Morstad v. Atchison

• Decision Date: 01 February 1918
• Docket Number: No. 1828.,1828.
• Citation: 23 N.M. 663,170 P. 886
• Court: New Mexico Supreme Court
• Parties: MORSTADv.ATCHISON, T. & S. F. RY. CO.

23 N.M. 663

170 P. 886

MORSTAD

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

No. 1828.

Supreme Court of New Mexico.

Feb. 1, 1918.Rehearing Denied Feb. 23, 1918.

Syllabus by the Court.

A single act of negligence, except in rare instances, is insufficient to establish incompetency of a fellow servant.

(a) Section 16 of article 20 of the Constitution, abrogates the common-law fellow-servant doctrine in this jurisdiction as applied to railroads. (b) A complaint which charges the master with negligence in the employment of an incompetent fellow servant, and which charges the fellow servant with negligence, is a complaint alleging two concurrent causes operating to effectuate an injury, and proof of either will be sufficient to entitle the plaintiff to recover.

Ordinarily it is the duty of every person to read a contract before he signs the same, if he can read, and it is as much his duty to have the same read and explained to him before he executes it, if he cannot read or understand it. If he fails in this regard, he will ordinarily be estopped to deny his contract. An exception to the rule, or what may be termed another and different rule, exists, and has application in certain circumstances. It is to the effect that where fraud or misrepresentation enters into the contract, the same may be avoided by the defrauded or deceived party under proper circumstances.

It is competent to show by parol that the consideration for a contract was greater or less than or different from the one expressed.

A question not raised in the court below will not be considered on appeal.

Although the trial court erroneously refused a motion of the defendant for an instructed verdict in its favor, for which the cause will be reversed, still where it does not appear from the record that the plaintiff may not be able to show upon another trial his right to a recovery, it is proper to remand the case, with instructions to award a new trial, rather than to remand the case, with instructions to enter the judgment which should have been entered in the first instance.

Additional Syllabus by Editorial Staff.

Ordinarily “incompetency” relates to incapacity, either physical or mental, to perform the act in question, while “negligence” ordinarily implies the ability and competency to do the act in question, accompanied by a failure and neglect to properly perform the same.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Incompetency; Negligence.]

Appeal from District Court, Grant County; Neblett, Judge.

Action by Andrew Morstad against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, motion for new trial denied, and defendant appeals. Reversed and remanded, with instructions to award a new trial.

Ordinarily “incompetency” relates to incapacity, either physical or mental, to perform the act in question, while “negligence” ordinarily implies the ability and competency to do the act in question, accompanied by a failure and neglect to properly perform the same.

W. C. Reid, of Albuquerque, and R. E. Twitchell, of Santa Fé, for appellant.

H. D. Terrell and Barnes & Royall, all of Silver City, for appellee.

PARKER, J.

The original opinion in this case is unsatisfactory to both sides, and it does not meet with the entire approval of the court. It will therefore be withdrawn, and the case will be discussed anew.

This is an action for damages for personal injuries suffered by the plaintiff while in the employ of the defendant railroad corporation. The plaintiff and a fellow servant, Knight, were engaged in unloading bridge timbers from a car. They were working upon a trestle extending from the car to the place on the ground where the timbers were being piled. They were using cant hooks, and each took hold of a timber, and had raised it nearly to the point where it would turn over, when the cant hook of the fellow servant, Knight, slipped off of the timber, allowing the whole weight of the timber to fall back against the cant hook in the hands of the plaintiff, thereby throwing him off the trestle, from which he fell to the ground, sustaining alleged personal injuries to his knee and leg. The plaintiff alleged that the fellow servant was inexperienced in the use of cant hooks, and that the work was such as required skill and experience; that the said fellow servant, by reason of his incompetency, inexperience, and negligence, failed to take a secure and proper hold upon the timber with his cant hook, and, on the contrary, negligently, carelessly, and by reason of his inexperience and incompetency failed to gain and retain a secure hold upon the timber, and negligently held the handle of his cant hook at an acute angle to such timber; that by reason thereof the said cant hook loosened its hold upon such timber and the handle thereof slipped therefrom, thereby throwing the plaintiff to the ground and injuring him; that the direct and proximate cause of the injury was the negligence of the said fellow servant as aforesaid, and the negligence of the defendant in assigning said inexperienced and incompetent fellow servant to perform labor with the plaintiff.

The defendant answered, denying the negligence, carelessness, incompetency, and inexperience of the fellow servant of plaintiff, pleading by way of defense a contract of settlement and release of plaintiff's cause of action. Plaintiff replied to the answer, and alleged that at the time of the execution of the contract of settlement and release of the cause of action he was in such a weak, confused, dazed, and irrational condition as not to fully know and comprehend what he was doing, and that he was incapable of understanding or comprehending what he was doing; that he was unable to read the paper, and did not read the same, and did not know the contents thereof, but believed that it was an application for transportation to the defendant's hospital at Las Vegas; that the foreman of defendant so represented the paper to him; that the said paper was signed without receiving any consideration whatever.

Plaintiff produced proof that the fellow servant took hold of the timber with his cant hook at an acute angle instead of at a right angle, and that the cant hook slipped off, and the weight of the timber coming upon him threw him off the trestle, and that he was injured. At the close of the plaintiff's case the defendant moved for an instructed verdict in its favor, upon the ground that the plaintiff had produced no evidence to show either negligence of the defendant in employing an incompetent fellow servant and assigning him to labor with the plaintiff, or any evidence of negligence on the part of the fellow servant, and that the evidence showed that the injuries sustained by plaintiff were the result of a mere accident incident to the ordinary risks of his employment. This motion was overruled. The defendant then put on testimony describing the occurrence, resulting in the injury of the plaintiff, and introduced the contract of settlement, together with the testimony of witnesses as to the circumstances under which it was executed by the plaintiff. The plaintiff in rebuttal testified as to the circumstances under which he signed the release. At the close of the case defendant renewed its motion to instruct a verdict upon the same grounds contained in its former motion, with the additional ground that it then appeared that the cause of action had been released and discharged. This motion was likewise overruled by the court. The court thereupon submitted the case to the jury under instructions, and a general verdict was returned in favor of the plaintiff for the sum of $2,950, and special findings were made to the effect that the plaintiff was injured by the negligence of an employé of the defendant; that the plaintiff did not assume the risk of such injury; and that the plaintiff did not contribute to the injury by his own negligence.

A motion for a new trial was filed and overruled, and judgment was rendered upon the general verdict, from which judgment the defendant has appealed.

[1][7] 1. Our first examination of the pleadings, proofs, and instructions of the court below resulted in the view that this was an action based upon negligence of the master in the employment of an incompetent fellow servant, and not an action based upon the negligence of a fellow servant. Careful consideration of the case has led us to the conclusion that the action is based upon both the negligence of the master in employing and assigning to work with the plaintiff an incompetent servant, and upon the negligence of the said fellow servant. There is a palpable inconsistency between incompetency and negligence. Ordinarily incompetency relates to incapacity, either physical or mental, to perform the act in question. On the other hand, negligence ordinarily implies the ability and competency to do the act in question, accompanied by a failure and neglect to properly perform the same. In some more or less rare instances, the negligence of the fellow servant may furnish evidence, if it is habitual or gross, of the incompetency of the servant. In our former opinion we concluded that there was no substantial evidence of negligence on the part of the master in employing an incompetent fellow servant, for the reason that a single act of negligence, excepting in rare instances, is insufficient to establish incompetency, citing 1 White, Personal Injuries on Railroads, § 261; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338; Melville v. Mo. River F. S. & G. R. Co. (C. C.) 48 Fed. 820; East Line & Red River R. Co. v. Scott, 71 Tex. 703, 10 S. W. 298, 10 Am. St. Rep. 804; Sullivan v. N. Y., N. H. & H. R. Co., 62 Conn. 209, 25 Atl. 711; and State v. Roderick, 77 Ohio St. 301, 82 N. E. 1082, 14 L. R. A. (N. S.) 704, and note. With this conclusion we are entirely satisfied. There is no substantial evidence in the record to show that the defendant was negligent in...