Albrecht v. Milwaukee & S. Ry. Co.

• Decision Date: 23 February 1894
• Citation: 58 N.W. 72,87 Wis. 105
• Parties: ALBRECHT v. MILWAUKEE & S. RY. CO.
• Court: Wisconsin Supreme Court

87 Wis. 105

58 N.W. 72

ALBRECHT

v.MILWAUKEE & S. RY. CO.

Supreme Court of Wisconsin.

Feb. 23, 1894.

Appeal from circuit court, Waukesha county; A. Scott Sloan, Judge.

Action by Frederick Albrecht against the Milwaukee & Superior Railway Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought to recover damages sustained by the plaintiff, an employe of the defendant, as brakeman, in consequence of a collision, caused, as it is alleged, by running a switch engine out from a spur track upon the main track when the regular, expected, and approaching train was within 25 rods of the switch and in plain sight, and that the injury was the result of the carelessness and negligence of the engineer in charge of the switch engine. No other charge of negligence was made in the complaint against any officer or employe of the defendant. The answer denied the charge of negligence, and, as a separate defense, alleged, in substance, that, about 10 days after the accident, the plaintiff, for a valuable consideration, executed and delivered a release under seal, whereby he released and discharged the defendant, its agents and employes, from any and all liability by reason of his said injuries. The defendant's road is about 12 miles in length, and runs from Granville, in Milwaukee county, to Sussex, in Waukesha county, through a stone-quarry region, and there are quite a number of spur tracks, diverging from various points on the main line to the several quarries in near proximity to the road. The switch engine in question had been to the Peter Kiefer quarry, and had returned to within a short distance of the main line near Lannon station, and was waiting for the mixed train to pass, so it could proceed to the station. The engineer of the switch engine was under the direction and control of one Hickson, and under his express orders ran the engine out upon the main line at the time the collision occurred. At the trial considerable evidence was given to show that Hickson was yard master, and that he had charge of the switches,--that he was called yard master; but the testimony in this respect was conflicting, and there was evidence tending to show that he was only a foreman or boss or switchman. The principal effort on the part of the plaintiff at the trial was to show that his injuries were caused by the negligence of Hickson, as yard master. The court charged the jury, as matter of law, on the facts of the case, that Hickson was in such relation to the defendant, or to the running of its railroad, that his negligence was the negligence of the defendant, and directed the jury to find that the plaintiff's injury was caused by the defendant's negligence. The defendant gave in evidence the release relied on, and proof that the plaintiff signed it, and had not paid back the money,--$225,--paid under it. The plaintiff testified, on this subject, that, at the time the paper was signed, the witnesses Blair and Burch came to his house and asked him if he was in need of money; said they were going to pay him four months' wages, at $1.50 per day, and some for doctor's bill; that they showed him a piece of paper, and wanted him to sign it; that it was a receipt for the money; that he didn't read the paper, that he couldn't read, and didn't know whether they read it to him or not; that he didn't understand the contents of the paper, and didn't know that it discharged or released the company from all obligation to pay him for his injuries; and that if he had so known he would not have signed it. Afterwards, he drew his wages for September. the month in which he was injured, which had not been paid, and the company subsequently paid him another month's wages. These payments were, it seems, no part of the $225 paid when the release was signed. He testified that he was a German, and did not know the meaning of “liability,” or “release,” or “discharge,” or “consideration,” or “employes,” or “employer;” that these words were not explained to him by Blair and Burch; that he did not know at the present time what the paper meant. Being asked, “If you ever knew that instrument discharged or released or relieved the company from paying you for the injury sustained, would you have signed it?” he answered, “No.” The witnesses Blair and Burch testified, in substance, that they called on the plaintiff at his home, and asked if he wanted any money. That they figured it over about how long he would probably be laid up, and that he ought to be around in four months. “Told him we thought, if we allowed him wages for that time, and paid his doctor's bill, it was about what he ought to have, and he said he thought so, too. Wages were figured at $160, and doctor's bill at $65.” Burch drew up a release and handed it to him to sign, and he and Blair witnessed it. “The substance of what was said was that it was a settlement. The release was read to him slowly. There was no explanation of its terms. He didn't make any complaint to the effect that he didn't understand the paper. He was in bed, bolstered up a little. We were there thirty or forty minutes.” In rebuttal, the plaintiff was asked if Burch read the paper over to him in the house, and if he said he was satisfied with that settlement, and he answered: “No, sir, I didn't know; he didn't say nothing about a settlement.” The court...