Mateer v. Missouri Pac. Ry. Co.

• Decision Date: 23 March 1891
• Court: Missouri Supreme Court
• Parties: MATEER v. MISSOURI PAC. RY. CO.<SMALL><SUP>1</SUP></SMALL>

15 S.W. 970

MATEER v. MISSOURI PAC. RY. CO.¹

Supreme Court of Missouri, Division No. 1.

March 23, 1891.

RELEASE — VALIDITY — INJURY TO BRAKEMAN — DEFECTIVE APPLIANCES.

1. An employe having been injured in the service of a railroad company, he agreed with the claim agent to receive $300 for his loss of time, and to get an artificial foot. The voucher which he signed was presented to him folded, so as to show only a receipt "for the above account." He signed the receipt without reading the voucher, relying on the agent's representation that the settlement was only for time lost. The voucher was in fact a release of all claims on account of the injury. Held, that the release was not binding except for loss of time, and that, without a return of the $300 received, it could be avoided by reply to an answer setting it up.

2. Where a railroad company receives a foreign car, and places it in one of its trains, and a brakeman is injured while mounting the car by the pulling out of a bolt which held a round of the ladder in place, the company is liable if, by the use of ordinary care, it could have discovered the defect, and negligence may be inferred from the nature of the defect.

SHERWOOD, C. J., dissenting.

Appeal from St. Louis circuit court; W. W. EDWARDS, Judge.

Plaintiff sues for personal injuries sustained by alleged negligence of defendant. The pleadings need not be fully recited. They fairly present the issues discussed in the opinion. The main defenses interposed are contributory negligence and a "settlement" or accord and satisfaction, by which it is claimed that plaintiff, in consideration of $300 paid to him, released and relinquished all demands for the damages sued for herein. To the last-mentioned defense plaintiff replied, stating facts to the effect that the alleged settlement was obtained by fraud and misrepresentations as to its true nature, and was therefore of no binding force. The plaintiff's evidence tended to prove that, while in defendant's employ as head brakeman, in discharge of his active duties as such, on a freight train on the Carondelet branch of the defendant's railway, in November, 1882, he was injured in the following circumstances: Plaintiff, having alighted from the cars to attend to the shifting of a switch, was returning to the top of the freight train while it was moving slowly. To do this it was necessary to climb one of the cars by means of a ladder there, consisting of a series of handles formed of iron rods at the end of the car. Each of these handles or "hand-holds" (as they are frequently called in the testimony) was affixed independently to the car by means of a bolt at each end of it, running through the wood-work to the interior of the car, where a nut held it in place. These handles were about two feet long, about two feet apart, and projected about four inches from the side of the car, forming steps or rounds of a ladder, which was reached from the ground by way of a "stirrup" or iron step on the side of the freight-car, conveniently near the end. The mishap to the plaintiff occurred by the giving way of one of these hand-holds while he was ascending the ladder. One end of it pulled out when his weight came upon it, as he grasped it in mounting the car. As he fell, he noticed the open eye-hole for the bolt after the handle had dropped out of its position. He was precipitated between the rails of the track, in the manner described, was run over, and lost half of his right foot in consequence. Regarding the alleged "settlement," plaintiff testified, in substance, that he was confined to the hospital three months after the accident; then went to the defendant's office to see about being paid for the time he had lost; that after some negotiations with the claim agent it was agreed he should receive $300 for loss of time and to get an artificial foot; that the receipt or voucher which he signed accordingly was represented to him by defendant's agents as to that effect, and was presented to him in a folded form, showing only a receipt "for the above account;" that it was hurriedly put before him, and the account (above the receipt) was not read or shown to him, and that he relied on the representations (then made) that the settlement was only for time lost by the accident, and to purchase an artificial foot. The defendant's evidence on this point tended to show that there was a full settlement of all plaintiff's demands on account of the said injury for $300, which sum was accepted by him. A receipt, signed by him, was offered by defendant, showing payment of $300 "in full for the above account," and the account preceding it recited that it was in satisfaction of all claims against defendant by reason of the injury referred to, and in release thereof. In rebuttal, plaintiff denied that the voucher mentioned had been read over or compared by defendant's employes in his presence, (as had been stated in defendant's testimony,) and generally contradicted its account of the circumstances of its execution.

The instructions to the jury were these:

For plaintiff: (1) "If you find from the evidence in this case that the plaintiff, on or about November 24, 1882, was in defendant's employ as a brakeman on its railroad; that whilst in such employ, and in the discharge of his duties as such brakeman, he attempted to climb up the end of one of the cars attached to the train on which he was serving as brakeman, and that the ladder, or one of the rounds or hand-holds of the same, gave way by reason of its being in a defective and dangerous condition for the usage for which it was intended, and that, by reason of its giving away, plaintiff fell and sustained the injuries of which he now complains; and if you find the defendant did know, or in the exercise of ordinary care on its part might have known, of the defective and dangerous condition of said ladder or hand-hold on said car prior to the accident, and that plaintiff was ignorant of the defect, and was exercising ordinary care at the time he was hurt, — then plaintiff is entitled to recover, and you should find in his favor, unless you believe that the release read in evidence is a bar to this action, as to which you are hereinafter instructed in instructions 7, 8, and 9." (2) "Although the jury may believe from the evidence that the car in question, from which the plaintiff fell, was a foreign car, that is, a car belonging to some other company or person or railroad company, and that it had been received by defendant from such other company for purposes of transportation, and that when so received the hand-hold thereon was defective, yet, if the jury believe that such defect in the car was known to the defendant at and prior to the accident, or that by the exercise of ordinary care and diligence it might have been known and repaired, the defendant is not excused by the fact that it was a foreign car, and was in a defective condition when received. Nor is the defendant excused by the fact that it had no actual knowledge of any defect in the car in question, if, by the exercise of ordinary care and diligence, it might have known of such defect prior to the accident." (3) "If the jury find for the plaintiff, they will assess his damages at any sum, not exceeding the amount stated in plaintiff's petition, which the testimony warrants, and, in determining the amount of such findings, the jury are at liberty to take into consideration all the injuries sustained by the plaintiff caused by the accident, with the personal pain and suffering and consequences resulting therefrom, whether temporary or permanent, bearing in mind that it is compensation to be fixed by them for the damages to plaintiff on account of the negligence of the defendant; but the jury will not include, in estimating the plaintiff's damages, anything for loss of time for which they find from the evidence he has already been compensated by the payment of the three hundred dollars in question heretofore paid him by the defendant." (7) "If the jurors believe from the evidence that plaintiff and defendant's claim agent merely agreed upon the amount that should be paid plaintiff as compensation for time that plaintiff had lost in consequence of his injuries, and that no agreement was made or intended to be made by plaintiff to relinquish for the sum of $300 all of his claims or demands against the defendant growing out of the injuries in question, and if you find from the evidence that the defendant's claim agent, knowing that plaintiff did not intend to release all his claims on account of personal injuries, nevertheless caused the paper read in evidence, termed a `release,' to be drawn up in its present form, and that said claim agent, or any other agent of the defendant, by any trick or artifice, procured or induced the plaintiff to sign said release, he being at the time ignorant of its contents, and ignorant of the fact that it was a release of all his claims on account of personal injuries sustained, then the court instructs you that said release does not preclude a recovery in this action; but it simply prevents you, in the event you find in plaintiff's favor, from making him...