Texas & Pacific Railway Co. v. Jones , 63 Tex. Civ. App. 492 ( 1911 )

Appellee was a car repairer in the service of the appellant company. He was ordered to report to Sam Burnett, the foreman, and work in a squad of men under him composed of Woolery and two others, who were rearranging and installing machinery in the new shops of the appellant. He worked several weeks at this work and in this squad. About the 18th of February, 1907, in the course of their work appellee and Woolery were directed by the foreman, Burnett, to remove a piece of iron shafting which was about six or eight feet long and two inches in diameter from an iron pulley, which was about twenty inches in diameter. The pulley and shafting were lying on the floor of the shop. Woolery started to drive the shafting with an iron maul to force it from the pulley, and the foreman told him not to drive it with the iron maul as that would flatten the end of the shafting so that it would not come from the pulley. The foreman then ordered him to butt it out with a piece of timber. There is a conflict in the evidence as to whether the foreman pointed out the particular piece of timber or told Woolery to get some piece of timber. Some of the witnesses say that the foreman pointed out and directed Woolery to get and use the particular piece of timber that was used and that was lying near; others say that he told Woolery to get a piece of timber among the several pieces near by. We assume the truth of the finding of the jury in favor of appellee's contention, that the foreman pointed out and commanded the use of the particular piece of timber that was used. The timber used was a piece of scantling four or five inches square and some six feet long. Woolery picked up the piece of timber as directed by the foreman and began to butt the shafting, and the lick caused it to bound from the floor. The foreman then directed appellee to hold the pulley with his hands, and for Woolery to drive the shafting with a piece of timber by butting it with the scantling endwise. Appellee, as directed, held the pulley, and with his hands on the side of the pulley. Woolery was attempting to drive the shafting from the pulley as directed, and the timber used either missed the end of the shafting, or a piece slivered off of the end from the lick and passed the shafting and struck appellee's hand, severely injuring it. There is some controversy in the evidence as to whether the timber missed the shafting or whether it slivered and passed to appellee's hand. The witnesses who testified that it slivered and passed the shafting stated that the timber was defective; that it was cross-grained and doty heart. It was a wedge-shaped piece that slivered off. We assume the truth of appellee's contention that it struck the shafting and slivered off because defective. The foreman testified that the appellee and the other men in the squad had no discretion, but were absolutely bound to obey his orders or could not work longer.

The negligence is alleged to have consisted of the manner of removing the pulley, that is, by ordering it to be struck or butted with the timber endwise while the appellee was required to hold it with his hands, and in the fact that the particular piece of timber directed to be used was defective and unsafe for the purpose for which it was ordered to be used. The appellant answered by denial, assumed risk, negligence of a fellow servant, and appellee's negligence. The trial was to a jury, and the verdict in favor of appellee.

We conclude that the appellant is guilty of negligence as alleged in the petition, proximately causing the injury, and that appellee is not guilty of contributory negligence and is not precluded by assumed risk, and the evidence warrants the amount of the recovery.

After Stating the Case. — Appellant plead in bar of the suit that appellee had executed a valid release against all damages, and claims by proper assignments that under the evidence the release is binding and precludes any recovery. The court ruled that the release was without consideration and invalid. There appear in the evidence two releases; one is dated in February and the other in April, 1907. It is admitted, though, that the second one is in the place of the first one, and the two are identically the same and are regarded as being one and the same release relied on. The release purports to settle the claim of appellee for the injuries in suit, and in consideration of $1 paid for the settlement. It goes further and stipulates, "Said sum of one dollar being in full satisfaction of any and all claims and demands that I may have against the said Texas Pacific Railway Company for the injuries received, as aforesaid, or for any other injuries that might arise, accrue, or result from injuries received in said accident, whether known at this time or that might hereafter develop, this settlement to have the same force and effect as if I had sued the Texas Pacific Railway Company and obtained a judgment against it for the amount of this compromise. It is further expressly agreed and understood that the Texas Pacific Railway Company is not and does not agree to bind itself to employ me, or for any time or in any capacity whatever, as a part of this settlement, but that we each remain free to contract with each other just as if this transaction had not occurred. It is further understood and agreed that all promises and agreements respecting or in anywise relating to the subject hereof are fully expressed herein and no others are made to exist. This instrument is executed in duplicate." Referring to the evidence, it is conclusively shown, we think, that the sole consideration for the settlement and release was the sum of $1, and that such sum has never been paid. Appellant admits that it was not paid or that it was even contemplated that it was to be paid. The instrument, as the evidence, declares that there was no other consideration or agreement between the parties than those expressed in the written agreement, which was one dollar. A release without consideration does not defeat a recovery, and the court did not err. See Missouri, K. T. Ry. Co. v. Smith,98 Tex. 47, 66 L. R. A., 741, 107 Am. St., 607, 81 S.W. 22. The first, second and third assignments are overruled.

The court in the main charge instructed the jury that appellee could only recover in case the foreman directed Woolery to butt the shafting out of the pulley with the particular piece of timber that was used and pointed out by the foreman to be used, and that the foreman directed appellee to remove the shafting in the precise way it was done; and authorized a finding for appellant if the foreman in this respect was not negligent. A full and affirmative charge on contributory negligence as to the manner of appellee's holding the shafting was given. There can be no pretence in the evidence that the pulley could have been held in any other manner by appellee than the way he did hold it; and there was no error, we think, in refusing special charges complained of in the sixth, ninth, tenth and eleventh assignments. There are no propositions under these assignments pointing out particular errors.

The pleadings raised the issue of negligence upon the part of appellant through its foreman and negligence of a fellow servant. The evidences raises the issue of negligence of the master combined with the negligence of appellee's fellow servant, Woolery. Appellant is liable for its own negligence combined with the negligence of a fellow servant. International G. N. Ry. Co. v. Zapp, 49 S.W. 673; International G. N. Ry. Co. v. Bonatz, 48 S.W. 767; Gulf, C. S. F. Ry. Co. v. Kizziah, 86 Tex. 81, 23 S.W. 578. The court, therefore, did not err as complained of in the twelfth assignment.

The thirteenth assignment complains of the refusal to grant a new trial because the verdict is contrary to the law and evidence. The case, we think, was properly submitted to the jury, and the evidence warrants the verdict.

The judgment was ordered affirmed.

Affirmed.