Fivey v. Pa. R. Co.

• Decision Date: 16 June 1902
• Citation: 67 N.J.L. 627,52 A. 472
• Parties: FIVEY v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

52 A. 472

67 N.J.L. 627

FIVEY

v. PENNSYLVANIA R. CO.

Court of Errors and Appeals of New Jersey.

June 16, 1902.

(Syllabus by the Court.)

Error to circuit court, Hudson county.

Action by Patrick Fivey against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Thomas P. Wickes, for plaintiff in error.

James B. Vredenburgh, for defendant in error.

HENDRICKSON, J. The plaintiff brought suit against the defendant company to recover damages for an injury resulting from the alleged negligence of the company. The defense was a denial of the negligence and a release. The case was tried at the Hudson circuit and resulted in a direction of the verdiet in favor of the defendant. Exception was taken to this action of the trial judge, and error has been duly assigned thereon.

The plaintiff's injury happened on March 14, 1899, in the Harsimus freight yard of the defendant, at Jersey City, while in its employ as a brake-man. A freight train of open cars, loaded with lumber, was engaged in drilling; cutting off a car at a time, and, by means of switches, locating them upon the tracks at the various piers of the company on the river. The plaintiff was in charge of one of these cars just cut off from the train, and was standing at its easterly end, regulating its movement by means of a hand brake, which consisted of a wheel on top of an upright rod, with a ratchet at the foot, into which a dog would fall at each rotary movement of the brake, and hold it in place until moved again. While the car was moving eastwardly toward the dock, a switch was misplaced, whereby the car was being carried upon the wrong track, and was about to collide with an engine standing there. The plaintiff's story is that he at once applied the brake, but ineffectually, because it was out of order, and, from the force of the impact of the collision, the lumber in the car was thrown against him, causing his injuries. He says the defect in the brake was that the rod was bent, causing the dog to fall below the ratchet, leaving him to hold the brake in place by main strength. It will be perceived that the charge of negligence involved, as questions of fact, the alleged defect in the brake, and the failure of the company's agents to discover it by the exercise of reasonable care, and whether the defect had existed for such a length of time as to afford the company a reasonable opportunity to discover it. The plaintiff's evidence upon these questions was traversed by that of the defendant, but, since the judge's direction was confined to the proof upon the subject of the alleged release, we will not consider, for the present, at least, the question of the failure to prove negligence, which was one of the grounds of the motion to direct the verdict. In addition to other defenses, the defendant pleaded and offered proof in support of the following facts, to wit: That the plaintiff, as an employe of the defendant, some time prior to the accident had applied for membership in the relief fund managed by the defendant company, as alleged, for the protection and benefit of such of its employes as might desire to avail themselves of its provisions; that one of the agreements in the application is that, if the applicant should be accepted as a member, the acceptance of benefits from the relief fund for injury or death should operate as a release of all claims for damages against the company arising from such injury or death, and that the plaintiff or his legal representatives would execute such further instruments as might be necessary to formally evidence such acquittance; that the application was duly approved by the defendant, and the plaintiff thereupon accepted and admitted as a member in the relief fund; that after the date of the alleged injury the plaintiff accepted from the relief fund, for his said injuries, certain payments made from time to time, aggregating the sum of $82, and gave receipts and acquittances for the same, which operated as a release of all the claims for damages alleged in the suit.

The plaintiff did not deny the facts thus alleged, but, by his pleading and proof, sought to avoid the effect of such alleged release on the ground that the agreement in question was unknown at the time of the execution of the application for membership, and that it was in fact obtained from him by fraud and deceit The replication, setting up the fraud by general averment, was sustained on demurrer. Fivey v. Railroad Co. (N. J. Sup.) 48 Atl. 553. And under the point we are now considering, the question is, was there sufficient proof of the alleged fraud and deceit before the court to send the case to the jury? In such an inquiry we must take that view of the evidence which is most favorable to the plaintiff. The case shows that the execution of the application for membership took place in the presence of the medical examiner of the defendant, in the relief department, at Jersey City, to whom the plaintiff had presented himself for the required physical examination. It occurred at the close of the examination, the results of which are found embodied in the examiner's certificate, attached to and forming part of the application, which was partly printed and partly written. The plaintiff gives his version of the transaction, from which we are asked to gather the elements of the fraud alleged, as follows: "Q. At the time when it was handed to you for execution, that day when you went up to the doctor's office. Confine your evidence to what was said to you when the paper was handed to you for execution. A. He simply shoved it in front of me, and told me to sign my name; that it was all a matter of form; that is all. Q. What was said to you at this time by Dr. Simpson in reference to this document just before you signed It? A. Nothing whatever. Q. The Court: You can read and write? A. Yes; there is plenty of words I didn't understand. Q. The Court: You can read? A. A little; not much. Q. You can read print? A. With the exception of some words. Q. What, if anything, did Dr. Simpson say to you at this particular time touching the nature of the paper which he asked you to sign? A. He said it was a benevolent association belonging to the employes of the railroad, and there was so much deducted from their wages every month to contribute toward the support of this fund, according to what class you would go in. Q. Did he say anything to you about the railroad companies being a part of this fund? A. Nothing whatever. Q. Did he say anything to you at this time about your releasing the railroad company in case of any accident to you? A. No, sir. * * * Q. Did lie request you at any time to sign the paper? A. When he was all through, he shoved it in front of me, and he said, 'Sign it' I commenced to read it. He said it was all a matter of form; it was immaterial. Q. How did you commence to read it? A. I commenced to look at the print, out of curiosity, to see what it contained, if I could possibly make it out. Q. Did you read any part of what is written in that left-hand page before he told you that it was a matter of form or immaterial? A. He would not give me time to read it. Q. Did you read it? A. No; I did not. Q. Did you read at that time anything on either side of the paper? A. No, sir." The witness further testified that the doctor did not, at or prior to the time of signing, read to him anything from the paper, nor from any book like the book of the regulations of the relief fund offered in...