Baylor University v. Bradshaw

• Decision Date: 27 June 1932
• Docket Number: No. 7653; Motion No. 7364.,7653; Motion No. 7364.
• Citation: 52 S.W.2d 1094
• Parties: BAYLOR UNIVERSITY et al. v. BRADSHAW.
• Court: Texas Court of Appeals

52 S.W.2d 1094

BAYLOR UNIVERSITY et al. v. BRADSHAW.

No. 7653; Motion No. 7364.

Court of Civil Appeals of Texas. Austin.

June 27, 1932.

Rehearings Denied September 28, 1932.

Appeal from District Court, Williamson County; Harry A. Dolan, Judge.

Action by Wesley Bradshaw against Baylor University, in which defendant impleaded the International & Great Northern Railroad Company. From a judgment for plaintiff against defendant first named, and in favor of such defendant on its plea of contribution against impleaded defendant, both defendants separately appeal.

Reversed and rendered in part, and in part affirmed.

Jos. W. Hale, Nat. Harris, and H. M. Richey, all of Waco, and E. C. Gaines, of Austin, for appellant Baylor University.

Jno. B. Atkinson, of Waco, for appellant International & G. N. R. Co.

Sewell, Taylor, Morris & Garwood, of Houston, for appellee and cross-appellant Bradshaw.

Jos. W. Hale, of Waco, for cross-appellee Union Automobile Ins. Co.

McCLENDON, C. J.

This litigation grew out of the following facts:

January 22, 1927, Wesley Bradshaw (herein called Bradshaw), while riding in a motorbus, was injured as the result of a collision between the bus and a train of the International & Great Northern Railroad Company (called herein the railroad) at a public crossing within the corporate limits of Round Rock, Williamson county. The bus was owned by Baylor University (herein called Baylor), and was used in transporting its athletic teams to and from intercollegiate athletic games in which its teams participated. On the occasion in question the Baylor basket ball team was being transported from Waco to Austin for a game that evening with the University of Texas team. Bradshaw, a former student of Baylor and former member of its team, was traveling in the bus as a guest at the invitation of the Baylor coach.

Bradshaw sued the railroad in McLennan county, alleging various acts of negligence. The railroad impleaded Baylor, seeking (in case judgment went against it) indemnity, or (in the alternative) contribution under R. S. art. 2212. Indemnity was sought on two grounds:

1. That the negligence of Baylor was the sole proximate cause of the collision.

2. That the negligence, if any, of the railroad was passive only, and that of Baylor active.

Contribution was predicated upon the theory that Baylor and the railroad were joint tort-feasors.

The trial court severed the railroad's cross-action against Baylor from the Bradshaw-Baylor suit, and upon a directed verdict, rendered judgment that the railroad take nothing by its cross-action against Baylor.

There was a mistrial in the Bradshaw-Railroad suit; and thereafter (November 23, 1927) the railroad paid Bradshaw $6,500, and the latter executed the following document (formal parts omitted):

"Whereas, on or about January 22nd, 1927, at or near Round Rock, Williamson County, Texas, Wesley Bradshaw was injured in a collision between a certain bus, then and there being owned and operated by Baylor University, a corporation, and a passenger train of International-Great Northern Railroad Company whereby the said Wesley Bradshaw claims damages against all persons legally liable to him, and as between said Railroad Company and said claimant an agreement has been made involving a covenant not to sue, and an assignment of the cause of action in part as against Baylor University; now, therefore, this instrument, witnesseth:

"1. For and in consideration of the sum of six thousand five hundred dollars ($6500.00) cash in hand this day paid by International-Great Northern Railroad Company to Wesley Bradshaw, the receipt of which sum is hereby acknowledged, said Wesley Bradshaw has covenanted and agreed, and by these presents does covenant and agree with said International-Great Northern Railroad Company that he will not, at any time in the future, present or prosecute any form of action whatsoever against the International-Great Northern Railroad Company, and will not sue or permit said company to be sued on account of the injury of the said Wesley Bradshaw, in so far as it lies within his power to prevent, and the said Wesley Bradshaw agrees to fully protect, hold harmless and indemnify the said International-Great Northern Railroad Company against any action brought for him by any other person whatsoever against the International-Great Northern Railroad Company, for and with the consent, assistance, or co-operation of the said Wesley Bradshaw, on account of the injury of the said Wesley Bradshaw.

"2. Further, in consideration of the payment of the said sum of $6,500.00, the said Wesley Bradshaw has this day assigned and conveyed, and by these presents does assign and convey unto the International-Great Northern Railroad Company, with the reservation hereinbefore specified, his entire cause of action, if any he has, against Baylor University, and all other persons, on account of the injury of the said Wesley Bradshaw in the collision above mentioned, hereby authorizing the International-Great Northern Railroad Company to employ an attorney in his name and behalf to prosecute any action or actions by International-Great Northern Railroad deemed necessary and advisable to protect its interests in this assignment, and to prosecute any action or actions in the name of the said Wesley Bradshaw, it being understood that the International-Great Northern Railroad Company is to assume and pay for all expenses incurred, including court costs and attorney's fees involved in the prosecuting of any such action or actions.

"The said Wesley Bradshaw reserves an interest, however, in said cause of action, and in the result of any suit or suits brought thereupon, to the extent of an amount not to exceed $100.00.

"Furthermore, the said Wesley Bradshaw obligates himself to co-operate with the International-Great Northern Railroad Company in the prosecution of any such action or actions against Baylor University, or any other person agreeing to appear and testify as a witness to the true facts known to them, and otherwise assist in any manner reasonably necessary; it being understood, however, that he is not to be out any money in the handling of such suit or suits, all expenses to be defrayed by the International-Great Northern Railroad Company.

"3. It is expressly understood that this instrument is not intended to accomplish a release of the cause of action arising on account of the injury of the said Wesley Bradshaw, but is intended only as a covenant not to sue, coupled with an assignment of the cause of action as against Baylor University, if any, with the reservation specifically noted."

Final judgment in the Bradshaw-Railroad suit was thereafter rendered, reading:

"On this, the 7th day of May, 1928, it appearing to the Court that all matters in controversy in the above numbered and entitled cause had been settled between the parties thereto, the Court is therefore of the opinion that this cause should be dismissed:

"It is, therefore, ordered, adjudged and decreed by the Court that this cause be and the same is hereby dismissed at defendant's cost, for which execution may issue."

This suit was brought in the district court of Williamson county in the name of Bradshaw against Baylor, for compensatory damages for the injuries he received as a result of the collision, several acts of negligence being alleged.

Baylor impleaded the railroad, setting up the Bradshaw-Railroad agreement as a settlement; alleged that the assignment feature of the agreement was void because Baylor and the railroad were joint tort-feasors, that Bradshaw had no substantial interest in the suit, and could recover in no event in excess of $100. Baylor also asserted, in case judgment went against it, that it was entitled to indemnity against the railroad, and in the alternative to contribution, upon the same grounds asserted by the railroad in the McLennan county suit.

The railroad, in defense of the cross-action of Baylor against it, set up the same acts of negligence alleged in the Bradshaw petition (1) as the sole and (2) as the active proximate cause of the collision, and, in the alternative, if Baylor be held to have the right of contribution against it, "that the amount to be paid by said defendant be apportioned as to what amount should be paid by each of them respectively."

The trial was to a jury upon special issues, resulting in the following findings:

1. That Baylor was guilty of negligence which was a proximate cause of the collision in each of the following particulars:

(a) The bus driver was driving the bus within the corporate limits of Round Rock at a speed in excess of 20 miles per hour as the bus approached the crossing where the collision occurred.

(b) The bus driver failed to turn the bus to the left so as to avoid the collision after discovering the approach of the train.

(c) The bus driver failed to bring the bus to a complete stop before driving upon the track.

(d) The bus driver attempted to beat the train over the crossing by accelerating the speed of the bus after discovering the approach of the train.

2. That the agents, servants, and employees of the railroad were guilty of negligence which was a proximate cause, but not the sole proximate cause, of the collision, in that they operated the "train at the time of the collision at a high and dangerous rate of speed."

3. That $6,500, "if paid presently, would compensate Wesley Bradshaw for the injuries received by him upon the occasion in question."

Other issues of negligence on the part of Baylor and the railroad were submitted, upon which there was either no finding, or a negative finding of actionable negligence. These issues will be noted later as they may become pertinent to the several questions presented.

Upon the above jury findings, the trial court rendered judgment in favor of Bradshaw against Baylor for $6,500, and in favor of Baylor upon its contribution plea against the railroad for $3,250. The...