Pattison v. Seattle, R. & S. Ry. Co.

• Court: Washington Supreme Court
• Writing for the Court: DUNBAR, C.J.
• Citation: Pattison v. Seattle, R. & S. Ry. Co., 116 P. 1089, 64 Wash. 370 (Wash. 1911)
• Decision Date: 01 August 1911
• Parties: PATTISON v. SEATTLE, R. & S. RY. CO.

116 P. 1089

64 Wash. 370

PATTISON v. SEATTLE, R. & S. RY. CO.

Supreme Court of Washington

August 1, 1911

Department 2. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by O. A. Pattison against the Seattle, Renton & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 55 Wash. 625, 104 P. 825.

Morris B. Sachs, for appellant.

Robert A. Devers and Milo A. Root, for respondent.

DUNBAR C.J.

On the 5th day of August, 1906, while plaintiff was upon one of defendant's cars proceeding from Columbia station southerly to Rainier Beach, at or near Dunlap station, the car upon which plaintiff was collided with another car upon defendant's railway line, and plaintiff was injured. This action was brought by plaintiff to recover damages alleged to have been sustained by him, in the sum of $5,000, less the sum of $600, acknowledged to have been paid to plaintiff by the defendant.

Defendant by answer alleged affirmatively that, on the 3d day of October, 1906, and prior to the commencement of this action plaintiff made, executed, and delivered to defendant a release, in words and figures following, to wit 'Know all men by these presents, that O. A. Pattison, of Columbia, in the county of King, and state of Washington, in consideration of the sum of six hundred dollars and treatment till cured of this trouble by C. L. Norbom, medical gymnast, to him paid by Seattle, Renton & Southern Ry. Co., a corporation, duly organized under the laws of the state of Washington, the receipt whereof is hereby acknowledged, do release, acquit and forever discharge the said Seattle, Renton & Southern Ry. Co. of and from all claims and demands, actions and causes of action whatever, for damages, costs, loss of service, expenses and compensation, on account of or in any way growing out of, and hereafter to grow out of accident at Atlantic City on August 5, 1906, and do hereby for my heirs, executors, and administrators, covenant with said Seattle, Renton & Southern Ry. Co. forever to indemnify and save harmless the said Seattle, Renton & Southern Ry. Co. against all claims and demands of all persons for damages, costs, expenses, or compensation for, or on account of, or in any way growing out of said accident. (Duly signed and witnessed.)' That at the time of the making of the delivery of said release defendant paid to the plaintiff the sum of $600, and at various times between the 3d day of October, 1906, and the 24th day of March, 1908, the defendant paid to C. L. Norbom the sum of $771, for treatment of plaintiff by said Norbom as mentioned in said release, and also that the defendant had paid to divers physicians for medical examinations of said plaintiff the sum of $17.50.

Plaintiff's reply alleges that, immediately after the injury to the plaintiff, as set forth in the complaint, defendant sent to plaintiff a physician and the said C. L. Norbom, medical gymnast, and the said physician and medical gymnast examined the plaintiff as to the extent and nature of his injuries and then and there advised plaintiff that his injury was not of a serious nature and would not prove permanent, that they could and would effect a cure of said injury within six months, and that plaintiff's only loss by reason of such injury, in case he would sign said agreement, would be a loss of part of his time during the period necessary to effect a cure; that at the time of signing said agreement plaintiff did not know the extent or nature of his injury, and had no means of knowing the same, other than through the statements of said physician and gymnast, and that plaintiff believed the statements of said physician and medical gymnast to be true, and relying upon the same signed said agreement; that the said statements and representations were not true, and were made for the purpose of inducing the plaintiff to sign said agreement, and the defendant so knew at the time of making such agreement; that after the signing of such agreement the plaintiff took treatment of said...