Purdy v. Rome

Citation26 N.E. 255,125 N.Y. 209
CourtNew York Court of Appeals
Decision Date13 January 1891
PartiesPURDY v. ROME, W. & O. R. CO.

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, fourth department.

Edmund B. Wynn, for appellant.

George S. Klock, for respondent.

PECKHAM, J.

After careful consideration of all the evidence in this case, we are brought to the conclusion that there was sufficient to go to the jury upon the two questions of the negligence of the defendant and the freedom of the plaintiff from any contributory negligence. There is one other point made by the defendant, which arises upon the so-called ‘release’ put in evidence by it, and in which the plaintiff agrees and covenants that the company shall in no case by liable for any damage to the person or property of the plaintiff by reason of its own negligence or that of defendant's agents or servants. Some question was made on the trial and by the evidence of plaintiff as to whether the release, when he signed it, was filled up, and thereupon became a perfect instrument, duly executed in form and substance. It is now claimed that the defendant did not ask, in proper form and time, to go to the jury upon that question, but waived it by its motion for a nonsuit, and hence it cannot now be heard to insist that it was for the jury to pass upon as a fact. We think, however, that if such a question were material, there was a sufficient request to have it submitted to the jury, and if there were error in the decision the exception was valid. In deciding that the release was no bar, the court assumed that it had been formally executed as a complete instrument, and hence took no account of the plaintiff's evidence on the subject. It is proper for us to make the same assumption, and, if we then find the release was no bar to the maintenance of the action, the question of fact upon which defendant asked to go to the jury becomes of no moment. The plaintiff had been in the employment of the defendant for a number of years prior to the execution of the paper. At that particular time he was engaged in performing the duties of a baggageman on a passenger train. It does not appear that he was, when first employed, engaged for any particular time, nor for any particular service. It was a general employment, and he was subject to the orders of the company. He was working for it as a baggageman in 1879; and continued as such up to and after the execution of the paper, in August, 1881. The assistant superintendent of the defendant, who was the man that procured the execution of the paper, said: ‘There was no compulsion about signing the contract, nor any new consideration for it. He simply signed the contract, and the defendant kept on employing the plaintiff as a...

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10 cases
  • Potter v. Detroit, G.H. & M. Ry. Co.
    • United States
    • Michigan Supreme Court
    • December 12, 1899
    ... ... time whatever. There was no consideration for the release ... The case is, in this respect, very similar to Purdy v ... Railroad Co., 125 N.Y. 209, 26 N.E. 255. It is ... unnecessary to review the instructions relating to this ... feature of the case. A ... ...
  • Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Mahoney
    • United States
    • Indiana Supreme Court
    • April 22, 1897
    ... ... Illinois Central R. R. Co., 83 Ill. 273; ... Jacksonville, etc., R. W. Co. v ... Southworth, 135 Ill. 250, 25 N.E. 1093; ... Purdy v. Rome, etc. R. R. Co., 125 N.Y ... 209, 26 N.E. 255; [148 Ind. 200] Maney v ... Chicago, etc., R. R. Co., 49 Ill.App. 105; ... Newport, etc., ... ...
  • Pittsburgh, C., C. & St. L. Ry. Co. v. Mahony
    • United States
    • Indiana Supreme Court
    • April 22, 1897
    ...1025; 1 Cent. Law J. 465;Arnold v. Railroad Co., 83 Ill. 273; Railroad Co. v. Southworth, 135 Ill. 250, 25 N. E. 1093;Purdy v. Railroad Co., 125 N. Y. 209, 26 N. E. 255;Maney v. Railway Co., 49 Ill. App. 105; Railroad Co. v. Eifort, 15 Ky. Law Rep. 600;Runt v. Herring (Com. Pl.) 21 N. Y. Su......
  • Galveston, H. & S. A. Ry. Co. v. Pigott
    • United States
    • Texas Court of Appeals
    • February 10, 1909
    ...360; Hissong v. R. R., 91 Ala. 514, 8 South. 776; Kansas, etc., Ry. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630; Purdy v. Railroad, 125 N. Y. 209, 26 N. E. 255, 21 Am. St. Rep. 736; Railway v. Spangler, 44 Ohio St. 471, 8 N. E. 467, 58 Am. Rep. 833; Memphis, etc., Ry. v. Jones, 2 Head (Tenn.) 5......
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