Robertson v. Trammell

• Decision Date: 02 November 1904
• Citation: 83 S.W. 258
• Parties: ROBERTSON v. TRAMMELL.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

83 S.W. 258

ROBERTSON v. TRAMMELL.^*

Court of Civil Appeals of Texas.

November 2, 1904.

Error from District Court, Dallas County; T. F. Nash, Judge.

Action by J. M. Trammell against S. A. Robertson and another. There was a judgment for plaintiff against defendant Robertson, who brings error. Affirmed.

Alexander & Thompson, for plaintiff in error. Carden, Senter & Carden, for defendant in error.

EIDSON, J.

This is an action by J. M. Trammell, defendant in error, originally brought against the Houston & Texas Central Railway Company, the St. Louis Southwestern Railway Company and plaintiff in error, S. A. Robertson, claiming damages for personal injury alleged to have been sustained by him while in the employment of said Robertson. It was alleged that on November 9, 1902, while acting as fireman on a locomotive in control of the said Robertson, a railroad contractor and builder, but owned by the St. Louis Southwestern Railway Company, and while riding on said engine in the capacity of fireman, in the city of Dallas, on track owned, used, or controlled by the said St. Louis Southwestern Railway Company or S. A. Robertson, by reason of the negligence of the Houston & Texas Central Railway Company in leaving unguarded or without light or any protection some stationary cars on said track, and by reason of negligence on the part of said Robertson and his employés in operating said engine and cars attached to it at a high rate of speed, and without keeping safe lookout to avoid such obstructions on the track, a collision occurred between said engine and said cars, immediately prior to which defendant in error, having first discovered the impending collision, jumped from said engine and sustained his injuries. After numerous depositions had been taken in the suit, defendant in error, by written articles of agreement entered into with the Houston & Texas Central Railway Company, arranged for the full and complete settlement with said railway company, covering its full liability on account of said injuries, receiving within a few days thereafter $1,000 as a consideration for such settlement, and also executed a receipt for said amount and a bond to indemnify said railway company against further liability. After such settlement defendant in error filed his second amended original petition, in which he omitted the Houston & Texas Central Railway Company as a defendant, but repeated his averments of negligence against the St. Louis Southwestern Railway Company of Texas and S. A. Robertson, and also charged them with failure to furnish plaintiff a safe place to work. The St. Louis Southwestern Railway Company of Texas and S. A. Robertson filed separate answers, embracing substantially the same defenses, which were as follows: (1) General denial; (2) failure to use ordinary care by keeping a reasonable lookout, which conduced proximately to his injury; (3) that subsequent to the institution of the suit plaintiff settled with the Houston & Texas Central Railway Company, one of the alleged tort feasors, and was paid and received $1,000, which was accepted as a "complete indemnity of said Houston & Texas Central Railway Company against the maintenance of any action against it or any person whomsoever on account of the things alleged in plaintiff's petition filed in this cause," being the first amended original petition filed December 2, 1902, reference to which was expressly made in the pleading, whereby it was charged that plaintiff was settled with in full, and contracted to hold the Houston & Texas Central Railway Company harmless, and by reason of the complete accord and satisfaction as to said tort feasor plaintiff was estopped and barred from the prosecution of this suit. The trial resulted in a verdict and judgment in favor of the St. Louis Southwestern Railway Company of Texas, and in favor of the plaintiff (defendant in error) against S. A. Robertson, plaintiff in error, for $1,000.

Plaintiff in error's first assignment of error is: "The court erred in refusing defendant's special charge No. 1, directing a verdict for defendant, on account of the manifest insufficiency of the evidence as to any negligence of this defendant, and because under the evidence of accord and satisfaction this defendant was entitled to a peremptory instruction in his favor." His first proposition under the above assignment is: "The evidence as to any want of care on part of defendant, Robertson (unknown to plaintiff), was manifestly insufficient to sustain a verdict for plaintiff, and under such circumstances the trial court should have fixed responsibility for the accident solely upon defendant Houston & Texas Central Railway Company, which was alone shown to be liable, and which company plaintiff obligated himself to fully protect against any liability." The contention of plaintiff in error embraced in the above proposition we do not think is borne out by the record. The evidence tends to show that it was usual for cars to be found on the track where the cars were which were run into by the engine upon which defendant in error was employed, and it was the duty of plaintiff in error to keep a proper lookout for such cars, which the evidence tends to show he failed to do. The evidence also tends to show that plaintiff in error was negligent in operating the train, at the time of the accident, at such a high rate of speed that it was impossible to stop it in time to avoid a collision with cars that might be found on the track, where it was usual for them to be found. The evidence further tends to show negligence upon the part of plaintiff in error in failing to connect the engine and cars with air brakes, so as to enable his employés to control the train. It reasonably appears from the testimony that the engine plaintiff in error was operating at the time of the accident was a light one, and that in the exercise of ordinary care in providing a safe place for the defendant in error to work he should have connected same with the cars by air brakes, which the evidence shows was not done. We are of opinion that there is sufficient evidence in the record to support the allegations of negligence in defendant in error's petition against plaintiff in error; and hence there was no error in the refusal of the court to direct a verdict for plaintiff in error upon the ground that the testimony was insufficient to show any negligence on his part.

The other ground embraced in said assignment, upon which plaintiff in error claims that the court below should have directed a verdict in his favor, is that the evidence showed an accord and satisfaction of defendant in error's cause of action or claim for damages. Under this alleged error plaintiff in error submits the proposition: "The liability of the alleged joint tort feasor the Houston & Texas Central Railway Company was for the full amount of the unliquidated damage sustained by plaintiff, and it was clearly established by plea and evidence that the payment of $1,000 made by that company and received by plaintiff in the way of compromise was in full settlement of all liability by said company, and it thus operated as a bar to any further recovery, constituting a full accord and satisfaction, and an obligation on the part of plaintiff to hold the Houston & Texas Central Railway Company harmless." It appears from the record that plaintiff in error introduced the following testimony upon this issue:

"H. & T. C. R. R. Co. No. 2,192. Dallas, Texas, April 23, 1903. At sight pay to the order of J. M. Trammell and Carden, Senter & Carden ($1,000) one thousand dollars, for full and final settlement according to contract and bond for injuries received in Dallas November 9th, 1902, and charge to proper account. Geo. T. Holman, Claim Agent. To W. H. Field, Treas. H. & T. C. R. R. Co., Houston, Texas."

The following indorsements appear on the back:

"J. M. Trammell. Carden, Senter & Carden."

"Pay to the order of any bank or banker. The National Bank of Commerce of Dallas, Texas; J. D. Estes, Cashier."

"Left by P. & M. Natl. Bank."

"Paid April 25, 1903. Planters' & Mechanics' National Bank, Houston, Texas."

"J. M. Trammell vs. St. Louis Southwestern Railway Company of Texas et al. No. 21,934. In the District Court for the Fourteenth Judicial District of Texas, Dallas County. It is agreed by and between the plaintiff in the above entitled and numbered cause and Houston & Texas Central Railroad Company, defendant therein, acting by and through their attorney of record: (1) That plaintiff will dismiss this action as to said defendant, and hereby agrees and covenants never to make the matters and things set out and the circumstances described in plaintiff's petition herein, the basis of a suit against said defendant in any court, and never to bring or to maintain an action because thereof against said defendant. (2) That in consideration of the foregoing, said Houston & Texas Central Railroad Company will, on or before the 27th day of April, 1903, pay to the plaintiff and Carden, Senter & Carden the sum of one thousand dollars. (3) That in the event, in the further prosecution of this suit by the plaintiff against the said Houston & Texas Central Railroad Company's co-defendant herein, any liability should be charged against said Houston & Texas Central Railroad Company by any person whatsoever, on account of the matters and things set out in plaintiff's petition herein, or as a result thereof, this agreement may be pleaded and shall operate as a contract between the parties hereto that said Houston & Texas Central Railroad Company shall not be successfully sued, either by the plaintiff, or by any other person, either by original suit or by cross-bill or cross action, by either the plaintiffs or either or both of said defendants co-defendants herein, because of the injuries sustained by plaintiff as alleged in his petition herein, and as a complete indemnity of the said Houston & Texas Railroad Company...