Chi., R. I. & P. Ry. Co. v. Perkins

• Decision Date: 06 October 1925
• Docket Number: Case Number: 15600
• Citation: Chi., R. I. & P. Ry. Co. v. Perkins, 1925 OK 801, 242 P. 535, 115 Okla. 233 (Okla. 1925)
• Parties: CHICAGO, R. I. & P. RY. CO. v. PERKINS.
• Court: Oklahoma Supreme Court

1925 OK 801

242 P. 535

115 Okla. 233

CHICAGO, R. I. & P. RY. CO. v. PERKINS.

Case Number: 15600

Supreme Court of Oklahoma

Decided: October 6, 1925

Syllabus

¶0 1. Negligence--Essential Elements.

To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure.

2. Same--Question for Jury--Failure of Proof.

Under section 6 of article 23 of the Constitution (section 355, Williams' Ann. Const. Okla.), the question of contributory negligence or assumption of risk in all cases is a question of fact at all times to be left to the jury, but this provision does not relieve the party suing for damages for an alleged injury from the burden of proving that the injury was the proximate result of negligence on the part of the party sought to be charged.

(a) Where there is no evidence reasonably tending to show that such party sought to be charged was guilty of negligence, it is error for the trial court to submit such issue to the jury.

3. Same--Demurrer to Evidence--Direction of Verdict.

A demurrer admits the truth of all the evidence introduced and of all the facts which it tends to establish, as well as every fair and reasonable inference, and should be overruled unless the evidence and inferences which a jury could reasonably draw from it are insufficient to support a verdict for plaintiff. But where the evidence fails entirely to show primary negligence, the court should sustain the demurrer and instruct a verdict in favor of the defendant.

4. Release -- Fraud -- Validity Though Injuries Did not Heal as Soon as Expected.

A person who executes a release for a claim for damages for personal injuries received, and who acted deliberately and intelligently, cannot rescind it for fraudulent representations upon discovering that the injuries did not heal as rapidly as he supposed at the time of signing the release, even though the attending surgeon told him he would be all right in a short time, where no fraud, deceit, or imposition was practiced upon him, and the opinion of the surgeon was given in good faith.

5. Same--Rescission for Mutual Mistake--Necessity for Mistake of Fact.

A release may be set aside for mutual mistake; but in such case there must be mutual mistake of a past or present fact material to the agreement, and must not be, a mistake in prophecy, opinion, or in belief relative to an uncertain event, such as probable developments from and permanency cy of a known injury.

6. Contracts--Fraud to Overturn--Predication on Existing Facts--Proof.

Fraud is never presumed, and, when a written contract is attacked on that ground, the contract will be upheld unless the allegations of fraud are established by clear and convincing evidence, and the fraud must be predicated upon existing facts, and cannot consist of mere promises as to future action.

7. Release--Fraudulent Procurement--Evidence Insufficient.

Evidence examined, and held, insufficient to show fraudulent representations in procuring release in this case.

Commissioners' Opinion, Division No. 1.

Error from District Court, Beckham County; T. P. Clay, Judge.

Action by John Embre Perkins against the Chicago, Rock Island & Pacific Railway Company. Judgment for the plaintiff, and defendant brings error. Reversed.

C. O. Blake, A. T. Boys, W. R. Bleakmore, and W. F. Collins, for plaintiff in error

Ledbetter, Stuart, Bell & Ledbetter and A. G. Morrison, for defendant in error.

MAXEY, C.

¶1 This is an action by John Embre Perkins, as plaintiff, against the Chicago, Rock Island & Pacific Railway Company, a corporation, as defendant, to recover damages sustained by the plaintiff on the 29th day of October, 1921, caused by the plaintiff, Perkins, falling into a turntable pit at Waurika, Okla., one of the stations on the defendant's railway, by reason of which the said Perkins injured his wrist. The negligence charged to the defendant railway company is stated in the 3rd paragraph of plaintiff's first cause of action:

"Third. That on the night of the 29th day of October, 1921, while plaintiff was employed by the defendant in its shops and round house at the said station of Waurika, and while he was in the exercise of due precaution for his own safety, he was seriously injured by reason of the negligence of the said defendant; that in the said yards and for the purpose of conveying engines to the different stalls of the said round house, there was a turntable pit, some three or four feet in depth and some 35 or 40 feet in diameter; that there were no balustrades, or safeguards to prevent one from falling into the said pit; that it was the duty of the defendant, under the circumstances, to have lights over or around the said turntable pit so that the plaintiff or others in the employ of the defendant could see and prevent falling into the same; that defendant wholly disregarded its duty to furnish the said lights or to furnish the plaintiff with any kind of light by which he could see where he was walking, and that by reason of said negligence on the part of the defendant, the plaintiff walked and fell into the said turntable pit, falling upon his left wrist with such force and violence that it was broken; that his said wrist and hand became permanently weakened by reason of the injury, and plaintiff's earning power was greatly reduced thereby; that he suffered great pain on account of same; that he will suffer pain in the future by reason thereof; that at said time plaintiff was a strong healthy man, 41 years of age, and was capable of earning and was earning $ 150 per month."

¶2 There was a second cause of action included in plaintiffs petition for a second injury that plaintiff had on the 10th day of June, 1922, whereby he injured the same wrist while working with a wheelbarrow, but a demurrer to the evidence to this cause of action was sustained by the court, and that part of the plaintiff's case is not before this court.

¶3 In the answer of the defendant, it is alleged that the injury was caused by the negligence of the plaintiff, which directly and proximately contributed to such injury, and that at such time plaintiff was engaged in interstate commerce.

¶4 In the fourth paragraph of the answer, the defendant alleges, as a defense to plaintiff's first cause of action, that after said injury set out in the first cause of action, above quoted, the plaintiff, Perkins, made a claim against the defendant for the damages sustained as set out in the first cause of action, and in order to avoid litigation, the defendant railway and plaintiff compromised and settled all claims arising out of said accident, for which plaintiff claimed defendant was liable, in the sum of $ 350, and the defendant paid to the plaintiff said sum of $ 350, and in consideration of the payment of said sum, the plaintiff released defendant from all liability whatsoever resulting from the injury he claimed to have sustained by said accident, and took a written release from the plaintiff, Perkins, for all damages caused by said injury.

¶5 The plaintiff filed a reply to said answer, in which he set up that said release and settlement was obtained by fraud and misrepresentation, and was therefore void, and tendered back the $ 350 received by him. With the reply on these issues, the case went to trial, and plaintiff testified in his own behalf that he had been employed by the defendant four or five years at Waurika on defendant's line, and that on the night of October 29, 1921, while attending to his duty, he fell into the turntable pit and broke his left wrist; that his duties were that of watching the engines, that there were engines on the south side of said pit and near the round house, and that in passing around said turntable pit, he got nearer the pit than he thought he was, and fell in the pit. There were lights on the turntable near the center and plaintiff was carrying a lantern in his hand at the time he walked into the pit. It is contended by the plaintiff that the defendant should have had a balustrade around said pit, and should have had it lighted up so that one passing around could see the pit and avoid falling into

¶6 In answer to this contention, the defendant claimed that said turntable was lighted up in the manner that other railroads lighted their turntables, and that the railway company furnished the plaintiff with a lantern to light his way around said turntable and through the yards, and that the falling into said turntable pit was caused by the plaintiff failing to look around and see where he was going. There was no one who saw the accident. The plaintiff got out of the pit and went into the round house and reported the accident.

¶7 In regard to the settlement, the plaintiff stated that he relied on what Dr. Maupin told him about the condition of his wrist, and how soon he would be able to go to work; that Dr. Maupin stated that it would be all right in a short time and for him to work the fingers, which had become somewhat stiff, and that the more he worked them, the sooner they would get all right; that he then went to El Reno, the general office of the company, and saw Mr. Chastain, the claim agent, about settlement; that Chastain told him at first that he did not think the company would pay him anything, and that he thought they ought to, and that he was entitled to $ 500; that Chastain then called up over the telephone Dr. Aderhold or Dr. Brown, and after he talked with them. Mr. Chastain said: "The doctor thinks your wrist will be all right in a short time"; and that after some talk Mr. Chastain agreed to pay him $ 3.50 in full settlement of his claim, and he agreed to accept it, and did accept it and sign the release. This was all of the testimony in regard to settlement by the doctors or employes of the...