Houston & T. C. R. Co. v. Bright

• Decision Date: 25 March 1913
• Citation: 156 S.W. 304
• Parties: HOUSTON & T. C. R. CO. v. BRIGHT.
• Court: Texas Court of Appeals

156 S.W. 304

HOUSTON & T. C. R. CO. v. BRIGHT.

Court of Civil Appeals of Texas. Galveston.

March 25, 1913.

Rehearing Denied April 17, 1913.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by W. W. Bright against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Wm. A. Vinson, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellee.

McMEANS, J.

W. W. Bright brought this suit against the Houston & Texas Central Railroad Company to recover damages for personal injuries sustained by him while in the defendant's employment as a bridge worker. Liability was predicated upon the alleged negligence of defendant in failing to furnish to plaintiff a clawbar that was reasonably safe for use, and in furnishing one that was defective. The defendant answered by general denial, pleas of assumed risk and contributory negligence, and further specially alleged that on July 13, 1909, prior to the institution of this suit, the plaintiff and the defendant agreed upon a full settlement of plaintiff's cause of action, and the defendant thereupon paid to the plaintiff the sum of $195, which he received and accepted in full settlement, satisfaction, and discharge of his cause of action set forth in the petition, and of all damages sustained by him; that on said date the plaintiff, by written instrument, released the defendant from all claims, demands, and causes of action which had accrued, or might thereafter accrue, and for all damages of whatsoever nature received in or resulting from the accident alleged to have been sustained by him. By supplemental petition the plaintiff alleged that the contract of settlement was not binding upon him, for the reason that Dr. S. C. Red, the defendant's physician, represented to the plaintiff, the day after he was hurt, and prior to the settlement, that the injury suffered by him consisted simply of a common sprain of his ankle, and that he would be as well as ever, and out at work in a month, and that his injuries were not as great as they really were; that the representation was false, the fact being that the plaintiff was seriously and permanently injured, of which fact said physician knew, and ought, in the exercise of ordinary care and skill, to have known, but of which the plaintiff was ignorant; that as an inducement to plaintiff to make the release, the defendant's claim agent repeated to the plaintiff, in substance, the representations made by said physician, and the plaintiff, believing such representations to be true, and relying thereon, was thereby induced to make the settlement which otherwise he would not have made; that said claim agent and said physician were acting together, and the claim agent used the physician to deceive the plaintiff as to his condition, in order to make an advantageous settlement with him. The plaintiff tendered into court and offered to restore the consideration received by him for the release, or to have it deducted from his recovery. A trial before a jury resulted in a verdict and judgment for plaintiff for $2,500. Defendant's motion for a new trial having been overruled, it has appealed.

The court in its general charge instructed the jury on the issue of contributory negligence as follows: "Should you find that defendant was negligent towards plaintiff as before submitted, and that such negligence was a proximate cause of alleged injuries to him, but should you believe from the evidence that plaintiff failed in some manner to exercise ordinary care, as before defined, for his own safety in failing to properly place or adjust the clawbar under the head or about the spike, or in otherwise handling said clawbar, and that he thereby contributed to alleged injuries of which he complains, then you will diminish the damages, if any, in proportion to the amount of negligence you find attributable to the plaintiff." This charge is assailed by appellant's first assignment, its first proposition thereunder being as follows: "It appearing from the undisputed evidence that the appellee, at the time of his injury, was not engaged in operating appellant's railroad, it was affirmative error to instruct the jury that if they found the plaintiff contributorily negligent to diminish the damages in proportion to the amount of negligence attributable to him, instead of returning a verdict, in such event, for the defendant."

The evidence raised the issue of plaintiff's contributory negligence sufficiently to require the submission of that issue to the jury.

As we understand appellant's contention, it is that the benefits of what is commonly known as the Employer's Liability Act, under which the suit was brought (General Laws 1909, p. 279; Rev. St. 1911, art. 6648), are intended only for those servants of a corporation, receiver, or other person, operating a railroad, who at the time of injury are engaged in the operation of the railroad, and that as the plaintiff at the time he was injured was working on a bridge, and not engaged in the operation of the railroad, the benefits of the statute did not extend to him. The statute, in so far as it affects the question under consideration, is as follows: "That every corporation, receiver, or other person operating any railroad in this state, shall be liable in damages to any person suffering injury while he is employed by such carrier operating such railroad."

Appellant contends that the word "such" before "carrier" fully describes the persons amenable to the act, and that if the words "operating such railroad" also refer to the carrier, and not to the class of employés, that such words are a needless tautology, an idle repetition, and perform no office whatsoever in the act. In support of the contrary contention, appellee urges that there is not even a claim of ambiguity in the act, but of redundancy only, and that appellant's is answered by a recent ruling of the Supreme Court of the United States in Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, where, in considering the scope of the Federal Safety Appliance Act, a similar point was denied. We are saved the labor of discussing the question of construction of the statute, raised by the proposition, as that statute has already been construed in this state, and adversely to appellant's contention. In Railway Company v. Jenkins, 137 S. W. 711, the Dallas Court of Civil Appeals, having before it the precise question here raised, says: "The undisputed evidence is that appellee was a boiler maker helper to C. A. Oglesby, a boiler maker, both being in the employ of appellant, and that Oglesby was intrusted with authority to direct and superintend appellee in the work they were doing. * * * Section 1 of said act, so far as need be quoted, reads: `That every corporation, receiver or other person operating any railroad in this state shall be liable in damages to any person suffering injury while he is employed by such carrier operating such railroad.' Appellant contends that this section of the act indicates that its provisions are applicable only to those employés of a railway company who are, when injured, actually engaged in the operation of a railway train or cars. We do not concur in this construction of the statute. The statute does not make the railway company liable only for an injury suffered by the employé while he is engaged in the work of operating its trains or cars, but also for an injury received in the discharge of the duties required of him while employed by such company. It is manifest, we think, that it was the intention of the Legislature to apply the words `operating any railroad' to the word `carrier,' and not, as seems to be the contention of appellant's counsel, to the word `employed.' Indeed, as the sentence is constructed, it does apply to the word `carrier,' and can have reference to no other word therein." A writ of error was denied by the Supreme Court in that case.

By the authority of this decision we must overrule the proposition under discussion.

By its second proposition under the first assignment appellant asserts that: "If it be held that the statute in question applies to all employés of a railroad company, in whatever department of its service they may be engaged, then the act is in violation of the fourteenth amendment to the Constitution of the United States, in that it denies to railroad companies the equal protection of the law, and is therefore void."

This precise question was also ruled upon in the case of Railway Company v. Jenkins, above cited, and a similar contention to that here made was denied; the court saying: "The statutes referred to are not violative of the equal protection clause of the fourteenth amendment of the federal Constitution. `They are applicable to all persons of a particular class, affecting alike the employés of all corporations or persons owning or operating a railroad, when brought under their influence under like circumstances and conditions.' Railway v. Bailey, 53 Tex. Civ. App. 295, 115 S. W. 606; Railway v. Smith, 45 Tex. Civ. App. 128, 99 S. W. 743; Railway v. Grothe, 88 Tex. 262, 31 S. W. 198; Railway v. Richardson, 125 S. W. 624; Railway v. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921; Railway v. Turnipseed, Adm'r., 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463. * * * That said act is not void as being in violation of the fourteenth amendment to the Constitution of the United States, but, like the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, U. S. Comp. St. Supp. 1909, p. 1171), abrogates the common-law doctrine of fellow servant as to employés of a corporation operating a railroad, is well settled by the decisions above cited, of the courts of this state, and of the Supreme Court of the United States."

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