Manchester St. Ry. v. Barrett, 1445.

• Decision Date: 18 May 1920
• Docket Number: 1445.
• Parties: MANCHESTER ST. RY. v. BARRETT.
• Court: U.S. Court of Appeals — First Circuit

265 F. 557

MANCHESTER ST. RY. v. BARRETT.

No. 1445.

United States Court of Appeals, First Circuit.

May 18, 1920

De Witt C. Howe, of Manchester, N.H. (George H. Warren and Warren Howe & Wilson, all of Manchester, N.H., on the brief), for plaintiff in error.

Alexander Murchie, of Concord, N.H. (Murchie & Murchie, of Concord N.H., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON Circuit Judge.

This was an action brought by the administratrix of William J Allen against the Manchester Street Railway to recover damages for personal injuries and the resultant death of the plaintiff's decedent.

Allen was a motorman in the defendant's employ, and was injured on Sunday, December 21, 1913, at about noon.

The action was brought under the New Hampshire Employers' Liability Act. Laws N.H. 1911, c. 163, Secs. 1, 2. This act permits recovery for injuries suffered by employes engaged in the operation of electric cars, when such injuries arise 'out of and in the course of the employment' and are caused 'by the negligence of the employer or any of his or its officers, agents, or employes.'

The defendant pleaded the general issue and a release executed by Allen on March 14, 1914, about three months after his accident. To this plea the plaintiff filed a replication setting up: (1) That the release was not Allen's deed; (2) that it was obtained by fraud. The defendant joined issue on this replication. The trial resulted in a verdict for the plaintiff for $2,600, and the defendant brought this writ of error.

The salient facts which the jury were warranted in finding are, briefly stated, as follows:

At the time of the accident, Allen's forenoon run ended at 11:15, and his afternoon run began at 2:30. Within the intervening period he was accustomed to go home to his noon meal, riding, as of right, and in accordance with the established custom among the defendant's employes, upon the defendant's cars. His house was on the north side of Lake avenue, about midway between two regular stops. It was customary for the motorman to slow down the car in order to allow Allen, and at times members of his family, to drop off opposite his home. There was no rule of the company forbidding such slowing down of cars to permit employes to swing off.

A rule of the defendant company provides as follows:

'Cars Stopped or Running Slowly.-- When passing cars that are not moving, motorman will bring his car to a stop, and will not start until he receives two bells from the conductor. When passing a car that is moving slowly, motorman must also run slowly, ringing his gong and going very carefully.'

The negligence relied upon is the failure of the motorman on the car that struck Allen to comply with the latter part of this rule, printed in italics.

On this Sunday, the car on which Allen was riding slacked to 3 or 4 miles an hour; opposite his house Allen swung off the car, and in order to reach his house had to cross the other or west-bound track.

Just as he passed behind the car from which he had alighted, which was moving slowly away from him, a car coming in the opposite direction, which ordinarily was met further out on the trip, shot by without slacking or sounding any gong.

While the evidence shows that Allen saw or heard this car and drew back, he failed to get himself out of range; the car struck him, hurled him some 20 feet, and ran 130 feet or more before it finally stopped. The car was of steel and equipped with unusual power for winter work.

There was evidence that the car which struck him was running at the rate of 25 miles or more an hour, and was speeding up in order to take a rise further along. Allen was rendered unconscious by the blow; his skull was broken. For the next 2 or 3 months he at times had hallucinations; he spit blood; he expressed a desire to kill members of his family and himself; he walked in the snow in his bare feet; he did many other things indicating that the blow and fracture of his skull had destroyed or seriously impaired his mental grasp.

In March, however, he had made a partial recovery, and desired to resume work for the defendant. The defendant company's claim agent thereupon induced him to execute a release, paying him in cash an amount equal to what his wages would have been, and assuming also the doctor's and hospital bills. The release was not under seal. The evidence warranted the jury in finding that the claim agent knew Allen was not mentally fit to understand the nature and significance of his act in signing this release. The defendant does not argue that the evidence did not warrant the jury in finding the release invalid.

Defendant's counsel argue their assignments of error under three heads. We follow this classification.

I. Defendant contends that the release was a bar to the action unless and until set aside in equity.

As pointed out above, the defendant joined issue on the plaintiff's replication, which sets up that the release was not Allen's deed and that it was obtained by fraud. It did not demur to this replication. It made no contention that the validity of the release should not be tried as a part of this suit at law, until the evidence of the plaintiff was in. But, if we assume that the point was not thus waived, and is now open to the defendant, it is without merit. See Union Pacific Railway v. Whitney, 198 F. 784, 117 C.C.A. 392; Union Pacific Railway v. Harris, 158 U.S. 326, 15 Sup.Ct. 843, 39 L.Ed. 1003; Genest v. Odell Mfg. Co., 75 N.H. 365, 74 A. 593; Piper v. Railroad, 75 N.H. 228, 72 A. 1024. Compare the amendment of March 3, 1915 (38 Stat. 956), to section 274b of the Judicial Code, 38 Stat. 956 (U.S. Comp. Stat. 1916, Sec. 1251b), providing for equitable defenses in actions at law; also U.S. v. Richardson, 223 F. 1010, 1013, 139 C.C.A. 386.

The question of the validity of the release was submitted to the jury under instructions to the effect that the burden was upon the plaintiff to establish by clear and convincing proofs that Allen was not conscious of what he was doing in its comprehensive and substantial sense; that this required something more than a mere preponderance of evidence; that the jury must be convinced that Allen 'was not in a condition to appreciate the thing that is set up against him.'

The defendant has no cause to complain of these instructions as to the character and degree of proof required; it is...