Bradshaw v. Baylor University

• Citation: 84 S.W.2d 703
• Decision Date: 17 July 1935
• Docket Number: No. 1872-6393.,1872-6393.
• Parties: BRADSHAW v. BAYLOR UNIVERSITY et al.
• Court: Texas Supreme Court

84 S.W.2d 703

BRADSHAW v. BAYLOR UNIVERSITY et al.

No. 1872-6393.

Commission of Appeals of Texas, Section A.

July 17, 1935.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by Wesley Bradshaw against Baylor University, in which defendant impleaded the International & Great Northern Railroad Company. Judgments for plaintiff against defendant first named, and in favor of such defendant on its plea of contribution against impleaded defendant, were reversed and rendered in part and in part affirmed by the Court of Civil Appeals [52 S.W.(2d) 1094], and the plaintiff brings error.

Affirmed.

Sewell, Taylor, Morris & Garwood and W. J. Knight, all of Houston, for plaintiff in error.

Joseph W. Hale, Nat. Harris, H. M. Richey, and John B. Atkinson, all of Waco, and E. C. Gaines, of Austin, for defendants in error.

HICKMAN, Commissioner.

A very full statement of the case is made by the Court of Civil Appeals through Chief Justice McClendon. 52 S. W.(2d) 1094, 1096. An abridged statement will serve the purposes of this opinion.

Wesley Bradshaw sustained personal injuries in a collision between a motorbus in which he was riding and a train operated by the International & Great Northern Railroad Company. The bus was owned and operated by Baylor University, and was being used on the occasion of the accident to transport the Baylor basketball team from Waco to Austin for a game with the University of Texas team. Bradshaw was accompanying the party as a guest of the Baylor coach. Prior to the institution of the present suit, a contract in writing was entered into between Bradshaw and the railroad company, which may be epitomized as follows:

In consideration of $6,500 cash in hand paid to him by the railroad company, Bradshaw covenanted and agreed that he would not at any time in the future sue, or permit the railroad company to be sued, on account of his injuries, and would protect, hold harmless, and indemnify it against any action brought for him by any other person. For the same consideration he assigned to the railroad company his cause of action, if any he had, against Baylor University, and authorized it to prosecute a suit thereon in his name, but at its own expense. There was reserved to Bradshaw an interest in the 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." With the question of whether the attempted reservation was void for indefiniteness and the allied question of what interest, if any, was reserved to Bradshaw, we are not concerned, for each is unimportant under our view of the controlling question.

After the contract was executed and the consideration therefor, $6,500, paid, this suit was instituted in the name of Bradshaw against Baylor University as the sole defendant for damages on account of the injuries received by him as a result of the collision. Quoting from the opinion of the Court of Civil Appeals:

"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. * * *

"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 t...