Houston & T. Cent. Ry. Co. v. Burns

• Decision Date: 25 May 1901
• Parties: HOUSTON & T. CENT. RY. CO. v. BURNS.
• Court: Texas Court of Appeals

63 S.W. 1035

HOUSTON & T. CENT. RY. CO. v. BURNS.

Court of Civil Appeals of Texas.

May 25, 1901.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by Jack Burns against the Houston & Texas Central Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

W. T. Burns, for appellant. Wynne, McCourt & Bowlin and Carden & Carden, for appellee.

STEPHENS, J.

This suit was brought by appellee to recover of appellant damages for personal injuries, and resulted in a verdict and judgment in his favor for $11,650, from which this appeal is prosecuted. The evidence offered to sustain the claim tended to show that he was seriously injured on the 8th day of October, 1899, near Angus, Tex., a station on appellant's road, through the negligence of the engineer of the freight train of which he was conductor. The engineer and those assisting him undertook to annex one or more empty cars to the train, and, according to the testimony of appellee, did it in such a careless and violent manner as to knock him off his seat in the caboose, to his great injury, as alleged. In submitting this issue to the jury, the court gave the following charge, to which error is assigned: "Unless you believe from the evidence that the party or parties in charge of the empty cars used more force than was necessary in attaching the same to the caboose, or were otherwise negligent in coupling the same onto the caboose in the way and manner they did at the time testified about, then you will find for defendant, without regard to whether you believe the plaintiff was injured or not." This charge seems to be subject to the criticism embodied in the second proposition submitted under the assignment complaining of it, that it made the use of unnecessary force in attaching the empty cars to the caboose negligence per se, and was thus a charge on the weight of the evidence. That it is inadmissible for the judge to charge the jury, impliedly even, that an act or omission is negligence which the statute has not made so, is too well settled in this state to require the citation of authority. This we do not understand counsel for appellee to controvert, but their counter proposition is that the clause complained of "could not have misled the jury, or prejudiced the case in the least," since the charge, as a whole, correctly submitted the issue of negligence to the jury. Looking to other portions of the charge, we find that the failure of those engaged in annexing the empty cars "to exercise ordinary care to avoid injuring those in the caboose" was made the test of liability; that is, if, on account of such failure, "the empty cars were run violently against the caboose," to the injury of appellee. But this did not prevent the jury from inferring from the charge complained of, and quoted above, that the judge considered the use of more force than was necessary in attaching the cars to the caboose as sufficient proof of negligence. The use of the word "otherwise" in this charge was calculated to make that impression, and we have no means of determining that it did not do so.

The following written release was interposed by appellant as a bar to this action: "In consideration of the sum of five hundred dollars ($500.00) to me this day paid by the Houston and Texas Central Railroad Company, I hereby release and discharge said company from all claims, demands, and causes of action against it which has or may accrue to me for all damages, of every nature whatsoever, received in, and resulting from, an accident at or near Angus, Texas, station, on or about the 8th day of October, 1899, as follows, to wit: While in cupola of caboose of extra freight train 119 I was thrown against seat of cupola by shock of other cars kicked against it, I being conductor. Said company also assumes and agrees (as between itself and the undersigned) to pay Dr. R. A. McCall's bill, not exceeding $100.00, and drug bill of Ennis pharmacy, not exceeding $25.00, for medical treatment and drugs furnished the undersigned. Witness my hand at Houston, this 19th day of Dec., 1899. No promise of employment or other agreement not herein expressed has been made by said company. J. Burns. Witness: J. R. Stuart. Clayton Herrington, residence, Houston, Texas. Mrs. J. Burns." Appellant paid the $500 named in the release by draft drawn in favor of, and indorsed by, appellee, and also paid the doctor and drug bills. Appellee sought to avoid the settlement, mainly upon the ground of fraud, charging that he had been induced to sign the release upon the false and fraudulent representations of appellant, its agents and servants, that it was merely a receipt for wages in advance to March 1, 1900. He also alleged that he was in a state of insanity or mental stupor when the instrument was executed, and did not understand it, and, in general terms, that its execution was due to mutual mistake, etc. As to what occurred when the release was executed there was conflict in the evidence; Mr. Herrington, claim agent for appellant, testifying on this point: "I read the contract to Mr. Burns, and then handed it to him, and asked him to read the release,—to be sure it was thoroughly understood by him,—and I think Dr. Stuart came in shortly after that, or during that portion of the conversation, and then it was signed, after it was read over by Mr. Burns. He read it himself. Mrs. Burns read it. She also signed it as a witness, at my request." Dr. Stuart testified: "It...