Graham v. Atchison, T. & SF Ry. Co.

• Decision Date: 11 October 1949
• Docket Number: No. 12099.,12099.
• Citation: 176 F.2d 819
• Parties: GRAHAM v. ATCHISON, T. & S. F. RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

176 F.2d 819 (1949)

GRAHAM v. ATCHISON, T. & S. F. RY. CO.

No. 12099.

United States Court of Appeals Ninth Circuit.

August 30, 1949.

Rehearing Denied October 11, 1949.

Philander Brooks Beadle and Ernest E. Emmons, Jr., San Francisco, Cal., for appellant.

Robert W. Walker and H. K. Lockwood, Los Angeles, Cal., Gus L. Baraty and George Aaron Smith, San Francisco, Cal., for appellee.

Before GARDNER, Chief Judge,^* HEALY, Circuit Judge, and YANKWICH, District Judge.

YANKWICH, District Judge.

The appellant, George H. Graham, the plaintiff below, a brakeman in the employ of the appellee, the defendant below, began, on August 30, 1946, an action for damages for personal injuries under the Federal Employers' Liability Act, 45 U.S. C.A, § 51 et seq. The defendant, Atchison, Topeka and Santa Fe Railway Company, is a corporation organized under the laws of the State of Kansas, engaged in the business of a common carrier by railway, in interstate commerce, in the State of California and other states.

I. The Facts in the Case.

The plaintiff was injured on July 6, 1945, at Needles, California. He had begun to work at the hour of 10:00 A.M. of that day at Seligman, Arizona. At the time of the accident, he was working as a flagman on a freight train of about 70 cars. He was the flagman at the rear end of the train, in the caboose. He arrived in the yard at Needles at 1:00, the train coming to a final stop inside number 20 track. With the train coming to a stop, the plaintiff's duties ended. Track 20 was clear of the main line. The plaintiff took down the lanterns from the rear of the caboose, crawled into the cupola of the caboose and sat down, waiting for his train to move farther into the freight yard. While there, he first saw in the window of the caboose the reflection of an approaching train. This having drawn his attention to the approaching train, he turned around and looked back. The approaching train was anywhere from 600 to 1000 feet away, down the track. Thinking that the train was coming a little fast, the plaintiff put his body out of the cupola window and put out his lamp to slow down the approaching train. But it kept on coming, and gave no response to the signal. So he went back to the platform and put out his lamp to slow it down. However, the approaching train was too close to enable the plaintiff to reach for the fusee and break it. Being unable to do anything about the matter, the plaintiff went back into the caboose and jumped to the cupola, hoping for a chance to get out of the cupola window. He did not, in fact, do so. For, to one side of him was the river and to the other were piles of ties. He, therefore, took hold of a grabiron and when the train hit the caboose he was pitched up into the air and down on the floor. As he was trying to get up on his feet, a second crash occurred. He managed to crawl into a passenger train, which took him to the station. He declined to go to the hospital and was driven by another employee to his cottage in Needles. He then drove to his home in Searchlight, Nevada. He stayed in bed for about three days. On July 9, he drove to Boulder City and saw a physician, Dr. Fenlon, who ordered him to bed. No X-rays were taken. On July 17 or 18, he saw Dr. Price, in Needles, who told him that he had "some bad bruises and contusions" and gave him some pills to relieve the pain. Early in August he saw another doctor, Dr. Holz, who ordered him to enter the Santa Fe Hospital at Los Angeles. At the time he was suffering pains mostly "in his hips, back, left shoulder and back of the head." He entered the hospital at Los Angeles on August 14. A few days after his admission, they took X-rays. Otherwise, his treatment consisted of "heat treatments and pills." He left the hospital voluntarily on August 24 and went back first to Needles, then to Searchlight. While in the hospital, he talked, on August 18, to Dr. Morrison, Chief Surgeon of the hospital, who told him to go back to work. The plaintiff gave this version of his conversation with Dr. Morrison:

"Q. And what did he tell you? A. Well, he told me to go back to work if I possibly could, that the company was very short of men and that they needed to keep the trains operating — the war was still on, and to go back and take it easy, that I would be all right in thirty or sixty days. So he gave me a release and I went back, but I didn't go to work right at that time.

"Q. Dr. Morrison told you that you would be all right within thirty to sixty days? A. Thirty to sixty days, to take it easy.

"Q. Did he tell you to go back to work at the same type of work that you had been doing before? A. No, he didn't.

"Q. What did he tell you? A. Told me to take a passenger job, take it easy."

Upon reaching the hospital he was handed a document certifying to his discharge from further treatment. Again quoting from the record:

"Q. (Mr. Emmons): Now at the time that you talked to Dr. Morrison, was there any question regarding broken bones? A. No, none at all.

"Q. Did he tell you that there were no broken bones? A. Told me — he didn't say there was no broken bones, he just said, `Go back and take it easy, you will be all right, you can get along.'

"Q. Did you ever see the x-rays? A. No.

"Q. That the Santa Fe Railroad took? A. No, they wouldn't show them to me.

* * * * *

"Q. (Mr. Emmons): Mr. Graham, did you have any knowledge of any other injuries, other than those which you discussed with the doctor? A. No.

"Q. And what injuries were discussed with the doctor? A. Well, I told him my hip was hurting me, and my back, through the small of my back, and my shoulder. He felt me over. Well, he says, `You'll be all right; take it easy.' He said, `Get back on the job.' He repeated that several times, to get back on the job, that we needed every man we could get, that war was still on."

The facts relating to the release, signed by the plaintiff, as told by him from the stand were these:

A Mr. Sims, Assistant Claims Adjuster in Los Angeles, called him while he was at the hospital. He took a taxi and met Sims in his office in the Santa Fe Building, who told him that he wished to discuss the adjustment of the claim. He returned to Needles. Nothing definite came of the meeting. About September 25, he saw a Mr. Evan Lewis, Claim Adjuster, who, at first, offered him $1200 or $1300 in settlement of the claim, stating, however, that "the Los Angeles office" would not accept it. He finally went to the Los Angeles claims office and signed a release on October 1, 1945, receiving at the same time, a check for $1050. The release reads:

"For the sole and only consideration of $1,050, the receipt of which is hereby acknowledged, I hereby release and forever discharge the Atchison, Topeka & Santa Fe Railroad Company, Coast Lines, its agents and employees from any and all claims and demands which I have now or may hereafter have on account of any or all injuries, including any injuries which may hereafter develop as well as those now apparent, sustained by me at or near Needles, California, on or about July 6, 1945, while employed as brakeman; also for loss or damage to personal property. In making this settlement, I am not relying upon any statement made by any agent or official of said Company as to what my injuries are or how serious they are or when or to what extent I may recover therefrom. It is definitely understood that in making this settlement, no promise or representation has been made relative to future employment.

"I have read the above release and understand the same. In Witness Whereof, I hereunto set my hand and seal this first day of October, 1945.

"G. H. Graham."

The plaintiff worked for a period of forty-five days after his release from the hospital. He was discharged by the defendant in February, 1946, for reasons not connected with the injury. On February 13, 1946, an X-ray of the spine was taken by Dr. Fenlon, who then advised the plaintiff that he had an injury to his spine. Medical testimony at the trial was to the effect that these X-rays showed the identical crushed disc disclosed by X-rays taken at the hospital in August, 1945.

The answer of the defendant filed September 25, 1946, pleaded, in bar, the release executed October 1, 1945. Plaintiff's present counsel were substituted on November 24, 1947. On November 25, 1947, they wrote a letter to defendant's attorneys in Los Angeles, which read:

"November 25, 1947 "Messrs. Sievert and Ewing "Attorneys at Law "121 East 6th Street "Los Angeles, California. "Re: Graham vs. Santa Fe Railroad. "Gentlemen:

"Enclosed please find file-marked copy of Substitution of Attorneys in the captioned case, wherein this office replaces Emmett R. Burns, Esq., as attorney of record.

"Also enclosed, please find a Notice of Rescission of Release and Offer to Restore Consideration executed by Mr. Graham. Kindly advise us of your wishes in this respect.

"Very truly yours "Philander Brooks Beadle, "By ....................."

At the trial, the attorneys for defendant admitted receipt of the letter. Without objection, it was received in evidence and read to the jury. The notice of rescission of release and offer to restore consideration, to which the letter referred, was not offered in evidence and was not read to the jury. The plaintiff testified to his ability actually to tender to the defendant the amount received in settlement. Other testimony will be referred to further on in the opinion.

At the conclusion of plaintiff's case, the defendant offered as their only witness, Dr. Ralph Soto-Hall, who gave medical testimony as to the nature and extent of the injuries. The defendant then moved for a directed verdict, Federal Rules of Civil Procedure, Rule 50, 28 U.S.C.A., upon the general ground that there was no evidence before the court to impugn the validity of the release; and, more particularly, that there was no evidence to show that the release was obtained by fraud, duress or undue...