The constitution of this state directs that “petit jurors in the district courts shall be composed of twelve men.” In the latter clause of the same section it reads thus: “When pending the trial of any case, one or more jurors, not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict.” Art. V, sec. 13. The statute repeats these provisions and adds, that “the parties may by consent agree, in a particular case, to try with a less number,”—but that “no verdict shall be rendered in any cause, except upon the concurrence of all the members of the jury trying the same.” R. S., arts. 3100-3.

It appears by bill of exceptions in this case, that pending the trial, and “ after the depositions of several wit*337nesses had been read, a communication in writing was handed to the judge presiding which purported to be from the wife of the juror Thomas H. Bradbury to the said Bradbury, informing him that one of their children was sick, and requesting him to come home if he could. The judge presiding being of the opinion that this information disabled the said juror from sitting, and thereupon peremptorily discharged him, said Bradbury, from the jury, and ordered the trial to proceed with the remaining eleven, over the objection of the defendant’s attorneys.” This bill of exceptions is approved with the following explanation: “ The court asked the juror if the intelligence in the written communication of his wife satisfied him that it was necessary for him to be at home to attend his sick child. The juror answered it did, and manifested in his answer such distress as such intelligence would naturally create in a parent. And the court was satisfied, in his present state of mind, that said juror was disabled thereby from further acting as a juror.”

Our opinion is that a juror is not “ disabled from sitting ” within the meaning of the constitution by mere distress of mind. Such distress, caused by information of sickness in his family, calling for his presence at home, might be a sufficient cause for suspending the progress of the trial, if in the judgment of the court the emergency required such a course. But this is not the character of disability which the constitution classes side by side with death. If a juror becomes so sick as to be unable to sit longer, he is plainly disabled from sitting. Ray v. State, 4 Tex. Ct. App., 454. If by reason of some casualty or otherwise he is physically prostrated, so as to be wholly incapable of sitting as a juror, or'loses his mental powers, so as to become insane or idiotic, then too he would be disabled from acting as a juror. But, without deeming it proper to attempt to define fully the meaning of the expression used in the constitution, we are satisfied that the *338causes which disable the juror from sitting, and justify the extreme course of allowing, over a party’s objection, a verdict to be rendered by the remainder of the jury, must be of a nature more directly showing, his physical or mental incapacity than mere mental distress occasioned by the sickness of others, and the feeling that duty to the sick demanded his presence elsewhere. Extreme cases of the kind, however strongly they may appear to the court to release the juror, do not belong to the class provided for by the constitution or statute.

We think that it appears from the bill of exceptions that the court, over the objections of the defendant, ordered the trial to proceed with eleven jurors, and that this error of the court is fatal to the judgment.

Another question is made over the admission of certain depositions.

Hiram B. Waller, on the night of November 30, 1877, at the junction in the town of Hempstead of the H. & T. Central with its Austin branch, whilst passing from a hotel to meet the approaching passenger train, bound north on the main track, and whilst crossing for this purpose the track of the branch road at a public crossing, was struck by a tender propelled by a switch engine moving backwards and northward on the branch track, and injured so that he died. His widow and children brought this suit, alleging that the injury was caused by the negligence of the company and its servants, specifying various matters in which it was claimed the company was negligent, and complaining amongst other things of the absence of sufficient lights. The only special answer alleged that Waller was at the time so under the influence of intoxicating liquors, imbibed to excess, as to make him unconscious and regardless of impending danger, and that he was injured whilst recklessly attempting to cross the railway track in front of the approaching engine. The sufficiency of the lights provided about the *339railroad platform where the casualty happened became material as bearing on the question of negligence in the company in that regard, and also as bearing on the question whether Waller saw, or could have seen, the approaching tender and engine in time to have avoided the accident. The depositions objected to as irrelevant were those of two persons who over two years after the accident, but near the same hour of a not dissimilar night, and whilst an engine and tender were standing on the branch road at a point some few yards south of where Waller was when injured, as to the possibility of distinguishing the tender with the lights as then arranged. If the arrangement of the lights, and other surroundings were substantially the same as on the night of November 30th, we see no reason why this evidence should have been excluded. If, however, by a change in the location of the lights, especially of what seems to have been the main one, a stationary headlight, the circumstances were materially altered, we do not see that the testimony of these witnesses as to what they saw or could not see was relevant or admissible. There is the evidence of one witness that the location of the headlight had been changed materially. Quite a number of other witnesses, however, speak of the location of this light as being the same all the time. In this conflict of the evidence we are not of the opinion that the court should have excluded the depositions, but think that the jury should have been instructed to disregard them, if they found that in fact the surroundings were materially changed from what they were when Waller was injured.

Several charges were asked by defendant, and their refusal is assigned as error; but as the judgment is to be reversed for other reasons, it is only necessary to say of the first and second, that for the court to have given them would have been to have taken the question of con-*340tributary negligence from the jury, and that under the facts in evidence that question was clearly one of fact to be submitted to the jury.

Whilst we think that the third charge as asked was objectionable in its statement of the material question for the consideration of the jury, we are of opinion that the court might with propriety have told the jury that the sobriety or intoxication of Waller at the time of his crossing the track was a proper subject for their consideration in determining whether he was at the time in the exercise of due care or not. The pleadings of defendant had charged that the injury was the result of Waller’s recklessness, induced by excessive drinking. There was much evidence pro and con on that point. It seems to us a question requiring to be more distinctly called to the attention of the jury than it was in the charge given.

The judgment is reversed and the cause remanded.

Reversed and remanded.