Panhandle & Santa Fe Ry. Co. v. Dean, 5020

• Decision Date: 28 April 1954
• Docket Number: No. 5020,5020
• Citation: 269 S.W.2d 439
• Parties: PANHANDLE & SANTA FE RY. CO. v. DEAN et al.
• Court: Texas Court of Appeals

Page 439

269 S.W.2d 439

PANHANDLE & SANTA FE RY. CO. v. DEAN et al.

No. 5020.

Court of Civil Appeals of Texas, El Paso.

April 28, 1954.

Rehearing Denied June 2, 1954.

Wigley, McLeod, Mills & Shirley, Galveston, Runge, Hardeman, Steib, Smith & Foy, Snodgrass & Smith, San Angelo, for appellant.

John H. Rogers, Paul McCollum, Warren Burnett, Odessa, for appellees.

McGILL, Justice.

This was a suit by appellee William L. Dean as plaintiff against appellant as defendant. Defendant interpleaded plaintiff's compensation carrier which by plea of intervention sought to recover from any judgment rendered for plaintiff $150 paid to plaintiff as compensation and $131.50 expended for medical expenses incurred in treating and healing the injury sustained by plaintiff. Trial was to a jury. Upon answers to special issues the court rendered judgment for plaintiff against defendant for $28,500 and costs and for intervenor out of this amount the sum of $281.50.

Plaintiff was injured while working for the B-J Service Company by being struck by a freight car when defendant backed a string of cars into such car in order to couple it onto a train. Plaintiff was working between the tracks some six to ten feet from the car, with his back turned toward it. He and a man with an air hammer were knocking cement out from between the tracks and were creating a great deal of noise.

Appellant has presented nine points on appeal. The first point is that the court erred in refusing to permit the defendant to prove that the plaintiff had settled his claim for compensation resulting from the accident for $150.00 when he claims in this suit to have been damaged to the extent of $60,000. Were the question original we should be inclined to think that appellant's contention has a great deal of merit. However, we believe that the matter has been foreclosed by the opinion of the Supreme Court in Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811, 813. The court quoted from the Fort Worth Court of Civil Appeals in Johnson v. Willoughby, 183 S.W.2d 201:

"The nature of the two claims, the one against the Highway Department and the other against the third party, are so entirely different, and so different are the rules of liability and the measure of damages applicable thereto, that the jury could only have been confused by being told the terms of the settlement."

and then said:

'We agree with the conclusion of the Ft. Worth court expressed in the foregoing excerpt * * * that the only effect of such evidence 'was to becloud the issues in the case and divert the minds of the jury.' It can hardly be gainsaid, as was further stated in Johnson v. Willoughby, that 'any supposed value that the fact of settlement, or the amount of it, or the negotiations leading up to it, could have as proof would be more than offset by the misleading effect it would likely have upon the jury.' Especially is this true since the general relevancy of evidence of that character upon the general issues involved is not only very slight but wholly indirect. Certainly it has no direct relevancy to the issues upon which the jury decides whether the third party defendants are negligent, or upon the amount of damages, if any, to be assessed against them.' (Emphasis ours.)

Appellant on oral argument practically conceded that had the settlement of the compensation claim been in a substantial sum in comparison to the amount of compensation recoverable, evidence of such settlement would have been inadmissible. In Myers v. Thomas the amount paid for settlement of the compensation claim was $7,930.73. It does not appear from the opinion of the Court of Civil Appeals or of the Supreme Court how much plaintiff claimed against the third party, or the amount of compensation he could have recovered. If the admissibility of such settlement is dependent on the amount thereof it would be very difficult indeed to say where the line is to be drawn. For this practical reason, as well as the reasons advanced in Myers v. Thomas, we think there should be no exception to the rule there announced that such evidence is inadmissible.

The second point is that the court erred in overruling defendant's objections and exceptions to Special Issues Nos. 1, 2 and 3, which submitted the failure to keep a proper lookout, and the corollary issues of negligence and proximate cause. The plaintiff pled that the employees of the defendant who were then and there in control of the train did then and there fail to keep a proper lookout. The court by Special Issue No. 1 inquired whether the defendant's employee, rear brakeman at the time of and immediately prior to the accident in question failed to keep a proper lookout, and Special Issues 2 and 3 inquired whether such failure was negligence and a proximate cause to the injuries sustained by plaintiff. We think this point is without merit. Of course the plaintiff could not know just what employees of defendant were in a position to keep a proper lookout, that is, whether they were in...