St. Louis, A. & T. Ry. Co. v. Jones

• Decision Date: 06 May 1890
• Citation: 14 S.W. 309
• Parties: ST. LOUIS, A. & T. RY. CO. v. JONES.
• Court: Texas Supreme Court

14 S.W. 309

ST. LOUIS, A. & T. RY. CO. v. JONES.

Supreme Court of Texas.

May 6, 1890.

Commissioners' decision. Consent case. Appeal from district court, Grayson county.

Bryant & Dillard, for appellant. C. B. Randall and W. W. Wilkins, for appellee.

COLLARD, J.

Plaintiff was employed by defendant, and was at work charged with the duty of taking up the slack of a rope of a pile-driver in operation at Hillsboro, Tex. His place was either at the foot of the perpendicular frames of the machine between which the pile was driven or further back between the oblique beams or ladder. About 12 feet up from the foot of the leads, or upright beams, were two pieces running back to the oblique beams made for a platform on which was a plank, kept loose, for the convenience of the operative in managing the pile and the hammer. It had to be loose, or so it would move on the platform, so as to conveniently manage the driving apparatus, but it seems it might have been tied so as to permit it to move without falling down. While plaintiff was in the performance of his duty, not knowing that the plank was loose, the defendant knowing it, it fell, and, striking him on the head, inflicted the injuries complained of. Plaintiff sued, and recovered judgment, from which defendant appealed, and assigns errors.

While plaintiff was on the stand he testified, over objections of defendant, that after he was hurt defendant had the plank tied, so that it could be moved without falling. Defendant objected, because such act of defendant, after the injury, was not admissible to show negligence of defendant before the injury. The court admitted the testimony, and defendant assigned error. The principle invoked by appellant is sacred, and is the law of this state, for the reason that improvement should not be discouraged. Railway Co. v. Hennessey, 12 S.W. Rep. 609, (decided at Tyler term, 1889;) Railway Co. v. McGowan, 73 Tex. 355, 11 S. W. Rep. 336. We cannot understand, however, how defendant could have been injured by this evidence of plaintiff when there were several disinterested witnesses permitted to testify to the same fact without objection.

It was in evidence that J. P. Mote was foreman of the gang in which plaintiff worked; that Mote came to him after he was hurt with a release to the company for plaintiff to sign, by which he was to discharge the company from all claim of damages by reason of his hurt; asked him to sign the same, and told him he would be discharged if he did not do so; that plaintiff refused to sign, and Mote said he had done all he could do; and that Mote further said that Berry had sent the release for plaintiff to sign. It was error to admit this testimony, as claimed by appellant's assignment of error, because it was not shown that Mote was the agent of defendant, or was authorized to take a release, and the statement that Berry had sent the paper for plaintiff to sign was hearsay.

Plaintiff also testified over defendant's objections, that after Mote left him he went to Berry, (who was superintendent of defendant's building and bridge department,) and spoke to him about the release, when Berry told him if he did not sign the release he could not go to the hospital, and he had telephoned Dr. Smith not to take him because he had refused to sign the release. Error is assigned to the ruling admitting the testimony. It was inadmissible until Berry testified that he was the proper person to take releases from injured employes if any were taken. But after he had so testified the testimony was rendered admissible on the issue that plaintiff's injuries were aggravated by the refusal to take him into the hospital, which plaintiff testified was true after his wound was dressed, though Berry denied the facts stated, and Dr. Smith also testified that he had not refused plaintiff admission into the hospital.

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