Mr. Chief Justice BBOWN
delivered the opinion of the court.
An answer to the application for writ of error having been filed, and the- application granted, the case will now be disposed of.
Defendant in error instituted this suit in the District Court of Harris County, seeking to recover from the railroad company damages for an injury received while he was in the employ of said company as foreman and while engaged “in hauling and unloading gravel from a train on the railroad of the plaintiff in error.” Negligence which caused the injury was set up in’ separate counts, but each ■ count is in the same language, except as to the specific negligence.
The petition alleged:
“That while he was so engaged in riding, standing about the center of-a flat car, or at any rate, thereon, where he had a rigid to be (which car was the second car from the caboose at the north end of said train) the brakes were unexpectedly to him, suddenly applied and the car suddenly and abruptly stopped, as would be in an instantly applied emer
gency, whereby he was thrown northward about fifteen feet to the end of the car, and caused to fall onto and against the car and from the car to the ground,” whereby he sustained injuries which were specifically alleged, together with the items of his pecuniary damage.
The District Court submitted two of the acts of negligence alleged in this language. The allegation of negligence in the first count reads: “That one of defendant’s employees engaged in operating said train, being one of the operatives thereof, in the course of his service for defendant in that behalf, and acting within the scope of his employment for it, while said train was moving as aforesaid, uncoupled cars of said train without turning the angle cocks and confining the air, whereby said cars separated and thereby burst or parted the air line or hose, by means whereof the air was suddenly applied to the brakes and the car on which plaintiff was riding suddenly and abruptly stopped as aforesaid; which act on the part of defendant’s said employee in so handling said car, was negligence towards plaintiff, and a proximate cause of the injuries suffered by him as aforesaid.”
The allegation of negligence in the third count reads:
“That aforesaid train, so causing injury to plaintiff as aforesaid, including its operation, handling and equipment, was under the exclusive management and control of the defendant or its employees other than plaintiff, and that the accident to plaintiff, so occasioned as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control use proper or ordinary care; and plaintiff’s said injuries so suffered on account of said brakes being suddenly applied so as to produce said sudden and abrupt stop of the car, were proximately caused by negligence of the defendant or of its agents or employees acting for it within the scope of their employment in that behalf, due to a want of ordinary care, either in the operation or handling or in the equipment of said train, whereby it was, on account of negligence of the defendant or imputable to it, either improperly operated or handled defectively or insufficiently equipped; but- the particular or particulars of which negligence are unknown to plaintiff, and he can not ,more definitely or with greater certainty specify such.
Defendant answered by general denial and plea of assumed risk and contributory negligence.
Upon the issues raised by the pleadings, the jury was instructed:
“If you believe, from the evidence, that one of defendant’s employees engaged in operating the train in question uncoupled the cars of the train without turning the angle cocks and confining the air, and that thereby the cars were caused to separate and to burst or part the air hose and to apply the air to the brakes, and that the effect of this was to stop the car on which plaintiff was riding, suddenly and abruptly, and that by reason thereof plaintiff was thrown and caused to fall and suffer injuries substantially in the manner alleged, and if you further
believe that such operative in so doing, if he did, was acting within the course of his service and scope of his employment for the defendant, and that such act on his part, if committed, was a want of ordinary care towards plaintiff and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, then find for the plaintiff under the first count of his petition, and so say by your verdict.”
"If you do not find that an operative of the train uncoupled the cars without turning the angle cocks and confining the air, but do believe, from the evidence, that the cars separated and broke or parted the air hose and that thereby the brakes were applied and the car on which plaintiff was riding suddenly and abruptly stopped and that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in the manner alleged, and if you further believe that such an accident does not in the ordinary course of things happen if those who have the management of the train, including its operation and equipment, use reasonable care, and if you further believe that such operation of the cars and application of the brakes and abrupt and sudden stopping of the car oh which plaintiff was riding, if such happened, resulted in some manner, either from improper* operation or defective equipment of the train, and that such was due to a want of ordinary care on'the part of the defendant or of any of its agents or employees acting for it within the scope of their employment, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, if sustained, then find for plaintiff under the third count of his petition, and so say by your verdict.”
"If you find plaintiff entitled to recover under the first count, you need not consider his right to- recover or not under the third count.
"If you do not find plaintiff entitled to recover under the first count, then unless you believe, from a preponderance of the evidence, that some defect in the train existed, and that defendant or its" agents or employees knew thereof, or in the exercise of ordinary care should have known thereof, within a reasonable time to have remedied it, and that such defect, if existing with the knowledge,.or negligent lack of knowledge, on the part of the defendant, was a proximate cause of alleged injuries to plaintiff, then you can not find for plaintiff under the third count under the claim of negligent equipment of the train, and in that event you will decide whether or not plaintiff is entitled to recover under said third count under the claim of negligent operation of the train, as before submitted to you.”
“If your verdict is in favor of the plaintiff and you find him entitled to recover under the first count the form of your verdict will be: 'We, the jury, find for plaintiff under his first count, and assess his damages •at $........ (stating the amount)/
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Mr. Chief Justice BBOWN
delivered the opinion of the court.
An answer to the application for writ of error having been filed, and the- application granted, the case will now be disposed of.
Defendant in error instituted this suit in the District Court of Harris County, seeking to recover from the railroad company damages for an injury received while he was in the employ of said company as foreman and while engaged “in hauling and unloading gravel from a train on the railroad of the plaintiff in error.” Negligence which caused the injury was set up in’ separate counts, but each ■ count is in the same language, except as to the specific negligence.
The petition alleged:
“That while he was so engaged in riding, standing about the center of-a flat car, or at any rate, thereon, where he had a rigid to be (which car was the second car from the caboose at the north end of said train) the brakes were unexpectedly to him, suddenly applied and the car suddenly and abruptly stopped, as would be in an instantly applied emer
gency, whereby he was thrown northward about fifteen feet to the end of the car, and caused to fall onto and against the car and from the car to the ground,” whereby he sustained injuries which were specifically alleged, together with the items of his pecuniary damage.
The District Court submitted two of the acts of negligence alleged in this language. The allegation of negligence in the first count reads: “That one of defendant’s employees engaged in operating said train, being one of the operatives thereof, in the course of his service for defendant in that behalf, and acting within the scope of his employment for it, while said train was moving as aforesaid, uncoupled cars of said train without turning the angle cocks and confining the air, whereby said cars separated and thereby burst or parted the air line or hose, by means whereof the air was suddenly applied to the brakes and the car on which plaintiff was riding suddenly and abruptly stopped as aforesaid; which act on the part of defendant’s said employee in so handling said car, was negligence towards plaintiff, and a proximate cause of the injuries suffered by him as aforesaid.”
The allegation of negligence in the third count reads:
“That aforesaid train, so causing injury to plaintiff as aforesaid, including its operation, handling and equipment, was under the exclusive management and control of the defendant or its employees other than plaintiff, and that the accident to plaintiff, so occasioned as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control use proper or ordinary care; and plaintiff’s said injuries so suffered on account of said brakes being suddenly applied so as to produce said sudden and abrupt stop of the car, were proximately caused by negligence of the defendant or of its agents or employees acting for it within the scope of their employment in that behalf, due to a want of ordinary care, either in the operation or handling or in the equipment of said train, whereby it was, on account of negligence of the defendant or imputable to it, either improperly operated or handled defectively or insufficiently equipped; but- the particular or particulars of which negligence are unknown to plaintiff, and he can not ,more definitely or with greater certainty specify such.
Defendant answered by general denial and plea of assumed risk and contributory negligence.
Upon the issues raised by the pleadings, the jury was instructed:
“If you believe, from the evidence, that one of defendant’s employees engaged in operating the train in question uncoupled the cars of the train without turning the angle cocks and confining the air, and that thereby the cars were caused to separate and to burst or part the air hose and to apply the air to the brakes, and that the effect of this was to stop the car on which plaintiff was riding, suddenly and abruptly, and that by reason thereof plaintiff was thrown and caused to fall and suffer injuries substantially in the manner alleged, and if you further
believe that such operative in so doing, if he did, was acting within the course of his service and scope of his employment for the defendant, and that such act on his part, if committed, was a want of ordinary care towards plaintiff and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, then find for the plaintiff under the first count of his petition, and so say by your verdict.”
"If you do not find that an operative of the train uncoupled the cars without turning the angle cocks and confining the air, but do believe, from the evidence, that the cars separated and broke or parted the air hose and that thereby the brakes were applied and the car on which plaintiff was riding suddenly and abruptly stopped and that by reason thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in the manner alleged, and if you further believe that such an accident does not in the ordinary course of things happen if those who have the management of the train, including its operation and equipment, use reasonable care, and if you further believe that such operation of the cars and application of the brakes and abrupt and sudden stopping of the car oh which plaintiff was riding, if such happened, resulted in some manner, either from improper* operation or defective equipment of the train, and that such was due to a want of ordinary care on'the part of the defendant or of any of its agents or employees acting for it within the scope of their employment, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, if sustained, then find for plaintiff under the third count of his petition, and so say by your verdict.”
"If you find plaintiff entitled to recover under the first count, you need not consider his right to- recover or not under the third count.
"If you do not find plaintiff entitled to recover under the first count, then unless you believe, from a preponderance of the evidence, that some defect in the train existed, and that defendant or its" agents or employees knew thereof, or in the exercise of ordinary care should have known thereof, within a reasonable time to have remedied it, and that such defect, if existing with the knowledge,.or negligent lack of knowledge, on the part of the defendant, was a proximate cause of alleged injuries to plaintiff, then you can not find for plaintiff under the third count under the claim of negligent equipment of the train, and in that event you will decide whether or not plaintiff is entitled to recover under said third count under the claim of negligent operation of the train, as before submitted to you.”
“If your verdict is in favor of the plaintiff and you find him entitled to recover under the first count the form of your verdict will be: 'We, the jury, find for plaintiff under his first count, and assess his damages •at $........ (stating the amount)/
“II Vour verdict is in favor of plaintiff, and you do not find him entitled to recover under the first count, and do find him entitled to recover under his third count, the form of your verdict will be: ‘We, the jury, find for plaintiff under his third count, and assess his damages at $........ (stating the amount) .’
“If you find plaintiff entitled to recover, and some of you find him entitled to recover under his first count, and some of you find him entitled to recover under "his third count, the form of your verdict will be: ‘We, the jury, find plaintiff entitled to recover under his first and third counts, and assess his damages at $........ (stating the amount) .’
“If your verdict is in favor of the defendant, its form will be: ‘We, the jury, find for the defendant.’ ”
Section 13 of Article 5 of our Constitution, adopted in 1876, contains this provision:
“In trials of civil cases, and in trials of criminal cases below the grade of felony in the District Courts, nine members of the jury concurring may render a verdict, but when the verdict shall be rendered by less than the whole number, it shall be signed by every .member of the jury concurring in it; -. . . provided, that the Legislature-may change or modify the rule authorizing less than the whole number of the jury to render a verdict.”
The Constitution became effective on the 15th day of February, 1876, and the Legislature assembled on the 18th day of April, 1876, when a law was enacted, now Article 5317 of the Revised Statutes, which we copy:
“Art. 5317. Entire jury must concur in verdict.—Eo verdict shall be rendered in any cause except upon the concurrence of all the members of the jury trying the same.”
The action of the Legislature reflected public sentiment, and that law remains in force. It would be a waste of time to cite cases to support a statute so plain. We note, however, the emphatic terms in which the law is expressed, “ZVb
verdict shall he rendered”
There remains for our consideration the question, does it appear from the verdict rendered, that all of the jury impanelled in this concurred in tire finding as presented to the court?
The court submitted to the jury two grounds of negligence as charged in plaintiff’s petition, sot out in the first paragraph of the charge copied above, in substance, that an employee of the defendant in discharge of his duty, uncoupled cars of the train without turning the angle cocks and confining the air, which caused plaintiff’s injury.
The third ground of liability can not be condensed and preserve its character. We therefore copy it:
“If you do not find that an operative of the train uncoupled the cars without turning the angle cocks and confining the air, but .do believe, from the evidence, that the cars separated and broke or parted-the air-hose and that thereby the brakes were applied and the car on which plaintiff was riding suddenly and abruptly stopped and that by reason
thereof plaintiff was thrown and caused to fall and to suffer injuries substantially in the manner alleged, and if 3rou further believe that such an accident does not in the ordinary course of things happen if those who have the management of the train, including its operation and equipment, use reasonable care and if 3rou further believe that such operation of the cars and application of the brakes and abrupt and sudden stopping of the car on which plaintiff was riding, if such happened, resulted in some manner either from improper operation or defective equipment of the train, and that such was due to a want of ordinary care on the part of the defendant or of any of its agents or employees acting for it within the scope of their employment, and that such want of ordinary care, if any, was a proximate cause, as before defined, of alleged injuries to plaintiff, if sustained, then find for plaintiff under the third count of his petition, and so say by your verdict."
The grounds of recovery were submitted in the alternative in this language:
“If your verdict is in favor of the plaintiff and you find him entitled to recover under the first count the form of 3'our verdict will be: ‘We, the jury, find for plaintiff under his first count, and assess his damages at $...... (stating the amount) /
“If your verdict is in favor of plaintiff, and you do not find him entitled to recover under the first count, and do find him entitled to recover under his third count, the form of your verdict will be: ‘We, the jury, find for plaintiff under his third count, and assess his damages at $...... (stating the amount).’
“If you find plaintiff entitled to recover, and some of you find him entitled to recover under his first count, and some of you find him entitled to recover under Iris third count, the form of your verdict will be: “We, the jury, find plaintiff entitled to recover under his first and third counts, and assess his damages at $...... (stating the amount) / "
The jury returned this verdict:
“We, the jury, find plaintiff, Morris Gear3q entitled to recover under his first and third counts, and assess his damages at $20,000.00 (Twenty Thousand Dollars)."
Interpreted by the charge, the verdict clearly expresses that a part of the jury found for plaintiff under the first ground, and part under the third ground. It is manifest that some of the jury based their finding on the first, and some on the third ground, but all did not agree upon either. There being no “concurrence”- of all of the members of the jury on either ground of negligence, the action of the District Court in receiving the verdict was in direct disregard of the statute.
Counsel for defendant in error assert that this court has no jurisdiction of the application, because it does not present error in ruling upon the substantive law of the case. This court has defined the term' “substantive law” as applied to applications for writs of error, thus:
“(5) If the case be one in which the Court of Civil Appeals has erroneously declared the substantive law of the case, that the ruling
complained -of was upon a question or questions of law that substantially affected the right of the plaintiff to recover or the right of the defendant to maintain his defense.”
The denial of a statutory and constitutional right, to have the concurrence of all of the jurors “substantially affects the right of the defendant to maintain its defense.” This court has jurisdiction. Because of the error of the trial court in receiving the verdict contrary to the plain language of the statute, the judgments of the Court of Civil Appeals and of the District Court are reversed and this cause is remanded.