Porter v. United Railways Company of St. Louis
| Decision Date | 04 June 1912 |
| Citation | 148 S.W. 162,165 Mo.App. 619 |
| Parties | LUCY PORTER, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.
AFFIRMED.
STATEMENT.--Suit to recover damages for personal injuries suffered by plaintiff through the negligence of defendant's agents and servants in prematurely starting a car while she was in the act of alighting from it. Plaintiff had verdict and judgment for one thousand dollars and defendant has appealed.
There is no question on this appeal but that the plaintiff was injured through the negligence of defendant's servants as alleged. But two questions are presented: (1) whether, under the evidence, the release which plaintiff admits she signed must be taken and treated as a bar conclusive against her right to recover; (2) whether the evidence could support a recovery for loss of earnings. We will confine our statement to matters bearing on these questions. The case is here on plaintiff's evidence alone, the defendant having offered none.
Plaintiff is a negro woman, able to read and write, but inexperienced in business affairs, and at the time of her injury was about sixty years of age. The circumstances disclosed by her testimony may be stated as follows: About eight o'clock in the evening of June 23, 1906, she was in the act of alighting from defendant's car when it suddenly stopped and threw her violently to the street pavement, rendering her unconscious. When she came to her senses, she was on her feet, sick and upset, and not knowing where she was. She thinks, though vaguely, that the conductor asked her name and address and whether she was hurt. She stood for awhile to regain her faculties and then "hobbled" to her home two blocks away. Her face and hands were scratched, her glasses broken and her dress torn, her leg was bruised, her ankle sprained and knee swollen. On the next day, at plaintiff's request, her daughter wrote a letter to the defendant. The contents of this letter are not disclosed, but on cross-examination plaintiff stated that she caused it to be written for the purpose of having one of defendant's representatives call on her to ascertain her condition; also to pay her any money that she and they might agree on, if they agreed on any; that she knew she had a claim for the wrong done her and wanted to settle it. On June 25th, the day after the letter was written, and the second day after her fall, she was home, alone, sitting up, dressed, when a man knocked. She hobbled to the door, opened it, and in answer to his inquiry told him she was Lucy Porter, and asked him to come in so that she could sit down, as her leg was hurting very much. He came in and at her invitation took a seat. She sat in a rocking chair by the center table, but does not remember what chair he sat in. He asked her if she had been crippled and she said, "Yes, on a railroad." He asked her if she had sent the letter, showing it to her, and she told him her daughter had done so at her request. She showed him her bruised ankle and he told her that he was not a doctor, but would send her one. She testifies that she was suffering so and was in such a condition that she does not really know what he said concerning her injury; she does not remember telling about her glasses being broken or her clothes being spoiled. "He stayed such a short time." He asked her what she thought the company ought to do for her and she said that she did not know then, that she did not know how badly she was injured or what might be the result. He then did some writing and asked if there was anyone else in the house, saying that he would have to have some one witness "this;" that he was going to give her five dollars for a little medicine and such things as she might need. She told him no one else was there, that her daughter was at school. He then inquired as to there being a neighbor whom she knew and she suggested the Street family two doors away; said that he might get their daughter to come in. He volunteered to go and see, and did so, returning shortly with the neighbor's daughter, to whom he said Nothing was said about a settlement or release for injuries and plaintiff came to no agreement with him. He said he wanted her to sign "this." The paper was on the table before her and she simply reached over and signed it, just like she "would sign any receipt." She sat up to the table when she signed the paper, but does not remember how or with what she signed her name or that she got up to get pen and ink. She did not read it or know what she was signing, and did not ask him and he did not tell her what it was. She knew nothing more than that she was signing for the five dollars which he had said he would give her for medicine, and she did not think there were any questions to ask. In her condition she did not think of reading it. Though not out of her head or insane, she was sick and suffering terribly with her limb, in a "rack" of pain, her head was hurting her, she was suffering mentally and physically and did not understand what she was doing. When the claim agent went, he left a check for five dollars. A few days later she signed her name on the back of the check and her daughter went to the defendant's place and cashed it. The claim agent left no copy of what she signed, and she did not know she had signed a release until after she had filed a suit, when defendant set up the release in its answer. She dismissed the suit tendered back the amount received, the tender was rejected and she brought this second suit.
It appears from the evidence that, prior to her injuries, the plaintiff was a well-preserved woman, in splendid health, usually employed in private homes as a waitress or as a seamstress, and always able to perform her duties well. For some five weeks before her fall she was confined to her home, entirely unable to work. Her leg appears to have been permanently injured, and often, when she is walking, it gives way under her without warning and causes her to fall. As one of the witnesses who had known her for many years stated, she has become "a sort of a wreck." For at least three years prior to her injury her average weekly earnings had been at least as much as eight dollars a week but since her injuries she has not been able to follow her usual occupation as a waitress and has been unable to earn more than two dollars per week. This suit was filed nearly three years, and the trial occurred more than four years, after the date she received her injuries.
Judgment affirmed.
Boyle & Priest, R. E. Blodgett and Paul U. Farley for appellant.
(1) The court erred in overruling a peremptory instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff's case, because plaintiff admitted signing the release pleaded in defendant's answer, admitted that she could read and had an opportunity to read it and failed to introduce evidence sufficient to raise the issue of plaintiff's want of mental capacity to understand the nature and effect of her acts when she executed the release. Bennett v. Lumber Co., 116 Mo.App. 699; Zalotuchin v. Railroad, 127 Mo.App. 577; Railroad v. Polka, 124 S.W. 226; Osborne v. Railroad, 71 Neb. 180; Railroad v. Bryant, 9 Ohio Cir. Ct. 332; Railroad v. Heck, 147 F. 777; Wallace v. Railroad, 67 Iowa 547; Shaffer v. Calvin, 88 Md. 394; Wallace v. Skinner, 15 Wyo. 233. (2) Plaintiff's instruction No. 3 is erroneous in that it permits recovery for loss of earnings of plaintiff's labor, when there was no evidence introduced which fixed the amount of such alleged loss. Howorth v. Railroad, 94 Mo.App. 215.
Marion C. Early for respondent.
(1) The question whether a release of all claims for damages was fairly obtained by the party liable, and whether the party executing it knew and understood its contents, and knew she was releasing her right of action for damages, were for the jury. Its finding of fact is not open to review. Mullen v. Railroad, 127 Mass. 86; Railroad, 201 Ill. 152, 94 Am. St. Rep. 158; Bertrand v. Transit Co., 108 Mo.App. 70; Robertson v. Construction Co., ...
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