Ballenger v. Southern R. Co.

• Decision Date: 23 December 1916
• Docket Number: 9561.
• Citation: 90 S.E. 1019,106 S.C. 200
• Parties: BALLENGER v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

90 S.E. 1019

106 S.C. 200

BALLENGER v. SOUTHERN RY. CO.

No. 9561.

Supreme Court of South Carolina

December 23, 1916

Appeal from Common Pleas Circuit Court of Spartanburg County; John S. Wilson, Judge.

Action by Fred B. Ballenger against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Gwynn & Hannon, of Spartanburg, for appellant.

Sanders & De Pass, of Spartanburg, for respondent.

GARY C.J.

This is an action for damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendant; and the appeal is from an order directing a verdict in favor of the defendant.

The allegations of the complaint, material to the questions involved, are as follows: That on or about the 23d of February, 1914, plaintiff was in the employ of the defendant in the capacity of a brakeman on a local freight train, which was running from Spartanburg Junction, S. C., to Asheville N. C., engaged in interstate commerce. That at, or near Arden, N. C., plaintiff was ordered to throw a jack switch as was his duty to do, so that said train might come in on siding. While engaged in throwing said jack switch in the usual and customary way, the block on switch lever struck plaintiff's right foot, and broke the bones and wounded the tendons so much that he was laid off from work for several months and his right foot was permanently injured. That said injuries complained of above were directly due to the willfulness, wantonness, negligence and carelessness of defendant in the following particulars, to wit: In not furnishing the plaintiff a safe and suitable appliance, in that the jack switch was old, worn, rusty, and out of date, and not in working order; in not keeping the appliance in safe and suitable repair, so that said switch might be thrown with ease and haste; and in not keeping said switch geared and in proper working order. The defendant denied the allegations of negligence and willfulness, set up assumption of risk as a defense, and alleged:

"That before commencing this action, the plaintiff, for a valuable consideration, released the defendant company from any liability on account of any injury which he may have received, and defendant pleads the same as a bar to this action."

At the close of the testimony, the defendant made a motion for the direction of a verdict, on the grounds: First, that the plaintiff had voluntarily released the defendant from all liability; second, that the risk was one which he had assumed; and, third, that the testimony fails to show any negligence on the part of the defendant. His honor the presiding judge sustained the motion, on the ground that the plaintiff had released the defendant from all liability.

The appellant's attorneys have argued the exceptions under two heads, the first of which is whether the release is a bar to the action, under the federal Employers' Liability Act. Section 5 of that act, as re-enacted in 1908, is as follows:

"Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void: Provided, that in any action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employé or the person entitled thereto on account of the injury or death for which said action was brought."

The provision of the statute, that a contract, the purpose and intent of which is to enable a common carrier to exempt itself from liability created by the act, etc., has reference to the contracts made by parties prior to the injury. But there is no provision in the statute preventing the parties from agreeing upon the terms of settlement after the cause of action has arisen out of the injury. In the case under consideration, it is not contended that the parties had entered into a contract before the plaintiff was injured.

The next question is whether there was any testimony tending to show fraud or undue influence.

The release bears date the 9th of March, 1914, and recited that it was made "for and in consideration of the agreement of the Southern Railway Company to pay to the above-named payee the sum of one dollar." On the same day, the plaintiff executed a receipt containing these words:

"Received, Asheville, N.C. 3--9--1914, of the treasurer of the Southern Railway Company, one dollar in full for above account."

The plaintiff testified as follows:

"Q. Didn't you sign a paper when you went back to work? A. Yes, sir; I signed a paper. Q. Who asked you to sign it? A. The superintendent of the road told me I would have to sign that paper. Q. Which superintendent? A. Of that division. Q. What was his name? A. Superintendent Hodges. And I told him that I had lost a lot of time and suffered a lot, and I wanted to know what disposition that he felt like he could make of this injury. Q. That was after you had signed this release or before? A. That was before. And he told me, he says, 'The only thing you can do, if you want to go back to work, is to sign up and go back to work.' Q. If you wanted to go back to work, to sign the release and go back to work, and then you went and signed it and went back to work? A. I had to do that. * * * I was hard pressed for money and had to go back to work, and the only way I could get back was to sign that release. I did not read it, and there was nothing said about paying any money before I signed it. Q. Why did you sign that release? A. Because Dr. Prichard told me my foot was all right, and that I could go back to work. Q. Did he represent to you that it was well? A. He did. Q. Did you ask him for a discharge? A. I did. He said it was not necessary to give me a doctor's dismissal certificate; that he would simply phone down to the office that I was all right. I went to the office, and they accepted me, and shortly afterwards I went out on a run. I saw I could not work. I saw that my foot was not in the proper condition to do that kind of work, as it had been represented to me. He was no doubt mistaken about the matter; but my foot, I found, was not in a condition to do that kind of work. Q. Did you rely upon his statement? A. Yes, sir. Q. Did you go back to him after you made this run? A. Yes, sir. Q. Go back to Dr. Prichard? A. Yes, sir. Q. What did he say then with regard to your foot? A. He told me that my foot was really hurt worse than he at first thought that it was. Q. What did he advise you to do? A. He advised me to get light work. * * *"

Cross-examination:

"Q. When Dr. Prichard was talking to you, did he say one single word about your signing a paper and going back to work; don't you know that he did not; that he said nothing about release and knew nothing about any paper at all; that he was just expressing his opinion to you about the condition of your foot--his medical opinion? A. I took his word for it, Mr. Sanders. Q. Answer my question, Mr. Ballenger, wasn't he just expressing to you his opinion about your foot? A. Well, he told me that the foot was

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