Panhandle & S. F. Ry. Co. v. Van Arsdel
Panhandle & S. F. Ry. Co. v. Van Arsdel
Opinion of the Court
This suit was brought by ap-pellee, Van Arsdel, to recover damages for personal injuries sustained by him while in the service of the appellant railway company. Plaintiff was employed by the railway company as a trucker, and was engaged in unloading freight from one car through another car t'o the unloading platform when the running board between the two ears slipped, as plaintiff was moving his truck across it, causing him to fall and sustain the injuries made the basis of the suit. The essence of the negligence alleged and established by the verdict of the jury was in the failure of defendant’s foreman in charge of the work to see that the running board was blocked before directing plaintiff to move his truck over it. The fact of the fall, that it was caused by the slipping of the unblocked running board, and that plaintiff was injured thereby, is not in dispute. The defendant contended that the plaintiff knew that the running board was unblocked and unsafe for use in that condition and the questions raised on this appeal, with one exception, grow out of the trial of defendant’s pleas of assumed risk and contributory negligence.
The first proposition is that the court should have granted appellant’s request for a peremptory instruction because the evidence conclusively establishes the defense of assumed risk and plaintiff’s own negligence. The evidence shows that the plaintiff and several other truckers and loaders, working under and accompanied by a foreman, -were at the time proceeding to unload a car of freight. The plaintiff and another workman placed a runhing board, made of sheet iron or steel, in position between the car from which the freight was to be unloaded and another car, through which it was to be taken. It was against the rules of the company to unload freight over a running board without first blocking it. Plaintiff knew this, and that it was dangerous to work over an unblocked running board. The blocking was done by inserting bolts in holes near 'the four corners of the running board, which bolts would extend through the board and project near the sides of the car or platform on which the board rested. The bolts were dropped into the holes with only the rounded head projecting above the surface of the board, and, while they could be seen by looking closely, their absence would not be apparent at a casual glance. When this running board was put down on this occasion the other workman, with plaintiff’s knowledge and with the knowledge of the foreman, went to some other place on the platform to get *922 the bolts with which to block the board. Plaintiff proceeded to get his truck, and testified, on the trial that, as he was entering tlie car with the truck, he saw the other man coming with the bolts. He was engaged for a few minutes in loading the truck. The foreman was in the car checking the loads and supervising the work. When the truck was loaded the foreman gave the plaintiff a check slip and told him to go ahead. Plaintiff, pulling the truck, stepped on the running board, which slipped off its resting place on the car, and plaintiff fell to the ground, striking his face and head against the car sill as he fell. Plaintiff testified that he did not know that the board had not been blocked, but supposed that this had been done while he was loading the truck. Several- witnesses testified that plaintiff, immediately after the injury, and afterwards, said that no one was to blame but himself; that he knew that the bolts were not in the bo.ard, but forgot' it before he started across with the load.
*923
“I knew Swafford had gone after the bolts to block the board, but never thought to look to see if he had gotten back and placed tfiem in the board. * * * I do not hold any one at fault for my injury, and same was caused simply by an accident.”
The defendant when plaintiff was on the stand, identified this instrument, questioned him about it, and offered it in evidence. Plaintiff, on redirect examination, was permitted to testify that he made the statement in the writing in response to questions propounded by the claim agent, _ and over defendant’s objections testified in part as follows:
“He (the claim agent) asked me if I blamed any one with the accident, and I told him I didn’t say that I did, but thought Henry Swaf-ford had ought to be responsible over these boards, or told him he was responsible for the boards that he was using at the time. He was the boss over the men, and I thought that he should see that everything was all right.”
The fifth proposition presents a claim of error in the-admission of the testimony just quoted. The parol evidence rule, of course, has no application to such an instrument as that signed by the plaintiff. It was introduced to impeach plaintiff’s testimony given at the trial. He was, under the circumstances, entitled to state all that passed between him and the claim agent' at the time in explanation thereof, Smith v. Traders’ National Bank, 82 Tex. 368, 17 S. W. 783 (point not in syllabus); M., K. & T. Ry. Co. v. Walden (Tex. Civ. App.) 46 S. W. 87; P. & N. T. Ry. Co. v. Winkler (Tex. Civ. App.) 179 S. W. 691 (16); Mason v. M., K. & T. Ry. Co. (Tex. Civ. App.) 151 S. W. 350 (3); Jones on Evidence (Horwitz) § 852.
“Shortly after the accident Mr. Van Arsdel and myself had a conversation about the matter.. He said that he did not know the board was not bolted; that when he was given the check he understood that he was expected to go with his truck; I don’t remember any one else being present when he so stated.”
Robinson was one of the truckers working with plaintiff at the time he was injured. Two other witnesses, colaborers of plaintiff, had testified in behalf of defendant' to statements made by the plaintiff immediately after the injury. One witness, L. H. Fuqua (one of the workmen) testified:
“Mr. Van Arsdel stated to me, just, after the accident, in the presence of J. H. Swafford and M. J. Robinson, that he knew that Mr. Swaf-ford had gone after the bolts, and he had forgot about the old man not coming back, and he was in a hurry,” etc.
We believe that Robinson’s testimony was admissible in contradiction or explanation of the testimony given by A. B. Swafford and B. H. Fuqua. While it does not' positively appear that Robinson referred to the same conversation testified about by these witnesses, it may be reasonably concluded that the witnesses were all referring to the same conversation, particularly as Fuqua had expressly stated' that Robinson was present when plaintiff made the statement which he testified about. There are some authorities which would sustain the admission of this evidence even if it related to an entirely different conversation at a different time. Mason v. M., K. & T. Ry. Co. (Tex. Civ. App.) 151 S. W. 350; G. C. & S. F. Ry. Co. v. Franklin (Tex. Civ. App.) 155 S. W. 553. A writ ot error was granted in the case last cited. Without taking the time to argue the question out to a conclusion, we doubt whether the'admission of the testimony may be sustained on this last supposition. See H. & T. C. Ry. Oo. v. Fox, 106 Tex. 317, 166 S. W. 693; Ætna Insurance Co. v. Eastman, 95 Tex. 34, 64 S. W. 863; 28 R. C. L. pp. 654-656.
Affirmed.
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