Denver & R. G. R. Co. v. Scott

• Decision Date: 03 July 1905
• Citation: 81 P. 763,34 Colo. 99
• Parties: DENVER & R. G. R. CO. v. SCOTT.
• Court: Colorado Supreme Court

81 P. 763

34 Colo. 99

DENVER & R. G. R. CO. v. SCOTT.

Supreme Court of Colorado

July 3, 1905

Appeal from District Court, El Paso County; Louis W. Cunningham Judge.

Action by John A. Scott against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

On December 20, 1900, the appellee was in the employ of the appellant as a fireman, and on the evening of that day was in that capacity on an engine pulling a freight train consisting of 16 loaded and 12 empty cars, which left Cumbres Station, and began the descent of the western slope of the San Juan range, in southwestern Colorado. After the train had passed Coxo, a mile and a half from Cumbres, the air brakes did not take hold with effect, and, owing to the steep grade the train attained a velocity of 35 or 40 miles an hour, and continued running at this speed about a mile and a half until it reached a point near Chama, where it was stopped by the vigorous use of the hand brakes. The appellee claims that the failure of the air brakes to check the speed of the train was because of their defective condition. The appellant contends that by reason of the extreme cold the brakes and wheels became so thoroughly chilled while standing that the brakes, although in good condition, would not effectively operate until they became sufficiently warm by friction to enable them to take hold with full effect. While the train was running with such rapid speed, the appellee became panic stricken, and jumped from the locomotive, and was severely hurt, sustaining a severe injury to his spine, and also a severe contusion on the head, which, according to some of the medical witnesses, amounted to a fracture of the skull. He was taken at once to Chama, the nearest station, and on the next day to the company's hospital at Salida, where he was treated for his injuries. He remained in the hospital from December 22, 1900, to January 17, 1901, when, not requiring any further hospital treatment, he was discharged and went to his own people on a ranch near Falcon, Colo. After a short time, believing himself well enough to return to work, he went to Alamosa and resumed his duties as fireman. After a few days, finding the work was too hard and desiring some easier employment, the local superintendent of machinery at Alamosa, under whom he was working, gave him a letter to Mr. Schlacks, superintendent of machinery for the entire system, whose headquarters were at Denver, and appellee came to Denver about the end of April, 1901. Mr. Schlacks was then absent from the city, and the appellee called upon Mr. Mitchell, the claim agent of the company. After a conversation occupying more than an hour, in which, according to Mr. Mitchell's testimony, the appellee went over with him all the circumstances of the occurrence, and grounds of his claim which appellee claimed entitled him to damages, Mr. Mitchell, while claiming that, under the facts, the company was not liable to the appellee in damages, consented and offered to pay to appellee the sum of $150, upon condition that appellee would execute a release for any and every claim which he asserted and might have against the appellant on account of said injury, and the following release was drawn up and signed, sealed, and delivered by the appellee in the presence of C. S. Mitchell and Beverly G. Honeyman:

'The Denver & Rio Grande Railroad Company.

'General Release.

'Know all men by these presents, that I, John A. Scott, of the county of Conejos, and state of Colorado, in consideration of the sum of one hundred and fifty 00/100 dollars ($150.00), to me in hand paid by the Denver & Rio Grande Railroad Company, the receipt whereof is hereby acknowledged, do hereby release and forever discharge the said company, and all companies whose lines are operated or known as a part of the Denver & Rio Grande System, of and from all claims, demands, actions, and causes of actions which I now have, in law or equity, or which may result from any contracts, doings, or omissions at any time up to the date hereof. And I do hereby more particularly release and discharge the said the Denver & Rio Grande Railroad Company, and each and every of said companies, from all claims and demands that I now have or that may hereafter arise by reason of having my spine injured, head, face, and neck cut and bruised, and any and all other injuries to my person that I received when I jumped or fell from the locomotive of a runaway freight train, owing to air brakes, alleged to have been defective, failing to work at or near Cumbres, Colorado, on or about December 20th, A. D. 1900.

'Witness my hand and seal this 30th day of April, 1901.

'[Signed] John A. Scott. [Seal.]

'Signed, sealed, and delivered in presence of:

'[Signed] C. S. Mitchell,

'Beverly G. Honeyman.'

The plaintiff received a check from the company for the $150 mentioned in the release, and had same cashed in Colorado Springs. After remaining a short time on the ranch at Falcon, he again went to Alamosa and re-entered the service of the defendant, and remained in such service until the latter part of 1901, when he returned to Falcon, and has resided there and at Colorado Springs since. In the early part of 1902 he instituted this action, which was tried in November, and resulted in a verdict and judgment in favor of plaintiff for $49,850 and costs. From this judgment the defendant prosecutes this appeal.

Wolcott, Vaile & Waterman and McAllister & Gandy (Wm. W. Field, of counsel), for appellant.

McKesson & Little and George Gardner, for appellee.

GODDARD, J. (after stating the facts).

1. Among other affirmative defenses, the defendant pleaded the release set out in the foregoing statement as an accord and satisfaction of the claim sued on. The plaintiff replied that at the time he signed the release 'he was mentally incompetent to understand what he was doing, and that the same was procured by misrepresentation and fraud on the part of the claim agent.' Upon this issue the defendant introduced the release, the check by which the consideration mentioned in the release was paid, and the receipt for such payment, and the testimony of Mr. Mitchell and Beverly G Honeyman, stenographer in his office, as to what occurred at the time of the signing of the release, which was to the effect that, after discussing the...