Mr. Justice Culver
delivered the opinion of the Court.
Petitioner’s suit is one for personal injury. Issues of negligence and unavoidable accident wTere resolved against him by the jury. Judgment having been entered for respondent, petitioner filed motion for new trial based only on jury misconduct, which was overruled. On appeal, affirmance was ordered by the Court of Civil Appeals. 264 S.W. 2d 489.
The trial court on request, filed comprehensive and complete “findings of fact and conclusions of law.” He found, inter alia, that the answers to the negligence and unavoidable accident issues were all agreed to on one day and that the discussion on the amount of damages took place on the following morning, before returning the verdict at 10:30 A.M.; that only two ballots were taken on the negligence issues, the first ballot resulting in a vote of ten negative and two affirmative votes; “that the juror, Gring, expressed the opinion in accordance with his honest belief that he did not think it would make any difference, that he did not think that the railroad would have to be found negligent for the plaintiff to be awarded the money”; that thereafter two jurors voted “no” to the negligence issues; that no improper statements were made in connection with the jury’s consideration and vote on the unavoidable accident issues.
All twelve jurors were summoned and testified. The statement of facts on this hearing consists of 250 pages. Much of this delves into the mental processes of the jurors, what the individual members of the jury thought, believed and understood and not surprisingly so because of the ofttimes difficulty in distinguishing between an overt act and a mental process and the natural tendency on the part of counsel to bring out everything which he thinks will help his case. A somewhat more careful application of the rule, however, would avoid inquiry into the mental processes of the jurors and confine the testimony to overt acts. Traders & General Insurance Co. v. Lincecum, 130 Texas 220, 107 S.W. 2d 585.
[234]*234In this connection it may be shown that in the two affidavits attached to the motion for new trial made by two of the jurors, this identical language in each appears:
“I and the rest of the jurors thought that when we answered the issues ‘No’ that we were still showing negligence on the part of the railroad and also the engineer and I thought that Trousdale would surely collect around $24,000.00. * *
Of course that statement involves clearly a mental process and such testimony is not admissible. But such a statement in the affidavit could properly, we think, be used as an aid in evaluating the testimony given by these jurors and testing the credibility of the witnesses, on the motion for a new trial.
In a full discussion of the facts and an able review of the authorities on misconduct the Court of Civil Appeals reached the conclusion that the complaining party did not discharge the burden of showing probability of injury. We are of the opinion that this appraisal is correct and that the judgments of the court below should not be disturbed.
Petitioner’s contention is that probable injury resulted to petitioner where, after the damage issue was answered and during the discussion of the “negligence issues” the jury being divided on the answers thereto, one or more jurors informed the others that it would not be necessary to find that respondent was negligent, for petitioner to be awarded the amount of money already agreed upon by the jury and that the Court of Civil Appeals erred in holding that the established misconduct of at least one juror in stating that the answers were immaterial after the damage issue was answered, did not cause petitioner to suffer probable injury. Whether of particular importance or not, it is to be noted that the trial court found that all discussion pertaining to negligence issues was completed before the amount of damages was determined.
The adoption of Rule 327, T.R.C.P., in 1939 effected a considerable change in what had theretofore been the law. Formerly under Art. 2234, Rev. St. of Texas 1925, the rule was that once misconduct is shown, if there was a reasonable doubt as to the effect, the doubt must be resolved against the verdict and a new trial granted. Moore v. Ivey, Texas Com. App., 277 S.W. 106. Bradshaw v. Abrams, Texas Com. App., 24 S.W. 2d 372.
The rule now provides:
[235]*235“* * * may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.”
A number of the cases cited by petitioner were tried before the effective date of Rule 327, and thus applied the test of “reasonable doubt” which no longer prevails, such as Traders & General Insurance Co. v. Lincecum, 130 Texas 220, 107 S.W. 2d 585, 588; Southern Traction Co. v. Wilson, Texas Com. App., 254 S.W. 1104; Walker v. Quanah, A. & P. Ry. Co., Texas Com. App., 58 S.W. 2d 4.
In Pryor v. New St. Anthony Hotel, (Texas Civ. App.) 146 S.W. 2d 428, 431, reversal was had because it could not be said that no injury resulted “beyond a reasonable doubt.” Petitioner relies on the rule stated therein as follows:
“It is a settled rule of law in this state that to induce a juror to change his answer to a material issue, by representation on the part of other jurors that it is immaterial how such issue is answered, insofar as plaintiff’s recovery is concerned, constitutes misconduct on the part of the jury.”
We do not understand that the decision of the Court of Civil Appeals in our case holds to the contrary of that rule, but rather decides in effect that petitioner has not shown that the representation or statement made by the juror in this case induced any other juror to change his answer and thereby fails to disclose that injury probably resulted to the petitioner.
In Maryland Casualty Co. v. Hearks, 144 Texas 317, 190 S.W. 2d 62, 64, the rule is given:
“The mere fact that the jurors discussed the fact that the issues would have to be answered in a given way if the employee was to recover is not alone sufficient to constitute misconduct of the jury. It must also appear that the jury designedly attempted to frame the answers to the issues so as to accomplish such a result.”
This suit is based upon two separate accidents. It was alleged that the first resulted from plaintiff stepping upon a decayed rotten board which gave way causing him to fall. The first ten issues concerned this accident. The jury having found that the [236]*236board was not decayed, in accordance with the court’s instruction, did not answer any of the corollary issues.
On the second accident the first issue (No. 10a) inquired as to whether or not the engineer applied braking power to the engine alone. This is the issue which the court refers to in speaking of the jury being divided 10 to 2. It is the issue the jurors were considering when the statement was made by the juror, Gring. Strictly speaking the jury was at the time not considering the question of negligence. That question was not reched.
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Mr. Justice Culver
delivered the opinion of the Court.
Petitioner’s suit is one for personal injury. Issues of negligence and unavoidable accident wTere resolved against him by the jury. Judgment having been entered for respondent, petitioner filed motion for new trial based only on jury misconduct, which was overruled. On appeal, affirmance was ordered by the Court of Civil Appeals. 264 S.W. 2d 489.
The trial court on request, filed comprehensive and complete “findings of fact and conclusions of law.” He found, inter alia, that the answers to the negligence and unavoidable accident issues were all agreed to on one day and that the discussion on the amount of damages took place on the following morning, before returning the verdict at 10:30 A.M.; that only two ballots were taken on the negligence issues, the first ballot resulting in a vote of ten negative and two affirmative votes; “that the juror, Gring, expressed the opinion in accordance with his honest belief that he did not think it would make any difference, that he did not think that the railroad would have to be found negligent for the plaintiff to be awarded the money”; that thereafter two jurors voted “no” to the negligence issues; that no improper statements were made in connection with the jury’s consideration and vote on the unavoidable accident issues.
All twelve jurors were summoned and testified. The statement of facts on this hearing consists of 250 pages. Much of this delves into the mental processes of the jurors, what the individual members of the jury thought, believed and understood and not surprisingly so because of the ofttimes difficulty in distinguishing between an overt act and a mental process and the natural tendency on the part of counsel to bring out everything which he thinks will help his case. A somewhat more careful application of the rule, however, would avoid inquiry into the mental processes of the jurors and confine the testimony to overt acts. Traders & General Insurance Co. v. Lincecum, 130 Texas 220, 107 S.W. 2d 585.
[234]*234In this connection it may be shown that in the two affidavits attached to the motion for new trial made by two of the jurors, this identical language in each appears:
“I and the rest of the jurors thought that when we answered the issues ‘No’ that we were still showing negligence on the part of the railroad and also the engineer and I thought that Trousdale would surely collect around $24,000.00. * *
Of course that statement involves clearly a mental process and such testimony is not admissible. But such a statement in the affidavit could properly, we think, be used as an aid in evaluating the testimony given by these jurors and testing the credibility of the witnesses, on the motion for a new trial.
In a full discussion of the facts and an able review of the authorities on misconduct the Court of Civil Appeals reached the conclusion that the complaining party did not discharge the burden of showing probability of injury. We are of the opinion that this appraisal is correct and that the judgments of the court below should not be disturbed.
Petitioner’s contention is that probable injury resulted to petitioner where, after the damage issue was answered and during the discussion of the “negligence issues” the jury being divided on the answers thereto, one or more jurors informed the others that it would not be necessary to find that respondent was negligent, for petitioner to be awarded the amount of money already agreed upon by the jury and that the Court of Civil Appeals erred in holding that the established misconduct of at least one juror in stating that the answers were immaterial after the damage issue was answered, did not cause petitioner to suffer probable injury. Whether of particular importance or not, it is to be noted that the trial court found that all discussion pertaining to negligence issues was completed before the amount of damages was determined.
The adoption of Rule 327, T.R.C.P., in 1939 effected a considerable change in what had theretofore been the law. Formerly under Art. 2234, Rev. St. of Texas 1925, the rule was that once misconduct is shown, if there was a reasonable doubt as to the effect, the doubt must be resolved against the verdict and a new trial granted. Moore v. Ivey, Texas Com. App., 277 S.W. 106. Bradshaw v. Abrams, Texas Com. App., 24 S.W. 2d 372.
The rule now provides:
[235]*235“* * * may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.”
A number of the cases cited by petitioner were tried before the effective date of Rule 327, and thus applied the test of “reasonable doubt” which no longer prevails, such as Traders & General Insurance Co. v. Lincecum, 130 Texas 220, 107 S.W. 2d 585, 588; Southern Traction Co. v. Wilson, Texas Com. App., 254 S.W. 1104; Walker v. Quanah, A. & P. Ry. Co., Texas Com. App., 58 S.W. 2d 4.
In Pryor v. New St. Anthony Hotel, (Texas Civ. App.) 146 S.W. 2d 428, 431, reversal was had because it could not be said that no injury resulted “beyond a reasonable doubt.” Petitioner relies on the rule stated therein as follows:
“It is a settled rule of law in this state that to induce a juror to change his answer to a material issue, by representation on the part of other jurors that it is immaterial how such issue is answered, insofar as plaintiff’s recovery is concerned, constitutes misconduct on the part of the jury.”
We do not understand that the decision of the Court of Civil Appeals in our case holds to the contrary of that rule, but rather decides in effect that petitioner has not shown that the representation or statement made by the juror in this case induced any other juror to change his answer and thereby fails to disclose that injury probably resulted to the petitioner.
In Maryland Casualty Co. v. Hearks, 144 Texas 317, 190 S.W. 2d 62, 64, the rule is given:
“The mere fact that the jurors discussed the fact that the issues would have to be answered in a given way if the employee was to recover is not alone sufficient to constitute misconduct of the jury. It must also appear that the jury designedly attempted to frame the answers to the issues so as to accomplish such a result.”
This suit is based upon two separate accidents. It was alleged that the first resulted from plaintiff stepping upon a decayed rotten board which gave way causing him to fall. The first ten issues concerned this accident. The jury having found that the [236]*236board was not decayed, in accordance with the court’s instruction, did not answer any of the corollary issues.
On the second accident the first issue (No. 10a) inquired as to whether or not the engineer applied braking power to the engine alone. This is the issue which the court refers to in speaking of the jury being divided 10 to 2. It is the issue the jurors were considering when the statement was made by the juror, Gring. Strictly speaking the jury was at the time not considering the question of negligence. That question was not reched. Dependent upon answering the issue in the affirmative, it was inquired (a) if application, caused a sudden and unusual jerk, (b) if such application of braking power was negligence, (c) if it was the proximate cause. The jury having answered the first question in the negative the remainder were not answered.
Three following issues were answered (1) that the engineer did not operate the engine at a greater rate of speed than ordinary care; (2) that the train was not being operated at a speed in excess of 15 miles per hour, and (3) that the engineer did not fail to have the engine under proper control.
In answer to separate issues worded identically both accidents were found to be “unavoidable.” In each, the usual instruction was given that an “unavoidable accident” is one not proximately caused by the negligence of either the plaintiff or the defendant’s agent, servants or employees. The trial court found that there were no improper statements made in connection with the juror’s consideration and vote thereon.
The question decided by the Court of Civil Appeals is this: Does it “reasonably appear” that the statement made by Gring, and such discussion as was had thereon, “probably resulted” in injury to the complainant in inducing the two jurors to change their vote. A determination of this question is to be made in the light of the entire record. Barrington v. Duncan, 140 Texas 510, 169 S.W. 2d 462.
The trial court found that only two ballots were taken on the issue 10a. On the first ballot the vote was 10 to 2 for answering the issue in the negative. The jurors, Page and Zamorra, were the two voting in the affirmative. After the statement was made by the juror, Gring, these two jurors, Page and Zamorra, voted with the other ten on the second ballot to answer the issue in the negative.
[237]*237Even though it may appear from the record that the statement of Gring was followed by some discussion of the matters pro and con we do not believe that petitioner has discharged the burden of showing that probable injury resulted or, more specifically, that the change in the vote of the jurors, Page and Zamorra, was induced by the statement and resulting discussion.
In the first place the statement by Gring was an expression of an opinion and so stated to be by him. On the other hand both Page and Zamorra expressed contemporaneously an opinion to the contrary. No reasons were advanced or given by Gring to convince Page and Zamorra of the correctness of his contention.
Page attributes to juror, Crawford, a statement similar to that made by Gring. This was denied by Crawford although he admitted saying that the accident was an occupational hazard. The trial court agreed with Crawford’s version.
There is also the natural inclination on the part of small minority to go along ultimately with the majority. Again, there is a fact that the jury found both accidents to be “unavoidable” and the trial court found that no improper statement was made by any juror in connection with the issue “unavoidable accident.”
We think also in arriving at the probability of injury to the petitioner there may be taken into consideration the pleadings, the three weeks spent in the introduction of testimony pro and con on the issues of negligence, the 27-issue charge, and the instructions of the court, all issues except one or two relating to the question of negligence and the eight hours of argument during the course of which the attorneys on each side stressed vigorously the testimony as bearing on the issue of negligence. Weighing all these factors it does not seem probable that the two jurors were convinced that all the issues were immaterial except the one on the amount of damages. In holding that the petitioner does not show that injury probably resulted to him, we think the Court of Civil Appeals did not err.
The judgment of the Court of Civil Appeals is affirmed.
Opinion delivered February 16, 1955.