Full opinion text
LEVY, J. (after stating the facts as above). Appellant plead in bar of the suit that ap-pellee had executed a valid release against all damages, and claims by proper assignments that under the evidence the release is binding and precludes any recovery. The court ruled that the release was without consideration and invalid. There appear in the evidence two releases. One is dated in February, and the other in April, 1907. It is admitted, though, that the second one is in the place of the first one, and the two are identically the same, and-are regarded as being one and the same release relied on. The release purports to settle tlie claim of appellee for the injuries in suit, and in consideration of $1 paid for the settlement. It goes further, and stipulates: “Said sum of one dollar being in full satisfaction of any and all claims and demands that I may have against the said Texas & Pacific Railway Company for the injuries received, as aforesaid, or for any other injuries that might arise, accrue, or result from injuries received in said accident, whether known at this time or that might hereafter develop, this settlement to have the same force and effect as if I had sued the Texas & Pacific Railway Company and obtained a judgment against it for the amount of this compromise. It is further expressly agreed and understood that the Texas & Pacific Railway Company is not and does not agree to bind itself to employ me, or for any time or in any capacity whatever, as a part of this settlement, but that we each remain free to contract with each other just as if this transaction had not occurred. It is further understood and agreed that all promises and agreements respecting or in any wise relating to the subject hereof are fully expressed herein and no others are made to exist. This instrument is executed in duplicate.” Referring to the evidence, it is conclusively shown, we think, that the sole consideration for the settlement and release was the sum of $1, and that such sum has never been paid. Appellant admits that it was not paid, or that it was even contemplated that it was to be paid. The instrument, as the evidence, declares that there was no other consideration or agreement between the parties than those expressed in the written agreement, which was $1. A release without consideration does not defeat a recovery, and the court did not err. See Ry. Co. v. Smith, 98 Tex. 47, 81 S. W. 22, 66 L. R. A. 741, 107 Am. St. Rep. 607. The first, second, and third assignments are overruled. The court in the main charge instructed the jury that appellee could only recover in case the foreman directed Woolery to butt the shafting out of the pulley with the particular piece of timber that was used and pointed out by the foreman to be used, and that the foreman directed appellee to remove the shafting in the precise way it was done, and authorized a finding for appellant if the foreman in this respect was not negligent. A full and affirmative charge on contributory negligence as to the manner of appellee’s holding the shafting was given. There can be no pretense in the evidence that the pulley could have been held in any other manner by' appellee than the way he did hold it; and there was no error, we think, in refusing special charges complained of in the sixth, ninth, tenth, and eleventh assignments. There are no propositions under these assignments pointing out particular errors. The pleadings, raised the issue of negligence upon the part of appellant through its foreman and negligence of a fellow servant. The evidence raises the issue of negligence of the master combined with the negligence of appellee’s fellow servant, Woolery. Appellant is liable for its own negligence combined with the negligence of a fellow servant. Ry. Co. v. Zapp, 49 S. W. 673; Ry. Co. v. Bonatz, 48 S. W. 767; Ry. Co. v. Kizziah, 86 Tex. 81, 23 S. W. 578. The court therefore did not err as complained of in the twelfth assignment. The thirteenth assignment complains of the refusal to grant a new trial because the verdict is contrary to the law and evidence. The case, we think, was properly submitted to the jury, and the evidence warrants the verdict. The judgment was ordered affirmed.