Vautrain v. St. Louis

• Decision Date: 13 April 1880
• Citation: 8 Mo.App. 538
• Parties: JOHN VAUTRAIN, Respondent, v. ST. LOUIS, IRON MOUNTAIN, AND SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

8 Mo.App. 538

JOHN VAUTRAIN, Respondent,

v.ST. LOUIS, IRON MOUNTAIN, AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 13, 1880.

1. Where, immediately preceding the injury complained of, section-hands employed by a railroad company dig away the earth around a switch-rod so as to leave a cavity, in consequence of which a brakeman, in the discharge of his duty in uncoupling cars, is injured, these section-hands will not be considered fellow-servants of the brakeman in such a sense as will relieve the company from liability for the injury, but their act will be taken to be the act of the company.

2. If, after the injury, the plaintiff receives money from the defendant, its return is not a condition precedent to a recovery, unless it be shown that it was paid under an agreement of settlement of the damages.

APPEAL from the St. Louis Circuit Court.

Affirmed.

THOROUGHMAN & PIKE, for the appellant: The plaintiff, having accepted money in settlement of his claim, must refund the same and rescind the agreement before he is entitled to sue.-- Jarrett v. Morton, 44 Mo. 277. The instruction is fatally defective, as one essential element in its definition of negligence is omitted--that of notice, either actual or constructive.-- Lewis v. Railroad Co, 59 Mo. 501; McGowan v. Railroad Co., 61 Mo. 532; Devany v. Iron Works, 4 Mo. App. 243; Holmes v. Clark, 6 Hurl. & N. 349.

A. R. TAYLOR, for the respondent: The plaintiff was under no obligation to return money paid him, as he supposed, as wages.--2 Thomp. on Neg. 1026; Railroad Co. v. Welch, 52 Ill. 187; Butler v. Regents, 32 Wis. 125. ““““One who signs a release or acquittance without knowing its contents is not bound by it.”-- Schultz v. Railroad Co., 44 Wis. 638; Railroad Co. v. Doyle, 18 Kan. 59. That the plaintiff was injured through the negligence of persons intrusted by the defendant to keep its tracks in repair renders the defendant liable.-- Lewis v. Railroad Co., 59 Mo. 495. There was no question of notice in this case.-- Porter v. Railroad Co., 60 Mo. 160.

HAYDEN, J., delivered the opinion of the court.

This is an action to recover damages for injuries received by the plaintiff while engaged, as a brakeman, in uncoupling cars in the defendant's yard in St. Louis. The cars were moving slowly, and the plaintiff, as usual in uncoupling, had stepped on the track between two of them to withdraw the pin. The plaintiff's case is, that at the point in the track where, to do his duty, he was then obliged to walk, as the cars moved, the company's road-bed was in bad order; that certain switch-rods, which are the iron rods used to connect the movable rails, crossed the track there, and that the track-clearers of the defendant, shortly before, had made a hole or cavity under one of these switch-rods, in which the plaintiff's foot caught as he moved between the cars; that, as his foot thus caught in the hole, the switchbar above pressed on his instep and so fastened his foot that he could not release it in time to get out of the way of the moving cars; that in consequence he was knocked down by the car and under it, was dragged along, his right arm so crushed as to render amputation necessary at the shoulder, and his foot crushed. The answer denied the allegations of the petition, and set up that the injuries were caused by the plaintiff's misconduct; and, further, that the plaintiff had received over $200, in full satisfaction of this demand, and had by several releases discharged defendant from any liability. The reply denied any release, and alleged the papers were procured by fraud and deceit. There was judgment for the plaintiff for $6,000.

Into the details of the testimony--except upon one point, in regard to which the defendant claims there is no evidence--it is not necessary to go, as many questions which the defendant now argues resolve themselves into matters touching the weight of evidence and the credibility of witnesses. Thus, whether the foot of the plaintiff caught in the frog, which was a permanent part of the track, and the peculiarity of which the plaintiff, who had been in the employ of the company for several years, well knew, was a question which was directly put to the jury by an instruction of the court, who told the jury that if the injury was caused by the plaintiff's foot being caught in the frog, instead of under the switch, the plaintiff could not recover. The finding upon this and upon other essential issues shows that, in spite of contradictions and confusions, real or apparent, which the testimony of the plaintiff and the witness Bournell displays, the jury believed these witnesses rather than those of the defendant. So, in regard to the matter of the release and acquittance, it is not complained that the instructions by which the jury were directed were erroneous, except as to the point which is noticed below. The jury have found that the plaintiff was deceived as to the character of these papers, that he did not know they were releases of this cause of action, and that the papers were procured by false representations. Into such questions as these it is impossible to go, unless the rule is to be discarded that, where there is a decided conflict of evidence, the question is for the...