Childeris v. Northern Pac. Ry. Co.

• Decision Date: 06 January 1920
• Docket Number: No. 15886.,15886.
• Citation: 218 S.W. 441
• Parties: CHILDERIS v. NORTHERN PAC. BY. CO.
• Court: Missouri Court of Appeals

218 S.W. 441

CHILDERIS v. NORTHERN PAC. BY. CO.

No. 15886.

St. Louis Court of Appeals. Missouri.

January 6, 1920.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

"Not to be officially published."

Action by John Childeris against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fauntleroy, Cullen & Hay, of St. Louis, for appellant.

Ernest C. Dodge and Safford & Marsalek, all of St. Louis, for respondent.

NIPPER, C.

This is an action for damages brought by the plaintiff against the defendant in the circuit court of the city of St. Louis. The petition tiled in this case alleged that the defendant is engaged, as a common carrier, in interstate commerce, and having an office for the transaction of business in the city of St. Louis, Mo.

That on the 14th of November, 1912, defend ant was engaged in repairing its tracks and bridges at Missoula, Mont., through a crew of employés, who were housed and fed in a bunk car attached to one of defendant's trains; that in making repairs, defendant transported said crew and their repair materials from this bunk train to the point on said road where the repairs were to be made by means of hand cars; that one of these hand cars was in bad repair, and that on the 14th of November, 1912, while plaintiff was riding the broken hand car, at the direction of his foreman, said car was derailed, by reason of the manner in which the cars behind it were operated, and plaintiff suffered the injuries for which he claims damages. The answer was a general denial and a plea of contributory negligence, and a further plea that prior to the time plaintiff filed his petition he had, in consideration of the sum of $25 paid him by the defendant, released, acquitted, and discharged defendant from any and all causes of action. This purported release was set out in defendant's answer.

Plaintiff in his reply to this answer denied the charge of contributory negligence, admitted the signing of the release in question, but alleged that defendant had induced plaintiff to sign and deliver the release referred to, by falsely stating to him and inducing him to believe that this release was a mere report of the facts concerning the manner in which plaintiff received his injuries, and that at the time of the signing of the release in question plaintiff "was sick and injured, ignorant and uneducated, and unable to read said release," and that later plaintiff accepted said sum of $25, believing that it was paid him in consideration of his signing a report to defendant, and not as compensation for any injuries he had received; that plaintiff had tendered to the defendant the sum received, together with interest. This reply was not verified by affidavit. At the trial in the court below, the jury returned a verdict for plaintiff against defendant, for $530, less $30. After unsuccessfully moving for a new trial, defendant brings this case here by appeal.

The evidence offered on the part of the plaintiff was to the effect that at about the time mentioned in his petition he and other track laborers were repairing defendant's track near Missoula, Mont.; that one of the hand cars upon which they rode was out of order, and had been for some time, and that this fact was known to defendant's foreman; that on the day this accident occurred the broken hand car was placed on defendant's track, at the direction of its foreman, and that the other hand cars, about three in number, were placed immediately behind this broken car, so that they might push it along defendant's track toward the bunk car where they were going; that the car immediately behind the broken hand car, in striking the front car, would tend to tilt the front wheels; that defendant's foreman had admonished them to drive fast, as there was a train approaching, and that under these circumstances the front of the broken car upon which plaintiff was riding was derailed, throwing plaintiff from said car, at which time he received the injuries complained of; that after being in the hospital for some time he conversed with defendant's claim agent, through one Gustas; that at that time, which was on or about the 9th of January, 1913, the claim agent stated, "We ought to make a report to the company;" that he wrote out something, had the plaintiff sign it, and stated he would send it to the company, and in about six days would hear what the company had to say; that he went back to the claim agent, accompanied by the Greek fruit man Gustas, a few days later, and at that time they offered him $25, and told him if he had witnesses he could have more money, "and they laughed, to one another; they were making fun out of it"; that the claim agent never read the report to him; that he could not read it himself; that nobody read it to him; and that at that time he did not know anything about such business as a settlement. All the evidence offered on the part of the plaintiff tended to support his theory of the case. This testimony was denied by defendant's witnesses.

The first assignment of error made by the defendant was that the court should have sustained its motion for judgment on the pleadings, inasmuch as the reply filed by the plaintiff was not verified, as required by section 1985,...