Jones v. Alabama & V. Ry. Co.

• Decision Date: 26 November 1894
• Citation: 16 So. 379,72 Miss. 22
• Parties: NEWTON JONES v. ALABAMA & VICKSBURG RAILWAY CO
• Court: Mississippi Supreme Court

16 So. 379

72 Miss. 22

NEWTON JONES v. ALABAMA & VICKSBURG RAILWAY CO

Supreme Court of Mississippi

November 26, 1894

FROM the circuit court of the first district of Hinds county. HON J. B. CHRISMAN, Judge.

Action by Newton Jones against the Alabama & Vicksburg Railway Co. to recover damages for personal injuries.

The defendant pleaded, among other things, a release executed by plaintiff. The circumstances attending the execution of the release, as well as all the other facts necessary to an understanding of the cause, are stated in the opinion. It may be added that the tender referred to in the opinion was made in September following the injury in April. There was a peremptory instruction for the defendant; judgment accordingly, and plaintiff appeals.

Section 3548, code 1892, which the court holds to be a valid exercise of the police power of the state in the regulation of railroads, is as follows:

"It shall not be lawful for any railroad company, or other person, to switch a railroad car in the manner commonly known as a 'flying,' 'running,' 'walking,' or 'kicking' switch, within the limits of a municipality; and, in case of injury resulting to any person or property from switching in violation of this section, the railroad company shall be liable in damages, without regard to mere contributory negligence of the party injured."

Judgment reversed and cause remanded.

Williamson & Potter, for appellant.

1. The injury was caused by a flying switch, in violation of § 3548, code 1892, and the company is therefore liable regardless of mere contributory negligence of plaintiff.

2. The court below sustained the release in this case on the authority of Railway Co. v. Turnbull, 71 Miss. 1029. We fail to see the application of that case to this. In that case, the court held that the release could not be avoided upon the wholly insufficient evidence of fraud or misrepresentation found in the plaintiff's testimony. That case was not decided upon any preponderance of evidence. Under the facts of this case, a court of equity would not allow a contract between individuals in the ordinary affairs of life, and for such an insufficient consideration, to stand. Had appellee, under the same circumstances, secured a deed to property for such an unfair consideration, would a court of equity sustain the deed? On the subject of the release, we refer the court to Evans v. Llewellin, 1 Cox Ch., 332; 1 Story Eq. Jur., §§ 119, 222; Bean v. Railway Co., 107 N.C. 731. In the Turnbull case, this court emphasized the fact that Turnbull "did not rush into the settlement immediately after he was injured, nor did he precipitately accept an offer, but he had time for deliberation and for conference with others." Thus it is seen how different are the two cases. In view of the positive testimony of appellant and his wife, and the reasonableness of their statements, it was error to take the case from the jury.

3. No tender was necessary, 109 Ill. 131; 127 Mass. 86; 18 Kan. 58; Evans v. Llewellin, supra; 19 Am. & Eng. Ry. Cas., 220; 127 Mass. 86. However, in this case, a tender was in fact made.

Nugent & Mc Willie, for appellee.

1. It is conceded that appellant was guilty of contributory negligence, but he claims the benefit of § 3548, code 1892. What the statute means by the use of the terms "walking" switch, or "kicking" switch, we do not know. If it is intended that no car should be in motion at any time within the limits of a municipality unless there is a locomotive attached to it, it is singular that apt words should not be employed to show such intention. To say that a railroad company shall not, under any circumstances, make a flying switch, is to announce a proposition that cannot be harmonized with the general principles and policy of the law, and absolutely to deny such company the right to use its tracks and property in the manner most advantageous to itself and not hurtful to anyone who will exercise his sense of sight or hearing. The statute cannot be sustained as an exercise of police power. Such regulations, to be valid, must have reference to the comfort, safety or welfare of society; they must not take from the corporation any of its essential rights and privileges conferred by its charter. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the charter franchises. Cooley on Con. Lim. (5th ed.), 712, 713. It is not competent to make a railroad company liable for injuries for which it is in no way responsible. 78 Ill. 55. The charter of appellee antedated the constitution of 1890, and by it appellee is invested with all powers necessary for the construction, repair, use and maintenance of its railroad. The statute does not even provide a rule of comparative negligence, but of absolute liability, and is therefore not warranted by the laws of this state. Railroad Co. v. McGowan, 62 Miss. 682; Railroad Co. v. Bourgeois, 66 Ib., 3; 58 Ala. 594.

2. The release is an absolute bar. On the trial plaintiff swore he did not make the settlement or sign the release at all, and in this his pliant wife corroborates him. But there is no plea of non est factum, and so the evidence amounted to nothing. Plaintiff admits that, in a short while, the effects of the morphine were dissipated, and he was made aware of what he had done, and, while fully conscious of the effect of the release, he retained and used the money. He did not promptly disavow the contract and offer to return the money. Such retention was an acquiescence. 44 Am. & Eng. R. R. Cas., 488; 1 Ib., 302. The tender of the money was made only for the purpose of bringing the suit. There must be clear and indisputable evidence of fraud to warrant the submission of the question of its existence to the jury. Railroad Co. v. Turnbull, 71 Miss. 1029; Railroad Co. v. Shay, 82 Penn., 198; 12 A. 78.

Argued orally by W. H. Potter, for appellant, and T. A. Mc Willie, for appellee.

OPINION

WHITFIELD, J.

The circumstances under which the release was executed by appellant, as shown by his and his wife's testimony in the record, were as follows: The appellant was lying in his bed the morning after his foot had been amputated, under the influence of opiates administered by his wife the night before. He was stupid, sleeping, waking when roused, and going back to sleep again, knowing himself nothing whatever as to the execution of the release, or what transpired at the time, suffering bodily and mentally from the shock of the injuries, and the amputation made less than twelve hours previously. His name and his wife's were written by the railroad officials, and signed by them to the release, and their cross-marks made, and they then touched the pen. This was in the morning, before breakfast. It was witnessed by Dr. Page, a witness for the appellee, Mr. Kretz, and Mr. Stevenson, employes of the appellee, and by a colored girl named Owens, whose name was written as appellant's had been, she touching the pen. Not a solitary friend of the appellant, competent to advise, was present. He had been injured on April 13, his foot had been amputated on the fourteenth, and this release was executed about six or seven o'clock on the morning of the fifteenth, in less than twelve hours after the amputation. His wife had given him at least two doses of some opiate that had been left by some of the doctors during the night preceding the amputation. When Stevenson came into the room where appellant was in bed, in the stupid, sleeping condition the testimony of appellant and his wife have thus described, Newton says: "He shook hands with me. I thought it was some young man that had been in the army. I met up with them quite frequently. I thought he was one of them. I don't know who he is. I don't know that I ever saw him before. I intended to ask him who he was." Describing the effect of the opiate upon him, he says: "It appeared to him like a dream when he got up. He thought it was night."

In the evening of the same day, about two o'clock, Kretz came back and brought another release, which was signed and witnessed in the same way, except that the girl, Owens, did not attest it. In the morning $ 50 had been paid, and a due bill for $ 250, payable April 17, two days later, given. In the evening this due bill was taken up by the debtor, two days in advance, and $ 250 paid. The money was put on the bed, the wife took it and put it away, and the husband knew nothing whatever about it, or about the settlement at all, until told by his wife, she supposes a week or two later. This is the scene--these the dramatis personae. Is anything more than its naked statement needed to shock the conscience? There is a fitter place for the execution of such a release than the sick room of the sufferer, and a fitter time than a period following, by less than twelve hours, the amputation of his foot. Unhesitatingly we join the Illinois supreme court in pronouncing this "indecent haste" (109 Ill. 120), and declaring that this release, if thus obtained, is an absolute nullity. Courts do not sit to sanction such travesties of contract. An aged negro, with the degree of intelligence shown by the record, situated as he was, dealt with as he was, cannot thus be overreached. It must be carefully borne in mind that we are speaking now of the propriety of the peremptory charge, and speaking of that in the light of the testimony of appellant and his wife alone. If what they say is true, this release is utterly void, and whether it was true was a question of fact for the jury.

We are abundantly supported by authority--if any were needed--in declaring the release void, if this testimony be true. In Evans v. Llewellin, 1 Cox's Cases 333 a husband who had no interest in lands, a moiety of which had...