue No. 39.
In order to determine the question of whether the statement of juror, Landes, constituted misconduct of a material nature and that probably injury resulted to plaintiff, we deem it necessary to look to the entire record as well as the evidence introduced on the motion for new trial.
Plaintiff testified that on February 10, 1949, he was driving a Chevrolet automobile on the Houston-Baytown Road; that it was a three-lane highway; that he was traveling in an easterly direction at a speed of around fifty-five miles per hour; that he kept his car in the south lane and while in said lane he could see another car ahead traveling in the same direction; that he gradually overtook this car and when he was about fifty feet behind it, he turned his car into the center lane, which was [145]
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[142]*142Mr. Justice Smith
delivered the opinion of the Court.
This suit was filed in the District Court of Harris County by Harold E. Crawford against Herman E. Detering and Carl A. Detering, doing business as The Detering Company, to recover damages for the personal injuries alleged to have been received by Crawford as a result of a collision between a Chevrolet automobile driven by him and a truck owned by the Deterings and driven by James Debose.
The case was submitted to a jury in the district court on forty-five special issues, and, thereafter, the jury returned its verdict, which was duly received by the court. The trial court, after considering the answers of the jury to the special issues submitted, rendered judgment that plaintiff take nothing from said defendants.
In due time, the plaintiff filed his motion for new trial, alleging that while the jury was deliberating, and at a material time during its deliberations, the members of the jury were guilty of misconduct, in that at least one of the jurors related personal experiences and expert knowledge concerning a closely contested and disputed matter. The defendants filed an answer to the motion for new trial, and specially denied that any material misconduct prejudicial to the plaintiff’s cause resulted during the deliberations of the jury.
The issue having been thus joined, the trial court proceeded to hear evidence thereon and at the close of the testimony overruled the motion, stating in its order that “the law is with the defendants and against the plaintiff.” The trial court filed its Findings of Fact and Conclusions of Law on the issue of misconduct. The plaintiff appealed to the Court of Civil Appeals at Galveston, and that Court affirmed the judgment of the district court. 234 S.W. 2d 123.
The case is here on only one point of error, which reads as follows:
“The error of the Court of Civil Appeals in affirming the judgment of the trial court in refusing to hold the trial court erred in overruling petitioner’s motion for new trial in which it was alleged that the juror, Landes, while the jury was deliberating and discussing the answer that should be given to Special Issue No. 39, testified in the presence of all the jurors as to his expert knowledge and opinion concerning the length of time it would take a bus to stop on a highway traveling at [143]*143a certain rate of speed, which testimony was not before the jury from any source and was not knowledge to the public in general, and same constituted material misconduct calculated to and probably resulting in an improper verdict in this cause.”
Under Rule 327 of the Texas Rules of Practice and Procedure in Civil Actions, the plaintiff in this case was required to show, in order to obtain a new trial upon the grounds of jury misconduct that (a) the misconduct complained of in fact occurred, (b) it was material, and (c) it was calculated to and probably did result in harm to him.
Eleven of the jurors testified on the motion for new trial, and their testimony on the issue of jury misconduct is fairly reflected in the findings of fact filed by the trial court, which are as follows:
“1. The jury went out about 2:30 P.M., on January 30, 1950.
“2. They were dismissed that night about 10:00 o’clock P.M., and returned the next morning at 8:30 A.M.
“3. Shortly before noon on the 31st of January, 1950, the jury was attempting to answer Special Issue No. 39. At that time they had answered Special Issues Nos. 35, 36, 37 and 38 in the affirmative to the effect that from the preponderance of the evidence the defendants’ truck driver, immediately before the collision in question, turned his said truck into the center lane of the highway at a time when the plaintiff was in a position of peril, and that said truck driver discovered plaintiff in a position of peril and realized that plaintiff could not and in reasonable probability would not be able to extricate himself from such position of peril.
“4. The jurors discussed at some length Special Issue No. 39, as contained in the court’s charge, inquiring of the jury whether the driver of the defendant’s truck discovered and realized the plaintiff’s position of peril in time to have avoided the accident in question with the use of the means at hand, commensurate with his own safety and the safety of his vehicle, but were unable to agree.
“The jury had taken two votes on Special Issue No. 39 and stood nine to three in favor of answering the issue ‘No.’. Jurors C. E. Putnan, Herbert L. Hertz and H. C. Doan had voted that Special Issue No. 39 should be answered ‘Yes.’
“5. At this stage of their deliberation, and while the jurors were awaiting to go out to lunch, one or more of the jurors [144]*144turned to Mr. M. E. Landes, who was known to be a bus driver by occupation, and asked Mr. Landes how long it takes to stop a bus.
“6. Mr. Landes, in response to the inquiry, told about some tests which his Bus Company employer made to test mental reactions of prospective employees. He stated that two sulphur guns would be placed on the bumper of the bus and after it had attained a speed of more than 30 miles per hour, a passenger would pull a string and explode one of the guns, which would leave a mark on the pavement. The explosion would also be a signal for the bus driver to try to stop the bus. When an application of the brakes was made, the second gun would explode automatically, thus making another mark on the pavement. The distance between the marks on the pavement and the place where the bus would come to a stop would indicate the reaction time of the driver and also the distance it would take to stop the bus. Landis made the statement: ‘You would be surprised how far it takes a bus to stop.’ He also stated that a bus had air-brakes and can stop quicker than a truck, which has hydraulic brakes.
“7. The discussion by Mr. Landes took about three minutes, and shortly thereafter the jury went to lunch.
“8. Upon their return from lunch the jury, after some further discussion, voted again on Issue No. 39 and answered unanimously in the negative.”
Having read the testimony of the eleven jurors and the findings of fact set out above, we hold that such evidence and findings of fact conclusively show that the statement made by the juror, Landes, actually occurred before the jury answered Issue No. 39.
In order to determine the question of whether the statement of juror, Landes, constituted misconduct of a material nature and that probably injury resulted to plaintiff, we deem it necessary to look to the entire record as well as the evidence introduced on the motion for new trial.
Plaintiff testified that on February 10, 1949, he was driving a Chevrolet automobile on the Houston-Baytown Road; that it was a three-lane highway; that he was traveling in an easterly direction at a speed of around fifty-five miles per hour; that he kept his car in the south lane and while in said lane he could see another car ahead traveling in the same direction; that he gradually overtook this car and when he was about fifty feet behind it, he turned his car into the center lane, which was [145]*145clear and unobstructed; that he was some 200 or 300 yards from the scene of the accident when he started to pass; that his front bumper was about even with the door of the car he was passing when the collision occurred; that he had been in the middle lane for some three or four minutes, and that the road was clear ahead of him when he entered the middle lane; that he saw a car and a truck some distance ahead of him traveling in a westerly direction and that both vehicles were in the north lane; that the truck was at least one hundred yards behind the car when he first saw it; that the road was straight from the point where he turned into the center lane to the point where the car and truck were when he first saw them and that he had a clear view ahead of him; that the truck gained on the car ahead of it and that as the truck got up to the car, the driver of the truck, without warning, turned it into the center lane; that he was about 50 feet from the truck when it came into the center lane.
The defendants, through their driver, relate an entirely different version.
James Debose, the driver, testified that he was driving about 30 miles per hour as he approached where the accident later happened; that the car which had been ahead of him pulled off on the shoulder of the road and stopped, and that he did not have to pull over into the center lane to pass it; that just before the collision, plaintiff’s car suddenly came from behind the car ahead of him and swerved and went into a skid; that he, Debose, put on his brakes and began trying to get off the highway; that the Chevrolet driven by plaintiff ran into his truck while his truck was partly on the north lane and partly off the pavement on the north side.
He further testified that he saw plaintiff’s car coming when it was some 200 or 210 feet away, and that he saw it was in trouble because it was swerving; that he turned his truck to the right and put on his brakes, and that he had practically stopped when plaintiff’s car hit him; that “I stopped it right there dead.”
Then, he further testified: “You can not stop right dead still with no truck or no car, you can’t stop right dead still, you have to have a little time for your brain to react to get to your brakes, then it takes thirty or forty feet to stop. You can’t bring a truck to a dead still, to a stop, driving at a rate of thirty miles an hour.”
[146]*146“No, sir, because it takes me a little while, maybe fifteen or twenty feet, before I could get on my brakes to stop.”
As to the question of the position of the car and truck involved in this accident, the jury, in answer to Special Issue No. 1, made its finding that the plaintiff, at the time and immediately before the collision, was operating his car in the center lane of the highway in the act of passing another vehicle proceeding in the same direction. (Emphasis added.)
In answer to Special Issue No. 2, the jury made its finding that the defendant’s truck driver, immediately before the collision in question turned said truck into the center lane of the highway when it was occupied by the plaintiff’s automobile. (Emphasis added.)
The jury accepted plaintiff’s version on these two important questions. However, the jury found the defendant driver guilty of no acts of primary negligence, and petitioner, Crawford, guilty of no acts of contributory negligence.
We shall now turn to the issues of discovered peril. The plaintiff’s pleadings raised the issue, and the trial court, after hearing the pleadings and the evidence, submitted the Special Issues Nos. 36, 37, 38 and 39, all relating to' the issue of discovered peril. We have examined the transcript before us and fail to find any objection on the part of the defendants to the submission of these issues. However, in view of the evidence in this case, we believe the trial court was correct in submitting the issue of discovered peril to the jury for its consideration. Vontsteen v. Rollish, 133 S.W. 2d 589.
In answer to Issues Nos. 36, 37 and 38, the jury made its findings of fact (a) that plaintiff was in a position of peril prior to the collision; (b) that defendant’s driver discovered the plaintiff in such position of peril prior to the collision; (c) that after making such discovery, the truck driver realized that plaintiff could not and in reasonable probability would not be able to extricate himself from such position of peril.
The jurors discussed at some length special issue No. 39. Two votes were taken and each time the vote was nine to three in favor of answering the issue “No.” The jury was dead-locked until the juror Landes, in response to a question propounded by one of the jurors, gave his personal experience and expert [147]*147knowledge, as set out above. Prior to this occurrence the jurors had confined their deliberations to the evidence introduced in the trial of the case. The evidence legally before the jurors was, in our opinion, sufficient to authorize the court to submit the issue involving the element of “time” to the jury.
This was a closely contested issue, but according to defendant’s testimony, their truck driver could have discovered the perilous position of Crawford when he was a distance of 200 or 210 feet away. James Debose testified that Crawford was at least that distance when he saw' him swerving his car and saw that he was in trouble. By this testimony, the defendant does fix a distance sufficient that he could have discovered the perilous position of Crawford in time to have avoided the collision. According to the evidence and the answer of the jury to Special Issue No. 1, the plaintiff was in the center lane in the act of passing another vehicle, and the jury further found that the defendant’s driver turned into the center lane while it was occupied by plaintiff, Crawford.
This vital issue should have been answered from a preponderance of the evidence introduced in open court. The fact that juror, Landes, did not give any measurements, time or distance, does not remove the harmful effects of his testimony. He stated that he did not give such facts because of the element of reaction time, but he did state that “you would be surprised how far it takes a bus to stop,” and that it required a longer time to stop a truck than a bus.
This statement of the juror, Landes, came at a time after the jurors had entered into and ended an exhaustive discussion of the evidence before it and had been unable to reach an agreement.
The evidence in this case reflects that the driver of defendant’s truck was about 50 years of age; he testified that it took him about 15 or 20 feet to react and apply the brakes. Juror, Landes, related his test and stated “the distance between the marks on the pavement and the place where the bus would come to a stop would indicate the reaction time of the driver, and also the distance it would take to stop the bus.” It is entirely possible that the jurors, after hearing the testimony, could have decided that the 50-year old truck driver underestimated his reaction time.
Respondents contend that the matters related by juror [148]*148Landes, were of common knowledge, and were general in nature. With this contention, we cannot agree. He related a test that was unknown by the other jurors with the possible exception of one. The others testified that they had never heard of such a test. The jurors recognized Mr. Landes to be a person with specialized training, otherwise they would not have turned to bfm for information. If it were a matter of common knowledge, then no one should be surprised or amazed.
Since the plaintiff met the burden which rested upon him on his motion for new trial and that same should have been granted, the judgment of the trial court and the Court of Civil Appeals is reversed and the cause is remanded to the district court for another trial.
Opinion delivered March 14, 1951.