Bliss v. New York Cent. & H.R.r. Co.

• Decision Date: 20 January 1894
• Citation: 160 Mass. 447,36 N.E. 65
• Parties: BLISS v. NEW YORK CENT. & H.R.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 447

36 N.E. 65

BLISS v. NEW YORK CENT. & H.R.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 20, 1894

At the trial the plaintiff introduced evidence tending to prove that at the time of the accident he was a traveling salesman in the employof a firm in Boston; that on September 8, 1890, in the pursuit of his business, he left Troy for Albany upon a train of the defendant which started from Troy about half past 7 o'clock in the morning; that when a short distance outside of the railroad station in Troy, the car in which the plaintiff was riding was derailed and thrown against the wall of the tunnel through which it was then passing; that the plaintiff was thrown partly through a window of said car, and received the injuries complained of; that about an hour and a half after the accident he went to the office of the superintendent of the defendant at Albany. In direct examination, the plaintiff testified: "When I was conducted into the superintendent's office, a gentlemen sitting at the desk inquired the cost of my trousers and hat, and I replied 'Twelve dollars for the trousers, and five dollars for the hat.' He told me to take a seat, and produced two papers. He passed me one, saying, 'This is merely a form,' and the second he said was a receipt for the trousers and hat. I signed them, and proceeded. I did not read the papers. They were not read to me. I was rattled--dazed--at the time. I first knew of these papers when the trial commenced, yesterday. I first knew the contents of these papers in detail when I read them this morning." In cross-examination, the plaintiff testified "The first thing that was said by any one to me when I went into the superintendent's office was that the man at the desk inquired the cost of my trousers and hat. I cannot give his language. He did not ask whether I had been injured. I think he did not ask whether I had been in any accident. There was nothing the matter with my eyes at that time, so far as I know. There was nothing the matter with my eyes, to prevent me from seeing what was written on the papers, except that I was dazed. I was rattled. This did not prevent me from writing down an order for goods at noon on that day. After he asked me the cost of my trousers and hat, he presented the papers at once. (Papers shown.) There is none of that my writing, except the signature. That is my usual signature, as near as I could get it then. I had a difficulty in signing, on account of the bandage on my arm. I saw him sit down, and prepare the papers. I saw him write them, and then hand them to me. That is all that was said between us from the time I went in until he wrote these papers out. He inquired my name. I did not tell him on what train I had been injured, or that I had been in any accident. He inquired my place of business, and I told him. I did not tell him anything about the scratches on myself. I did not say anything about scratches on my arm. The scratch on my face was evident to be seen. I can't say that I said anything about the difficulty I had in writing. I did not read either of the papers. I signed them without reading them. I first learned that I had signed two papers that were releases of my personal claims at the commencement of this trial, yesterday. Mr. Williams, my counsel, told me it was probably a release. Mr. Williams has been my counsel from the beginning of the suit. I do not recollect which of the papers I signed first. I did not know that one was a printed form, and the other was a written bill. I did not look at it. There was light where I signed it. I looked at it enough to put my signature in the proper place, if it was not pointed out to me. I saw enough to select the proper place. I cannot say whether it was sealed." The plaintiff, being recalled after defendant's testimony was in, testified in direct examination: "When I entered the office of the superintendent, I did not open the conversation by stating that I was a passenger on the train that had been derailed. I did not show Mr. Bissell the cut over my eye, and tell him I had a cut on my arm. He did not state to me that I was settling in full. I did not tell him that my personal injuries amounted to nothing, and that I had no claim for them. When he presented the instrument to me, he did not state that it covered everything from the beginning of the world, or released the road from all claims. I was not in his office for half an hour. I was there about fifteen minutes, at the most. I do not remember the conductor coming into the office while I was there. I do not remember that I had any conversation with Mr. Finch. Mr. Bissell was the only gentleman I had any conversation with." In cross-examination, he testified: "I testify that these statements were not made, because, if they were, I should have remembered them. I was in a dazed condition. I feel sure I should remember any of those things. It is on that ground that I am willing to testify that conversation did not take place between me and them." The defendant introduced the testimony of Charles M. Bissell and Mr. Finch, which tended to show that Charles M. Bissell, the division superintendent of the defendant, and his clerk, Charles C. Finch, were in the office when Mr. Bliss entered it; that they had been previously informed by telegram of the happening of the accident; that they had not seen Mr. Bliss before, nor did they know that he had been in the accident; that when Mr. Bliss entered the office he began the conversation with Mr. Bissell, telling him that he had been a passenger on the train which had been derailed, and that in the accident his hat had been broken and his trousers torn; that he showed a slight cut over the eye, and referred to his arm being scratched, and glass having got into his hair and scalp; that he stated that he came to the office to make a settlement for his damages; that Mr. Bissell sent for the conductor, who came and identified Mr. Bliss as having been in the accident; that Mr. Bissell asked Mr. Bliss the amount of his claim, and that Mr. Bliss said his trousers cost $12 and his hat $5, and that he was willing to settle for $17; that Mr. Bissell then asked him about his personal injuries, and that Mr. Bliss said that they did not amount to anything, and that he made no claim for them; that they had some further conversation about the cost of his trousers and hat, and his position in the car at the time of the accident. Mr. Bissell then said that if any settlement was made it would have to include everything,--both the loss of his trousers and hat, and the personal injuries that he might have sustained; that Mr. Bliss said his personal injuries were of such a trifling character that he did not think he was entitled to any amount for them, and that he was willing to sign a release, releasing the company from all liability from any claim whatever that he might have, upon the payment of $17; that Mr. Bissell inquired his name and address, and the name of his firm, and then drew up the receipt and release referred to in the plaintiff's testimony, copies of which are annexed to these exceptions, marked "A" and "B;" that when the papers were drawn up a seal was placed upon the release, and Mr. Bissell explained to Mr. Bliss the contents of the papers, and stated that this was a settlement in full for his clothes and for personal injuries; that it was a settlement of all claims from the beginning of the world up to the present time; that he then handed the papers to Mr. Bliss, and told him they were for him to read and to sign; that Mr. Bliss took the papers, looked them over, and seemed to read them; that Mr. Bliss then signed the papers, and that Mr. Bissell and Mr. Finch witnessed them; that Mr. Bissell then paid Mr. Bliss the $17; that neither Mr. Bliss nor Mr. Finch noticed that Mr. Bliss' arm was bandaged, or that he had any difficulty in signing the release and receipt; that Mr. Bissell did not say to him that one of the papers was a receipt for his trousers and hat, and the other a mere form; that neither Mr. Bissell nor Mr. Finch knew that Mr. Bliss had been to see a physician; that Mr. Bliss did not appear to be bewildered or dazed; that he seemed to know perfectly what he was doing; that there was nothing out of the ordinary in his conduct, or different from the conduct of ordinary people coming into the office; that Mr. Bliss, in his conversation with Mr. Bissell, gave accurate answers to the questions put to him; that he did not show the slightest sign of incoherency in his talk, and that he acted as a bright, energetic young man naturally would; that he was in the office from 20 minutes to half an hour. It was admitted that the plaintiff was paid by the defendant $17 upon his signing the release and receipt. There was evidence tending to show that the plaintiff was of sufficient mental capacity to understand and appreciate the contents of the receipt and release at the time that he was in the office of the superintendent.

Dr George L. Walton, a physician, was called by the plaintiff, and his testimony tended to show that he was an expert. The plaintiff's counsel asked him the following question: "Now, assuming that the plaintiff had received this nervous shock which he has testified to, in the manner which he has testified, what would you say in regard to its effect upon his physical and mental condition; its probable or possible effect,-- immediate effect?" To this question the defendant objected. The court, Dr. Walton having heard the plaintiff testify, allowed the question, and the defendant excepted. The witness answered: "The effects might vary more or less. I could not...