This constituted material misconduct. See Parris v. Jackson, 338 S.W.2d 280 (Tex.Civ.App. — Houston 1960, no writ); Texas P. Ry. Co. v. Gillette, 125 Tex. 563, 83 S.W.2d 307 (1935); Yellow Cab Baggage Co. v. Donnell, 159 S.W.2d 946 (Tex.Civ.App. — San Antonio 1942, no writ); St. Louis Southwestern Ry. Co. v. Smithhart, 9 S.W.2d 146 (Tex.Civ.App. — Beaumont 1928, no writ). However, we do not believe appellant discharged its burden of showing probable harm. Juror Dans was the only juror questioned by appellant on this matter.

" That this was misconduct calculated to prejudice the rights of the railway company is not an open question. Texas P. Ry. Co. v. Van Zandt, 44 S.W.2d 950; St. Louis S.W. Ry. Co. v. Smithhart, 9 S.W.2d 146; Rhoades v. El Paso S.W. Ry. Co., 248 S.W. 1064, 27 A. L. R., 1048; Estep v. Bratton, 24 S.W.2d 465. The rule is definitely established by this court that, where misconduct by the jury in reaching a verdict is shown, a reversal will follow, unless the record negatives, beyond a reasonable doubt, that such misconduct influenced any juror in giving assent to the verdict. Casstevens v. Texas P. Ry. Co., 119 Tex. 456, 32 S.W.2d 637, 73 A. L. R., 89; Texas P. Ry. Co. v. Van Zandt, 44 S.W.2d 950. Considering the amount of damages awarded and the record as a whole, it cannot be held that the misconduct did not influence the jury, or at least, some of the jurors, in giving assent to the verdict returned in this case.

Moore v. Ivey, Tex.Com.App., 277 S.W. 106, 107; Estep v. Bratton, Tex. Civ. App. 24 S.W.2d 465, 469; International-G. N. R. R. Co. v. Cooper, Tex.Com.App., 1 S.W.2d 578, 579; St. Louis S.W. Ry. Co. v. Smithhart, Tex. Civ. App. 9 S.W.2d 146, 151; Kennard v. Kennard, Tex. Civ. App. 26 S.W.2d 336, 337; Simmonds v. St. Louis, B. M. Ry. Co., Tex.Com.App., 29 S.W.2d 989. Two of the five jurors who testified stated on direct examination that they were influenced by the misconduct.

Under the authorities, we think, this must be regarded as material misconduct. Texas N. O. Ry. Co. v. Parry, Tex.Com.App., 12 S.W.2d 997; Texas P. Ry. Co. v. Van Zandt, Tex.Com.App., 44 S.W.2d 950; St. Louis Southwestern Ry. Co. v. Lewis, Tex.Com.App., 5 S.W.2d 765; Moore v. Ivey, Tex.Com.App., 277 S.W. 106; City of Waco v. Darnell, Tex.Com.App., 35 S.W.2d 134; Southern Traction Co. v. Wilson, Tex.Com.App., 254 S.W. 1104; Williams v. Rodocker, Tex. Civ. App. 84 S.W.2d 556; Estep v. Bratton, Tex. Civ. App. 24 S.W.2d 465; Gulf, C. S. F. Ry. Co. v. McKinnell, Tex. Civ. App. 171 S.W. 1091; Gulf, C. S. F. Ry. Co. v. McKinnell, Tex. Civ. App. 173 S.W. 937; St. Louis Southwestern Ry. Co. v. Roberts, Tex. Civ. App. 196 S.W. 1004; St. Louis Southwestern Ry. Co. v. Smithhart, Tex. Civ. App. 9 S.W.2d 146; Lackey v. Southland Greyhound Lines, Tex. Civ. App. 35 S.W.2d 739; San Antonio, U. G. Ry. Co. v. Vivian, Tex. Civ. App. 180 S.W. 952; St. Louis Southwestern Ry. Co. v. Dodson, Tex. Civ. App. 285 S.W. 330; Red Star Coaches v. Lamb, Tex. Civ. App. 41 S.W.2d 523; American Ry. Express Co. v. Sawyer, Tex. Civ. App. 297 S.W. 873; Weidmer v. Stott, Tex. Civ. App. 48 S.W.2d 389; Morgan v. Maunders, Tex. Civ. App. 37 S.W.2d 791; Dallas Ry. Co. v. Skorodynski, Tex. Civ. App. 292 S.W. 638; Great West Mill Elevator Co. v. Hess, Tex. Civ. App. 281 S.W. 234; St. Louis, B. M. Ry. Co. v. Vick, Tex. Civ. App. 210 S.W. 247; Louisiana W. Ry. Co. v. White, Tex. Civ. App. 202 S.W. 794; San Antonio Traction Co. v. Mendez, Tex. Civ. App. 199 S.W. 691; San Antonio Traction Co. v. Cassanova, Tex. Civ. App. 154 S.W. 1190; City of Amarillo v. Rust, Tex. Civ. App. 64 S.W.2d 821. It seems to be a settled proposition that no effect, or at least no conclusive effect, can be given to the testimony of jurors desig

We think it is clear that the misconduct is sufficient ground for a reversal. Texas P. R. Co. v. Van Zandt (Tex.Com.App.) 44 S.W.2d 950; St. Louis S.W. R. Co. v. Lewis (Tex.Com.App.) 5 S.W.2d 765; Houston T. C. R. Co. v. Gray, 105 Tex. 42, 143 S.W. 606; Moore v. Ivey (Tex.Com.App.) 277 S.W. 106, 277; Texas N. O. R. Co. v. Parry (Tex.Com.App.) 12 S.W.2d 997; St. Louis S.W. R. Co. v. Smithhart (Tex.Civ.App.) 9 S.W.2d 146. In Sims v. Sims (Tex.Civ.App.) 296 S.W. 612, the court holds that it is not incumbent upon a party complaining of misconduct of the jury to show beyond question that such conduct affected the judgment if upon the entire record it is reasonably doubtful whether improper conduct affected the verdict the same should be set aside and a new trial granted.

This court finds no fault with the holding below, being of opinion that the evidence so presented fails to point out any negligence of the appellee in the respect alleged that reasonably, in the circumstances otherwise exhibited, could have constituted a proximate cause of the unfortunate injury suffered. Even if it was a dereliction toward appellant not to keep the rails and intervening space of the track the welding device had to cross flush with the floor over which it was laid, that became at most a mere damnum absque injuria and gave him no right of action, in the absence of the further indispensable showing that it at least had some causative effect toward bringing about the complained-of mishap, Taber v. Smith (Tex.Civ.App.) 26 S.W.2d 722; Harris v. T. P. Ry. Co. (Tex.Civ.App.) 28 S.W.2d 1093; Missouri Pacific v. Horner, 179 Ark. 321, 15 S.W.2d 994; St. Louis Southwestern R. Co. v. Smithhart (Tex.Civ.App.) 9 S.W.2d 146; and this latter sine qua non he himself conclusively negatives the existence of. The sole act of omission toward him he testified to was that this track "wasn't filled in" — that is, "it was not level with the rails."

But for the decision of our courts on similar questions we would feel inclined to affirm the judgment, but the ruling of the courts on similar questions supports the contrary. Mann v. Cook (Tex.Civ.App.) 11 S.W.2d 572; Abrams v. Bradshaw (Tex.Civ.App.) 2 S.W.2d 917; Bradshaw v. Abrams (Tex.Com.App.) 24 S.W.2d 372; Harvey v. Gulf, C. S. F. Ry. Co. (Tex.Civ.App.) 261 S.W. 197; Id. (Tex.Com.App.) 276 S.W. 895; Coons v. Culp (Tex.Civ.App.) 278 S.W. 914; City of Waco v. Rast (Tex.Civ.App.) 2 S.W.2d 565; Southern Traction Co. v. Wilson (Tex.Com.App.) 254 S.W. 1104, 1106; Moore v. Ivey (Tex.Com.App.) 277 S.W. 106, 107; Estep v. Bratton (Tex.Civ.App.) 24 S.W.2d 465, 469; International-Great Northern Co. v. Cooper (Tex.Com.App.) 1 S.W.2d 578, 579: St. Louis S.W. Ry. Co. v. Smithhart (Tex.Civ.App.) 9 S.W.2d 146, 151; Kennard v. Kennard (Tex.Civ.App.) 26 S.W.2d 336, 337; Simmonds v. St. L. B. M. Ry. Co. (Tex.Com.App.) 29 S.W.2d 989. To require the reversal of a case fairly tried, the error must be very strong and pertinent, but here we do not think it has been fairly tried.

" See, also, Great West Mill Elevator Co. v. Hess (Tex.Civ.App.) 281 S.W. 234; St. L. S.W. Ry. Co. of Texas v. Smithhart (Tex.Civ.App.) 9 S.W.2d 146. The holdings announced in the foregoing cases have been followed by a long and unbroken line of decisions, and in our opinion the record in this case, to say the least, makes it appear affirmatively doubtful as to whether or not the verdict was influenced by the discussion of the questions of insurance and attorney fees while the jury was deliberating on their verdict, none of which was in evidence, and this assignment must be sustained.

The burden was upon appellees to exclude by evidence every reasonable doubt as to the harmful effect of the misconduct. The case of St. Louis S.W. Ry. Co. v. Smithhart, 9 S.W.2d 146, by the Beaumont Court of Civil Appeals, is regarded as directly in point. That decision, we think, correctly interpreted and followed the decisions hereinabove discussed.

The following recent authorities, not cited in the original opinion, will disclose the strictness with which the appellate courts apply and enforce the rule against misconduct in the jury room. Scale v. Schultz (Tex.Civ.App.) 3 S.W.2d 563; St. L. S.W. Ry. Co. v. Lewis (Tex.Com.App.) 5 S.W.2d 765; St. L. S.W. Ry. Co. v. Smithhart (Tex.Civ.App.) 9 S.W.2d 146; T. N. O. Ry. Co. v. Parry (Tex.Com.App.) 12 S.W.2d 997; Giles v. Tyson (Tex.Civ.App.) 13 S.W.2d 452. In the very recent case of McFaddin v. Hebert, 15 S.W.2d 213, in an opinion answering certified questions, which was adopted by the Supreme Court, this language is used: "The courts of this state have repeatedly held that it is error for the jury to first determine who they want to prevail in the suit and then designedly form their answers to special issues to accomplish that desire."