Carlson v. Northern P. Ry. Co.

• Decision Date: 16 June 1928
• Docket Number: 6312.
• Citation: 268 P. 549,82 Mont. 559
• Parties: CARLSON v. NORTHERN PAC. RY. CO.
• Court: Montana Supreme Court

268 P. 549

82 Mont. 559

CARLSON v. NORTHERN PAC. RY. CO.

No. 6312.

Supreme Court of Montana

June 16, 1928

As Amended July 2, 1928.

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by Justus Carlson against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instruction.

Walker & Walker, of Butte, and Gunn, Rasch & Hall, of Helena, for appellant.

Maury Brown & Maury, of Butte, for respondent.

STARK J.

Claiming that he had been injured while in the employ of the defendant as a section hand, and while engaged in unloading rails from a push car, through the negligence of fellow employees, the plaintiff brought this suit to recover damages alleged to have resulted therefrom. At the conclusion of the trial, the plaintiff was given judgment. Defendant moved for a new trial, which was denied, and has appealed from the judgment. A bill of exceptions embodying the proceedings had at the trial is embraced in the transcript.

At the threshold of the case we are confronted by a motion on the part of the plaintiff to strike the bill of exceptions from the record, on the ground that it was not settled and signed in the manner prescribed by law. This motion has been considered, and we deem it without merit, for which reason it is overruled.

The plaintiff testified that on May 24, 1927, with other employees of the defendant, he was engaged in unloading railway rails from a push car on the defendant's tracks at Montana street in the city of Butte; that one of the rails unloaded was curved or crooked, and in taking it from the car three men had hold of it at one end, while the plaintiff and a man named Steve had hold of the other; that the section foreman or boss stood by the end of the rail which was being held by the three men, watching the action. He said that in unloading rails it was customary, when the men handling a rail had reached the place where it was to be deposited, for the foreman or man in charge to give a signal or command so that all men could let go at the same time; that such signal or command was not given in this instance, but that, when the men had carried the rail about 5 feet from the car, Steve let go of the same without any warning and without directions from the foreman in charge; that the weight of the rail took him down almost to the ground, and, as it slipped out of his hands, it "struck me on the side and hit me down the leg here; it struck me in here and here." He further testified that he worked the rest of the day, but was shaky and his left leg was numb; that he had pain in his back, side, hip, and left leg, but continued to work until about noon on the 27th day of May, at which time he obtained an order from the section foreman to go to Dr. Kistler, a physician designated by the defendant, who examined him, gave him some pills and linament, and said, "That will fix you all right;" that he paid a second visit to Dr. Kistler on May 31st and received some other medicine.

The plaintiff returned to work for the defendant on May 31st, or June 1st, and, according to his statement, after he had been working about three or four days, the section foreman, Swanson, handed him an envelope containing a document, and said, "Here is a paper to fill out." This paper was a form for an employee's report of an accident sustained by him, containing various blank spaces to be filled in, showing the nature, extent, and course of injuries he had sustained, and, at the bottom, immediately preceding the place for signature contained the following:

"I do not hold the railway responsible for these injuries, and I hereby agree that in consideration of being allowed to resume my work in the service of the railway I hereby fully release said railway, its successors and assigns, from all claims for damages for said injuries of every kind and description, and declare that all rights and claims arising therefrom or thereby are fully paid and discharged. It is expressly understood that there is no agreement on the part of the railway, or any of its representatives, to continue said employment for any length of time, but I am to be simply reinstated and allowed to work under the same circumstances as before the accident above described."

There is some controversy as to just when this paper was handed to plaintiff, but as it is admitted that the form was not filled out and signed until June 3d, it is apparent from what he said his contention is that it was on that date. He testified that he then walked over to Swanson's house, asked him to fill out the blank; that Swanson told him to sign it and he would fill in the blank spaces later on; that he then signed his name at the indicated place, and the paper was left with Swanson. Plaintiff first testified that he could not read the English language, but later qualified the statement by saying he could read small words, but not big ones.

Plaintiff continued to work until July 25, 1927, when he was, at his own request, given an order to go to the Northern Pacific Hospital at Missoula, where he remained about three or four days for examination and then returned to Butte.

Dr. Dan J. Donohue testified to having made an examination of the plaintiff and that he was of the opinion his injuries were serious and permanent.

The plaintiff's testimony was disputed on every point by witnesses who testified on the part of the defendant. The section foreman and the other section hands who were working with plaintiff contradicted his account of the dropping of the rail, said no such incident occurred, and that plaintiff was not injured at all. Medical testimony on the part of the defendant tended to show that, while plaintiff was suffering from some ailments, they could not have been produced by an injury such as he claimed to have received. The section foreman, Swanson, gave his version of the signing of the paper above referred to by the plaintiff, substantially as follows:

The plaintiff came back on May 31st and asked if he could go to work and was told that he could; that witness then got the blank form of release, handed it to plaintiff and told him he would have to fill it out, sign it, and give it back. "He said, 'All right.' He did not fill it out at that time. I next saw the release after that on the third day of June. I saw him at the car house; he was sitting there reading it. * * * He did not sign it then at the car house, but came over to the house and told me * * * to make it out for him because he never made out any before. He then handed me the release. It was not signed then. I told him to sign it and I would fill it in. He signed it then in my presence. * * * That was on June 3d. He started to work at 1 o'clock on the 31st of May."

The witness said:

There was no money paid to plaintiff when he signed the statement, and "I did not threaten to fire him if he didn't sign it, but I couldn't put him to work if he hadn't signed it. He had been at work three days down there with the understanding that he was to sign the release. He had already been working three days down there, but I had handed him the release and told him to fill it in and sign it and give it back to me. Two days later it had not been signed; he signed it on the 3d. He worked three days and a half before signing it, and was working at the same wages that he had been before he was injured, was doing exactly the same kind of work as he was the day before he was injured, and was doing his work just as well as I would [want] a man to do."

At the close of all the testimony, the defendant moved the court for a directed verdict in its favor upon grounds which will be noted later. The motion was denied.

In addition to their general verdict in favor of plaintiff, the jury in response to three special interrogatories submitted to them, found that no signal was given to throw the rail before the men handling the same dropped it, that the man who was on the same end of the rail with plaintiff let go before the signal to throw it was given, and that, when the rail was dropped or thrown, it struck the plaintiff on his side or hip.

Counsel for defendant have earnestly argued that the motion for directed verdict should have been sustained, because there was no substantial evidence to support the allegations of the complaint; that the plaintiff's testimony was so inherently improbable as to deny it any claim to respect, and that under the rule recognized by this court in Grant v. Chicago, M. & St. P. Ry. Co., 78 Mont. 97, 252 P. 382, and Casey v. Northern Pacific Ry. Co., 60 Mont. 56, 198 P. 141, and other cases, the verdict should be set aside and a new trial ordered on that ground.

Upon a consideration of all the testimony, we are impelled to the conclusion that the rule relied upon by counsel is not applicable to the facts disclosed in the record in the instant case.

It is next insisted that the defendant's motion for a directed verdict, made at the close of all the testimony, should have been sustained, because the evidence showed that the plaintiff had released the defendant from all liability for the injuries received. This contention is based upon the effect of plaintiff's execution of the release above referred to. Plaintiff admitted that he signed the instrument, but sought to avoid its effect by asserting, among other things, that he did so without any consideration, and therefore it was not binding upon him.

In the first place, it is to be noted that, under the provisions of section 7512, Revised Codes of 1921, "a written instrument is presumptive evidence of a consideration." The plaintiff did resume his service in the employ of the defendant, and continued to work until he voluntarily quit about the 26th...