Hot Springs Ry. Co. v. McMillan
| Decision Date | 17 June 1905 |
| Citation | 88 S.W. 846 |
| Parties | HOT SPRINGS RY. CO. et al. v. McMILLAN. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Hot Spring County; Alexander M. Duffie, Judge.
Action by A. H. McMillan against the Hot Springs Railway Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.
This suit was brought by McMillan against the Hot Springs Railway Company to recover damages for the crushing and mangling of his left hand. McMillan was a brakeman of the Hot Springs Railway Company, and his injury was caused while he was coupling cars at Butterfield. He charged that the liability of the railway company grew out of negligence in failing to provide him with suitable and safe appliances with which to make the coupling, in this: that the holes in the drawhead of one of the cars were out of shape, and the pin furnished to make the coupling was too large to pass readily through said holes. Plaintiff charged that by reason of the imperfect, unsafe, and dangerous condition of these appliances his hand was caught between the drawheads while he was attempting to make the coupling, and badly crushed and mangled; that plaintiff was in the discharge of his duty as brakeman, and did not know of, and by the use of ordinary care could not have discovered, the dangerous condition of such appliances. Damages were laid at $25,000.
The Choctaw, Oklahoma & Gulf Railway Company is made defendant because since the injury it had purchased the Hot Springs Railroad and was operating it when suit was brought. The Hot Springs Railway Company answered, setting up the following alleged release in accord and satisfaction, viz.:
It also denied all the material allegations of the complaint, and set up contributory negligence.
The Choctaw, Oklahoma & Gulf Railroad Company filed a separate answer, denying in detail all of the allegations of the complaint, and admitting its purchase of the Hot Springs Railroad, and that it was at that time in the possession of and operating the same, but denying that, as purchaser or otherwise, it assumed all or any of the debts and liabilities of the Hot Springs Railroad Company, and denying that it was liable to the plaintiff for said alleged injury.
The plaintiff replied to that part of the answer of the Hot Springs Railroad Company setting up a release as follows: "Plaintiff alleges that he never at any time agreed to release the defendant Hot Springs Railroad Company from the damages resulting to him from the injury complained of herein; that it is true the said defendant Hot Springs Railroad Company presented the plaintiff a writing containing a full release to said company from such damages, but plaintiff refused to make or sign such release; that at the time said writing was presented to him another writing was also exhibited to him, which was simply a receipt for money which had been paid to him by said company during the time he was disabled from work on account of said injuries, as salary, that had accumulated to him during such time; that it was customary for said company to allow the time of its employés who were disabled from work by injuries received while in the discharge of their duty to continue, and to pay such employés for such lost time without any deduction, and that said company paid plaintiff said salary during the time he was unable to work, and in that way said sums of $346.05 and $50 were paid to plaintiff, and the writing that plaintiff signed or intended to sign was the receipt for said money, and plaintiff says that, if said company has any such paper with his name thereto as that a copy of which is exhibited with said answer, his signature thereto was obtained by and through the fraudulent acts of Fred A. Bill, the agent and employé of said company, at...
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