St. Louis Southwestern Ry. Co. of Texas v. Kern.

• Decision Date: 02 March 1907
• Citation: St. Louis Southwestern Ry. Co. of Texas v. Kern., 100 S.W. 971 (Tex. App. 1907)
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. KERN.
• Court: Texas Court of Appeals

100 S.W. 971

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. KERN.

Court of Civil Appeals of Texas.

March 2, 1907.

Appeal from District Court, Dallas County; T. F. Nash, Judge.

Action by S. A. Kern against the St. Louis Southwestern Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

E. B. Perkins and Crane & Gilbert, for appellant. Crawford & Crawford and W. I. Ford, for appellee.

TALBOT, J.

This action was brought by the appellee to recover damages of appellant on account of an alleged personal injury caused by the use of a defective lifting jack. Appellee alleges, among other things, that he was a section hand, doing track work on appellant's line of railroad near Carrollton, in Dallas county, Tex., on October 29, 1904; that it is necessary, in doing work on a track and roadbed, to use certain tools, among which is a contrivance for lifting known as a "jack," and that such tools are furnished by appellant; that while engaged in the track work on appellant's road, and while conducting himself in a careful and prudent manner, and while engaged in removing from the track, under the direction of the foreman, a lifting jack, the handle of the same, on account of the kind of jack used, and on account of defects in said jack, slipped and fell, throwing the plaintiff violently to the ground and inflicting injuries upon him, the character of which were described. The lifting jack was alleged to be defective in that it was not provided with a clutch or what is commonly called a "dog" to hold the lifting lever or handle, which works in notches, when the same has been elevated to the desired height, by means of which the lever could be easily tripped and the track lowered with safety. It was alleged that the jack in use when appellee was injured could not be so tripped, but that to lower the track after the same had been lifted with said jack it was necessary to apply the weight of the men to the lever in order to trip it; "that said jack was an old and discarded one, rickety and loose, and when in use would fly from under the track by force of the weight of the track because of the old and worn out condition of the same, and that by reason of the great force necessary to trip the jack so as to lower the same it was wholly defective and dangerous to such work." Defendant pleaded a general denial, contributory negligence, and that plaintiff was an experienced man in the labor in which he was engaged; that if the lifting jack was defective and dangerous he knew of it and assumed the risk incident to his employment and to the use of said jack. A trial having resulted in a verdict and judgment for appellee, appellant has appealed.

The first assignment of error complains of the court's action in excluding, upon the objection of appellee's counsel, the following portion of a letter written by appellee to appellant's claim agent subsequent to the date of his injuries, viz.: "I assess damages at $500 (five hundred dollars)." The bill of exception contains a copy of the entire letter, which, omitting the date and address, is as follows: "Dear Sir: I present to you my claim for damages done on October 29th, 1904, by an inferior jack used by the foreman at that time. I had one of my ribs broken, and other injuries by said jack, and thinking you would be here I have delayed this claim. I assess damages at $500 (five hundred dollars). Hoping you will call at an early date, and save trouble of suit, I am very respectfully, S. A. Kern." We think there was no error in this action of the court. The letter should be regarded as mere presentation of appellee's claim for damages on account of his alleged injuries, and an offer of settlement for the amount stated, to avoid litigation. The policy of the law favors such settlements, and protects negotiations made in good faith for that purpose. It is true the letter does not expressly propose a compromise and settlement of the claim, but such we think is the clear import and signification of its words; and, if this interpretation is correct, it was clearly inadmissible upon well-established legal principles. Railway Co. v. Ragsdale, 67 Tex. 24, 2 S. W. 515; Hurt v. Cooper, 63 Tex. 365; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527, 23 L. Ed. 868; McKnight v. Milford Gin Co. (Tex. Civ. App.) 99 S. W. 198; 2 Whart. Ev. (3d Ed.) § 1090.

The refusal to give the following special charges requested by the appellant is assigned as error: "Before the plaintiff can relieve himself of the assumption of the risk in using the defective lifting jack, if you believe from the evidence it was defective, on account of promise to repair the same, or to furnish another one not defective, if there was such a promise on the part of said defendant, you must believe from the evidence that the plaintiff objected to the use of the lifting jack, and must also believe that the same was in fact defective or out of repair, and that the plaintiff continued in the service upon the faith of a promise to furnish another one not defective and in good repair, and you must also believe that the defendant had had a reasonable time after the complaint was made, and after the lifting jack was found to be defective, if it was, or out of repair, if it was, in which to have secured another in lieu of the one being used, and unless you believe all these things, you will find for the defendant. Mere complaint by an employé about the condition of tools furnished for his use by his employer is not sufficient to make the employer liable for the results of its use, or to relieve the employé of his assumption of the risk of such use; but there must also be a promise, express or implied, on the part of the employer, to repair the alleged defect, and the subsequent use of the defective tool by the employé must be upon the faith of such promise so made. Therefore, although you may believe there was some defect in the jack being used, if there was any, on October 29, 1904, and that some complaint has been made on account thereof, there must have been a promise made to repair the defect, if any, or supply another jack; and you must also believe that a reasonable time elapsed after the promise was made, within which to repair or supply another jack; otherwise plaintiff cannot recover. If...