Missouri, K. & T. Ry. Co. v. Hendricks

• Decision Date: 22 February 1908
• Citation: 108 S.W. 745
• Parties: MISSOURI, K. & T. RY. CO. v. HENDRICKS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

108 S.W. 745

MISSOURI, K. & T. RY. CO. v. HENDRICKS.^*

Court of Civil Appeals of Texas.

February 22, 1908.

Rehearing Denied March 14, 1908.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Personal injury action by L. R. Hendricks against the Missouri, Kansas & Texas Railway Company. Judgment of $18,000 for plaintiff, and defendant appeals. Affirmed.

The portion of plaintiff's second supplemental petition to which the exceptions were directed is as follows: That in less than 30 days after he received said injuries, to wit, about the 25th day of October, 1904, it began negotiations of settlement with plaintiff on account of his injuries, by and through its duly and legally authorized claim agent L. B. Ewing, and recognized plaintiff's claim for damages on account of his said injuries, and discussed with plaintiff the matter of settlement of plaintiff's claim, and told plaintiff the company would do what was right with plaintiff, and thereby induced plaintiff to believe that it waived such notice in writing, and on various occasions thereafter, before the filing of suit, and after the expiration of 30 days from date of plaintiff's injuries, defendant, through its legally authorized agent Ewing and General Attorney T. S. Miller, who were duly authorized to settle same, discussed and talked with plaintiff as to a settlement of his claim for damages on account of his injuries.

Appellee, L. R. Hendricks, instituted this suit against appellant, Missouri, Kansas & Texas Railway Company, to recover damages in the sum of $50,000 on account of personal injuries received by him near the city of Oklahoma in the territory of Oklahoma, October 3, 1904, by being struck by one of appellant's tenders, pushed by one of its engines, while he was crossing over the Canadian river on appellant's railroad bridge. By his first amended original petition he alleged that this bridge on said date, and for a long while prior thereto, had been commonly and habitually used by the public generally as a footway upon which to travel across said river. That about daylight on said day he started to walk across the same, and when he had gotten a distance of about 15 feet out on the same he discovered an engine and tender approaching from his rear, and endeavored to return and get off the bridge, but, before he could do so, he was struck and run over and so injured that it was necessary to amputate both legs. That his injuries were caused by the negligence of appellant in the following respects: (1) In that the employés operating the engine failed to have a man on the lead end of the tender, as appellant's rules for the control and guidance of its employés required; (2) that they failed to have a light on the lead end of said tender, as said rules required; (3) or that if there were no rules having the above requirements said employés were not exercising ordinary care in operating the engine without a man and light on the lead end of the tender; (4) that the usual and customary way of doing such work was to have a "herder" on the lead end of the tender for the purpose of throwing switches and keeping a lookout for persons on the track, but this they failed to do, although their view of the track was cut off by a tender full of coal; (5) that they failed to keep a lookout to see if there were any persons on the bridge, although had they done so they would have discovered appellee in time to have avoided injuring him; (6) that they negligently failed to ring the bell or blow the whistle or give any signal or warning of the approach of the engine. That had there been some one on the lead end of the tender he could and would have discovered appellee in ample time to have signaled the engineer and thereby caused the same to be stopped before it reached appellee; that appellee looked back before starting upon said bridge but could see no train approaching; that had there been a light on the lead end of the tender he would probably have seen the approaching engine before entering upon the bridge, but seeing no light and hearing no signal or other warning he proceeded upon the same and was struck. Appellant's first amended original answer consisted of a general demurrer, special exceptions, general denial, and then by special answers alleged, in substance, that appellee's injuries were caused by his own negligence and that of his fellow servants, or resulted from one of the risks assumed by him. The answer set out certain acts and conduct on the part of plaintiff which it was alleged constituted contributory negligence. Appellant further alleged that when the plaintiff took employment with the defendant in consideration of being given such employment he made and entered into a written contract with the defendant which, among other things, contained in substance the following stipulation and agreement: "I further agree that if, while in the service of the company [meaning this defendant] I sustain any personal injury, for which I shall or may make claim against the company for damages, I will, within thirty days after receiving such injuries, give notice in writing of such claim to the claim agent of said railway company, which notice shall state the time, place, and particulars of the injuries, and the nature and extent thereof, and the claim made therefor, to the end that such claim may be fully, fairly, and promptly investigated, and my failure to give written notice of such claim in the manner, and within the time aforesaid, shall be a bar to the institution of any suit on account of such injuries;" that the foregoing stipulation was reasonable; that the name of the claim agent and the names of assistant claim agents, of various station agents, and of various general officers of this defendant, together with their addresses, were well known to the plaintiff at the time he received the injuries involved in this suit, but the plaintiff wholly failed and refused to give to defendant such a written statement of his injuries, stating the time, place, and particulars of the same, the nature and extent thereof, and the claim made therefor, as required by the terms of said contract, and wholly failed to give any written statement thereof of any kind until June 2, 1905, and wholly failed and refused to give any notice in writing to such tenor and effect to the defendant's claim agent within 30 days after said injuries were received, and, because thereof, is not entitled to recover anything in this suit; that by reason of his failure to do these things the defendant has been deprived of an opportunity to fully and fairly investigate this case; that under the laws in force in the territory of Oklahoma at the time these injuries were received this contract and agreement was valid and binding. It was alleged that plaintiff received his injuries in the territory of Oklahoma, and that the laws of that territory govern the rights of the parties to this suit. The plaintiff in reply alleged that, while he had previously been in the employment of the defendant in the capacity of a brakeman, he was not in defendant's employ at the time he sustained said injuries. If in this plaintiff be mistaken, then he says that the train upon which he had been braking had left Oklahoma City prior to his injuries; that plaintiff was not on duty at the time of his injuries, and was not doing or undertaking to do anything for the defendant railway company, and was not then subject to its orders, control, or direction, and was in no sense a fellow servant with defendant's employés in operating the engine and tender which ran over and injured him. For further and special reply to that portion of said answer setting up an alleged written contract between plaintiff and defendant as a bar to plaintiff's suit, and alleging that under said contract plaintiff was to give notice of any claim that he might make against the company for damages for any personal injuries within 30 days after receiving such injuries, etc., in substance a waiver by defendant of the requirements of said contract.

A trial resulted in a verdict and judgment for plaintiff in the sum of $18,000. Defendant's motion for new trial having been overruled, it perfected an appeal to this court.

Coke, Miller & Coke and Smith & Wall, for appellant. Wolfe, Hare & Maxey and Finley, Knight & Harris, for appellee.

BOOKHOUT, J. (after stating the facts as above).

There was no error as contended by appellant in its propositions under the first and second assignments of error in overruling appellant's special exceptions to that paragraph of the petition, wherein appellee pleaded a waiver of the written contract requiring notice of any claim for damages for injuries sustained within 30 days from the date of such injury. The petition specifically alleged certain acts and conduct of the agents of appellant as constituting the alleged waiver, which were sufficient, if established, to amount to a waiver. It was also alleged that such agents had authority to waive said notice.

The third assignment assails as error the ninth paragraph of the court's charge, which is as follows: "You are further instructed that the undisputed evidence in this case shows that on the 31st day of September, 1902, by a written contract entered into between plaintiff and defendant, plaintiff agreed that in the event he should sustain any personal injury while in the service of the defendant for which he should make claim against defendant for damages he would, within 30 days after receiving such injury, give notice in writing of such claim to the claim agent of the defendant, which notice should state the time, place, and particulars of such injuries and nature and extent thereof, and the claim made therefor. The undisputed evidence further shows that said provisions in said contract were not complied with by the plaintiff, or, in other words, that plaintiff did not give the written notice within thirty days...