WILLSON, C. J.
(after stating the facts as above).
[1,2]
Appellant requested the court to instruct the jury to return a verdict in its favor. The refusal of the request is complained of as error. In support of its complaint, appellant insists that, taking the view most favorable to appellee warranted by the testimony, he was a mere licensee while on its premises, and therefore that the only duty it owed to him was to refrain from intentionally injuring him while he was thereon, or, if it discovered him to be in a place of danger on account of cars moving from the elevator south on track 5, to use ordinary care to so manage such cars as to avoid injuring him. We think the testimony warranted a finding that appellee was not a mere licensee while engaged in inspecting and making light repairs of cars on track 5. It was shown that the railway company kept the track in repair for the operation of its cars and engines thereon, and not only was authorized, but was required, by the arrangement existing between it and appellant, to go on the track with its switch engines for the purpose of placing thereon cars of grain consigned to appellant, and for the purpose of removing such cars after they had been unloaded by appellant. It might very well be said, if there was nothing in the record showing that such a right had never been exercised by the railway company, that a right in it to inspect cars and make light repairs thereof while on the track should be implied from the duty it had assumed, for appellant’s benefit as well as its own, it may be observed, of removing cars, when unloaded, from the track; for, obviously, both the railway company and appellant, when they entéred into the arrangement which bound the former to remove unloaded cars from the track, must have contemplated that it might become absolutely necessary to inspect and repair cars before they could be removed. But it appears from the record that the railway company during a long period of time had exercised such a right, and that its inspectors, almost daily, without objection on the part of appellant, had inspected and made light repairs of cars on that track; and, further, that appellant’s superintendent in charge of the work at its elevator knew of the practice, at least so far as the inspecting of the cars was concerned. From such circumstances a jury would be warranted in finding that appellee was not a bare licensee while on appellant’s premises engaged in repairing the car, but that
he was there lawfully, In the discharge of a duty he owed to the railway company, the performance of which would inure to the benefit of appellant, also, and which it had agreed might be performed there. If appellee was rightfully upon appellant’s premises, it owed him the duty to exercise ordinary care to avoid injuring him while he was engaged in repairing the car. The testimony was sufficient, we think, to support a finding that it did not use such care. The jury might have inferred from the opportunity the testimony showed appellant to have had to know of it that it did know, not only that the railway company’s employes inspected empty cars on the track, but that they also made light repairs thereof while on the track. And, if such an inference was not permissible, we nevertheless would not be prepared to say that the testimony was not sufficient to support a finding of negligence on its part; for, if appellant did not know and should not be chargeable with knowledge of the fact that such repairs were habitually made by the railway company’s employes on the track, it did know, as testified to by its superintendent, that the railway company’s employes inspected cars while on the track in question. It is a matter of common knowledge that in inspecting railway cars persons engaged in that duty go between and under the cars they are inspecting, and so place themselves in positions of danger from collisions between cars they are inspecting and other cars which may be moved on the track. The testimony was uncontradicted that appellant permitted the colliding cars to move down from the elevator and strike the car appellee was under with great force, without doing anything to warn employes of the railway company who might be engaged in inspecting same of danger they might be in from the collision it knew would occur. Whether a reasonably prudent person under the circumstances would have acted as it did we think was a question for a jury, and not for the court, to determine.
[3, 4]
In support of its complaint, appellant further insists that its negligence, if any, was a remote cause, arid that negligence on the part of one Jones, who was associated with appellee in the work of inspecting and repairing the cars, was the proximate cause of the injury to appellee. Appellee as a witness testified as follows: “I do not know exactly where Jones was, but he jumped out on the other side of the car, and I supposed he was over there. I wanted him to be looking out for me for anything above that might happen to come down. He should have been out there on the lookout for me. He was supposed to be. I depended on him to be out there watching for me. I expected, if any car would drop down there, he would notify me, and that is what I depended upon. When I went in a dangerous place under a car, I depended on Jones giving me notice if any cars were dropped out to come down there. I expected him to notify me. He did not do so. I did not hear him do so. He was not standing there doing as he should have done, I don’t suppose, nor did he claim to have been. I knew that was a dangerous place to go under. As to knowing or not that the rules required me to keep somebody looking out, I will say there was not anything in the rules to that effect. We did. that among ourselves. We adopted that rule among ourselves. We had that rule among ourselves, that, if I went under a car, Jones should keep watch and should notify me. I did not know that these cars were frequently coming down there from the Rosenbaum elevator any more than Jones told me they were on No. 5. Jones had told me they did on No. 5. He told me they came down on No. 5. I suppose they used No. 5 for an unloading track for the elevator. I don’t think they were unloading 40 to 70 cars a day there on that track. I do not think so, because I do not think they handled that many cars. Jones did not tell me how many were coming down there. I had never seen any come down on No. 5, but I had on No. 6 and No. 4. I had not been at work there a great deal. * * * Probably I would not have gone under there if I had not had Jones there to keep a watchout for me. I did depend upon Jones. I don’t know as it was Jones’ fault. I could not say. 1-Ie didn’t tell me. I was expecting him to tell me; but I could not say, if I depended upon him, that his failure to tell me was the occasion of my getting hurt. I was expecting Jones to holler if anything came, and, if he had hollered, I would have got out. I did not hear him holler, and did not get out. I did not hear any one holler. I depended on Jones to holler or speak to me if any danger came, but I do not know as his failure to holler was the reason I did not get out. I could not say exactly what was the reason. I would have been out in about a minute, anyway. I just had about a minute’s work under there.” Jones testified that at the time the collision occurred he was at work on the inside of a car north of and adjoining the one appellee was under. It is clear, we think, that if Jones was negligent in failing to perform a duty he owed to appellee, and if appellant also was negligent, their negligence was concurrent, and that the negligence of the former was no answer to ap-pellee’s suit against the latter (Railway Co. v. Swinney, 34 Tex. Civ. App. 219, 78 S. W. 547; Railway Co. v. McLain, 80 Tex. 85, 15 S. W. 789; Railway Co. v. Bell, 5 Tex. Civ. App. 28, 23 S. W. 922; Railway Co. v. Mackney, 83 Tex. 410, 18 S. W. 949); unless, as is further contended, Jones’ negligence should be imputed to appellee. The theory upon which it is claimed that negligence of Jones should be imputed to appellee is that they were engaged in a joint enterprise
and occupied towards each other the relation of principal and agent. Abbitt v. Railway Co., 150 Ind. 498, 50 N. E. 729, decided by the Supreme Court of Indiana, cited by appellant, was a case very much like this one. There it appeared that Abbitt and one Lichstein worked together as car inspectors, and that it was the duty of one while the other was under a car to keep a lookout for other cars which might be moved on the track, and to warn him' of danger from a threatened collision between the car he was under and such other cars. Abbitt, while under a car inspecting it, was killed as the result of such a collision. There was testimony tending to show that Lichstein had failed to perform his duty to keep a lookout for and warn Abbitt of the
approach of the
colliding cars. The court said: “It may be affirmed as a correct doctrine, under the authorities, that if Abbitt and Lichstein were associated together in their work of ear inspection at the time of the accident, and if by any arrangement, understanding, or agreement between them, either express or implied, it became Lich-stein’s duty, when Abbitt was under a car upon the railroad track during the inspection or work performed by them, to look out for approaching trains or ears, and either signal them to stop or warn Abbitt of their approach, then, in this respect, and to this extent, at least, Lichstein might be said to have been serving the former, and under such circumstances the relation of principal and agent in this regard could be said to exist between them; and if Lichstein neglected to discharge the duty so imposed upon him, and thereby contributed to the accident in question, such negligence in legal contemplation would be the negligence of Abbitt, and justly imputable to him. Or, in other words, if, under the circumstances, at the time of the fatal accident, Abbitt attempted or undertook to exercise the care which the law exacted of him through the agency of Lichstein, then it would be incumbent upon the plaintiff in this action to show at the time of the accident freedom from contributory negligence on the part of Lichstein.” The value of the decision as authority is weakened by the fact that two of the five judges composing the court dissented, and in a strong opinion combatted the conclusion reached by the majority that the principle in question was applicable to the case. We have not been referred to, and have not found, a case decided by the courts of this state with facts like this one, where the principle invoked has been applied. In several such eases, distinguishable from this one on their facts, the principle has been recognized, however. Eor instance, in Railway Co. v. Kutac, 72 Tex. 643, 11 S. W. 127, where the plaintiff’s decedent while riding in a wagon with her husband and other parties was killed as the result of a collision at a point where the defendant’s railway crossed a public road, between the wagon and one of defendant’s locomotives, the defendant contended that negligence of the driver of the wagon should be imputed to the decedent, and that a recovery against it because of its negligence therefore should be denied. The contention was overruled on-the ground that the decedent was at the time a mere guest in the wagon, but in discussing the question made the court said: “Applied to private carriers, the rule is said to be that, if the relation of joint enterprise or of master and servant exists, then the negligence of one joint enterpriser or servant is imputable to the other joint enterpriser or to the master.” In Johnson v. Railway Co., 2 Tex. Civ. App. 142, 21 S. W. 276, the Kutac Case was cited as establishing in this state that the principle was applicable in such cases. In the Johnson Case plaintiff’s decedent, who was blind, was sitting in the rear end of a wagon leading a horse as the wagon, driven by his father, crossed the defendant’s track. The horse became frightened, and, pulling back, caused the decedent to fall from the wagon to the track, where he was run over and killed by one of defendant’s handcars then being operated thereupon. Decedent and his father were going in the wagon after water for their joint use, and also to water the horse decedent was leading, which -was their joint property. In an opinion reversing a judgment in favor of the defendant, with reference to the principle invoked here the Court of Civil Appeals said: “If the jury should find that deceased and his father were engaged in a joint undertaking, it is settled in this state that each would be responsible for the negligence of the other” — citing the Kutac Case, supra. In Garteiser v. Railway Co., 2 Tex. Civ. App. 236, 21 S.
W.
633, the plaintiff had been employed by one Heinemann, who had a contract with defendant to do the work, to assist in fencing its track. The plaintiff was injured as the result of a collision between one of the defendant’s trains and a handcar which had been furnished by the defendant to Heinemann for use while engaged in his work of fencing the track, and on which plaintiff in the discharge of his duty to his employer at the time was riding. It was insisted that negligence of Heinemann, who was riding with the plaintiff on the car, should be imputed to the plaintiff in favor of the defendant. The Court of Civil Appeals, with reference to the insistence, said: “The American doctrine, as settled by the great weight of authority, is that the negligence of another person, not participated in by the plaintiff, will not be attributed to him, unless he has some right of control over such person, or they are, on terms of equality, engaged in a joint enterprise”— citing the Kutac Case. The cases referred to are the only ones in this state to which we have been cited as supporting appel
lant’s contention. It will be noted that the ruling in the Johnson Case was based upon the Kutac Case, which was regarded by the Court of Civil Appeals as settling the doctrine to be in this state as it was stated to be in the Johnson Case; and it will be noted that the doctrine not only was not settled, as claimed, in the Kutac Case, but that it was not otherwise than tacitly approved. It also will be noted that the Ku-tac Case was relied upon by the court in the Garteiser Case as authority for saying that the doctrine was recognized in this state. In his work on Negligence, Judge Thompson says: “There is some small authority in support of the proposition that the negligence of one of two joint undertakers may be imputed to the other, the governing principle being that each is the agent of the other” — citing the Johnson and Abbitt Cases, supra, a Nebraska case and a decision of an inferior court in New York. 1 Thomp. Neg. § 506. In 2 Labatt, Mast. & Serv. § 482, it is said: “The right of action in cases where the action is brought against a stranger, and the defense is that the injury was partly caused by the negligence of the plaintiff’s own fellow servant, is usually discussed with reference to the doctrine of imputed negligence; the accepted theory of late years being that the defense in question is not a bar to the action, for the reason that the negligent servant is not the agent of the injured servant in such a sense that the latter can be made responsible for the defaults of the former.”
The writer of the note to Schultz v. Railway Co., 8 L. R. A. (N. S.) 597, where the authorities are collected, concludes the note by saying: “Associates in a joint enterprise are mutually answerable for each other’s conduct. If, therefore, one of them is negligent to the injury of his colleagues, the latter cannot recover of outsiders whose concurrent negligence united to produce such injuries. This is also a doctrine of general acceptation; but it must be said, however, that the courts manifest some disposition to exclude as many cases as possible from the category of joint enterprises, so that it is no easy task to determine whether or not a joint enterprise exists in any given case.” The disposition of the court referred to, when it is possible to do so to exclude from the operation of the rule, as it is ordinarily stated to be, cases which might be treated as within its letter, evidently is due to the fact that many such cases are, as’ we think this one is, entirely without its reason. Doubtless it is right to say that a person injured as the result of negligence on the part of one of several joint enterprisers while engaged in the prosecution of the enterprise shall have a right of action, not only against the negligent joint enterpriser, but also against his associates in the enterprise, who may not have been negligent; and doubtless it is right, also, to say that a person injured as the result of negligence of an agent while engaged in the performance of his principal’s business shall have a right of action against the principal, though he has not been negligent. The justification for so saying in such eases lies in the duty of the innocent joint en-terpriser in the one case and of the principal in the other, to so transact his business, or have it transacted, as not to injure innocent third persons. If, however, the effort is not to hold the joint enterprisers or principal liable to a third person for a wrong done him in the furtherance of such joint enterprisers’ or principal’s business, but is, as here, to hold the third person liable for a wrong he has done an innocent joint enterpriser or principal, the situation is different. To say, as we are asked to say, that the third person whose negligence has resulted in injury to the principal or joint enterpriser innocent of any wrong shall escape the consequences of his wrong, merely because the agent or another joint enterpriser was guilty of negligence which concurred with that of the third person in producing the wrong, we think would be unreasonable. To so hold would have the effect to relieve the wrongdoer of consequences of his wrong which should be visited upon him, and to visit same upon the innocent subject of his wrongful conduct. For here it is not pretended that appellee in relying upon Jones to keep a lookout and warn him was guilty of negligence. The contention is that Jones was negligent, and that because he was appellant should be relieved of the consequences — to appellee, not to Jones — of its negligence. No reason has been, and we think a satisfactory one cannot be, suggested why such a holding should be made. We are of the opinion, and so hold, that the facts of the case do not exclude it from the general rule, which has been stated to be that, “when one has been injured by the wrongful act of another, to which he has in no respect contributed, he is entitled to compensation in damages from the wrongdoer.” Fields, J., in Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 654. We do not think the conclusion reached is in conflict with any ruling made in the Kutac Case or in the Garteiser Case cited. So far as it may be in conflict with the ruling in the Johnson Case referred to, the explanation is that we refuse to follow it. Associate Justice Hodges is of the opinion that the negligence of Jones should be imputed to appellee, and dissents from the holding made to the contrary.
[5]
In the release set out in the statement it will be noted there is a recital that the consideration therefor was paid by the railway company “in-behalf of itself and other companies” whose lines it owned or operated, and that, by the terms thereof, it was to operate, not only in favor of the Chicago, Rock Island & Gulf Railway Company, but also in favor of all lines leased and operated by it. The contention is made that track 5
belonging to appellant was a line operated by said railway company, and therefore that the court should have construed the release as a discharge of appellant of any liability it had incurred to appellee, and for that reason should have instructed the jury to find for appellant. Appellee pleaded, and there was testimony to support the plea, that the sum paid to him by the railway company was not paid as a satisfaction in full of damages he claimed, but only as a satisfaction thereof in part, that the “real object,” quoting from the supplemental petition, “purpose, and intention of the said transaction and the said paper executed by him to the said railway company was that the same was simply to release the said railway company from any suit oñ his part growing out of said accident, and that the said money so paid to him was to be accepted by him in part satisfaction of his said claim, and that he should have and reserve to himself under the said settlement all his rights as against the said grain company.” He further pleaded that, so far as the release executed by him evidenced a contrary intent or purpose, it was the result of mistake or of a fraud practiced upon him by the railway company’s claim agent who drafted it. With reference to the release "the court instructed the jury as follows: “If you believe from a preponderance of the evidence that the railway company’s claim agent, Williams, offered to pay plaintiff the sum of $4,000 to release his claim as against the said railway company only, and if you further believe that the said claim agent did at said time represent to the plaintiff that he had no connection with the defendant grain company, and was representing alone the interests of the said railway company, and, further, that the said claim agent represented that the said agreement would not release the plaintiff’s claim or affect his rights as against the said grain company, and if you further believe that the plaintiff agreed to accept the said sum of $4,000 from the said claim agent for said purpose and upon said representations, and if you further believe that it was the agreement between the said parties at said time that the said written instrument should reserve the rights of the plaintiff as against the said grain company, if any he had, and that the plaintiff at the time he signed the said written instrument believed and understood that such clause or provision was contained therein, and if you further believe that the same was not contained therein, but was omitted therefrom, either by the mistake of said parties, if any, or by fraud, if any, on the part of the said claim agent in not so inserting said provision in said instrument, and if you further believe that the plaintiff would not have executed the said release had he known that the said provision was not contained therein, and if you further find and believe that it was the intention of the said parties that the said sum of $4,000 should not be accepted in full settlement of the plaintiff’s entire claim for damages growing out of the said accident, but was only intended as a part settlement thereof and for the purpose of releasing the plaintiff’s claim as against the said railway company only, and if you further believe that the plaintiff did not in fact accept $4,000 in full settlement of his entire claim for damages on account of said accident, then, if you so find and believe, you will find that the said release executed by the plaintiff to said railway company would not be available as a defense to the plaintiff’s suit against the said defendant grain company, and, if you so find, your verdict will be for plaintiff on this issue, save and except that in the event you should find for the plaintiff on the whole case that you will credit the total amount of damages, if any you find for the plaintiff, with the said sum of $4,000 so received by him from the said railway company. If you do not find for the plaintiff under the above instruction, then your verdict will be for the defendant on the said plea of release and settlement, irrespective of any other issues in the ease.” In El Paso & S. R. Ry. Co. v. Darr, 93 S. W. 169, the release of the plaintiff was to the G. H. & S. A. Railway Company as a joint tort-feasor. It was stipulated in the release that it should not affect any claim the releasor might have against any other company growing out of the accident; but it was further stipulated therein as follows: “Said sum is accepted by the undersigned in settlement for all damages, injuries, and disabilities which may hereafter result from said accident, as well as for those now known to have been caused thereby. It is expressly understood and agreed that said sum is paid and accepted, not only for time and wages lost, expenses incurred, and property destroyed, but also in full and final settlement of all claims of every nature caused by said accident.” It was contended that the instrument operated, not only to release the G. H. & S. A. Railway Company, but the El Paso & S. R. Railway Company also. The Court of Civil Appeals overruled the contention, and in the course of its opinion said that “parol evidence as to what was the intention of the parties to the release was clearly admissible.” Continuing, the court said: “Whenever it is admitted that parol evidence can be used to explain the intention of the. parties to a release of a joint wrongdoer, and that such intent will prevail, the doctrine that the release as to one wrongdoer acts as a release as to joint wrongdoers must of necessity fall to the ground, when the intention was not to release all of them.” The material difference between the release in that case and the one in this one is that in the one in that case, while it was recited therein that the sum paid the releasor was-“in full and final settlement of all claims of every nature caused by said accident,” it was stipulated that it
should not operate to affect any claim the releasor had' against any other company growing out of the accident. The Supreme Court refused a writ of error in that case, and in view of the holding thereby approved, that parol evidence is admissible to show the intention of the parties to such a release, we think the assignment attacking the action of the court in instructing the jury as set out, as well as other assignments relating to the release, should be overruled.
The record on this appeal consists of 615 pages of typewritten matter. Many other questions than those discussed are presented in a brief by appellant of 101 printed pages, replied to by a brief by appellee of 73 printed pages. Merely to state those questions and the contentions with reference to them would extend this opinion to an unreasonable length. We have considered all the assignments and the numerous propositions under them, and are of the opinion that no one Of them, when viewed in connection with the record, presents a reason why the judgment should be reversed. Therefore it is affirmed.