Pederson v. Seattle Consol. St. Ry. Co.

• Decision Date: 14 April 1893
• Citation: 33 P. 351,6 Wash. 202
• Parties: PEDERSON v. SEATTLE CONSOLIDATED ST. RY. CO. [1]
• Court: Washington Supreme Court

33 P. 351

6 Wash. 202

PEDERSON v. SEATTLE CONSOLIDATED ST. RY. CO. ^[1]

Supreme Court of Washington

April 14, 1893

Appeal from superior court, King county; T. J. Humes, Judge.

Action by Peter Pederson against the Seattle Consolidated Street-Railway Company to recover for personal injuries. Judgment for plaintiff for $2,000. Defendant appeals. Reversed.

Julius F. Hale, for appellant.

Will H Thompson, Edward P. Edsen, and John E. Humphries, for respondent.

ANDERS C.J.

On September 16, 1890, at about 8 or 9 o'clock in the forenoon, the respondent entered upon one of the appellant's electric street cars, in the city of Seattle to ride to North Seattle. Before reaching the destination of the respondent, and when on Front street, about 50 feet north of Blanchard street, this car, while going down an incline collided with a wagon belonging to the appellant, which was standing on the track in charge of two men who were upon a scaffold erected upon the wagon, engaged in repairing the trolley wire. It was an open car, and the respondent was sitting on the second seat from the front. Before the car reached the wagon, the respondent, thinking there was going to be a collision, became greatly excited and jumped off the car, and fell upon the ground with such force that the result was an extra capular fracture of the right hip. Soon after the accident happened, the respondent, at the suggestion of Dr. Coe, who was a physician and surgeon for the railway company, was conveyed to Grace Hospital, where his injuries were treated, and where he was taken care of for a period of 6 1/2 months at the expense of the appellant. Subsequently to his discharge from the hospital the respondent brought this action for damages, and alleged in his complaint that the injury therein mentioned was caused by the negligence and carelessness of the railway company, in causing its construction wagon to be upon its track, and in propelling its car against the same, whereby he was thrown with great force and violence from said car, upon the street. The answer of the appellant was (1) a denial of negligence; (2) an allegation that if the respondent was injured it was by reason of his own negligence; and (3) that the respondent on the 16th day of June, 1891, in consideration of the payment of certain expenses for the respondent by the appellant, which the latter then and there assumed to pay, and did pay, entered into an agreement, in writing, whereby he released and discharged the appellant from any obligation growing out of said alleged injuries. The respondent, in his reply, admitted signing the release, but alleged that at the time of signing the same he did not know or understand its purport; that he did not and could not read the same at the time he signed it; that said instrument was not read or explained to him by any one; that he was not then, or at any time, informed that the effect of signing the said instrument was a waiver of his claim against the appellant for damages; that by reason of the condition of his mind and body at the time he was incapable of comprehending the import or meaning of said instrument; and that the same was procured from him through the fraud and artifice of the appellant, with the intent on the part of appellant to defraud him out of his just claim against the appellant for compensation and damages for said injuries. A trial was had by a jury, resulting in a verdict for plaintiff for $2,000, for which sum, after overruling a motion for a new trial, the court rendered judgment.

Upon the issues raised by the pleadings in this case it was incumbent upon the respondent, in order to succeed, to establish two facts: First, that the appellant was guilty of negligence proximately causing the injury of which he complains; and, second, that the release which he signed was procured by the fraud and artifice of the appellant, or that by reason of his mental condition at the time he was incapable of comprehending and understanding what he did, or the effect of his act. The first ground of error assigned by the appellant is that the evidence is insufficient to justify the verdict, in both of these particulars. We will examine the latter proposition first, for the reason that if the proof is not sufficient, under the well-recognized principles of law, to support the finding of fraud, a new trial must be awarded, although, as matter of fact, the appellant was guilty of the negligence charged in the complaint. As a general rule, the presumption of law is that men act honestly, and not fraudulently; and hence, where fraud is alleged, it must be clearly and satisfactorily proved by him who alleges it. Upon this subject, Mr. Bigelow, in his valuable work on Fraud, at page 123, says: "The burden of proof in regard to an allegation of fraud, coming either from the plaintiff or from the defendant, rests upon the party who makes it. If the plaintiff's case, originally or on replication, is that the defendant has defrauded him in a particular transaction, or that the defendant is in privity with one who has defrauded him, the burden of proof is upon the plaintiff; he must prove the fraud,-which means that he must show it by clear and satisfactory evidence, such as will preponderate over presumption, or evidence on the other side. If, on the other hand, the defense to a suit is that the plaintiff defrauded the defendant in the supposed cause of action, or that the plaintiff is privy to one who defrauded him, the burden of proof is upon the defendant; he must prove the fraud,-which means the same thing as when the burden rests upon the plaintiff." Where the purpose is to set aside a deed, or to impeach a written instrument, on the ground of fraud, by oral testimony of a party to the instrument, the rule above stated is especially applicable, and is rigidly adhered to by the courts. In Parlin v. Small, 68 Me. 289, where the claim set up by the plaintiffs was that, in purchasing a farm, they were defrauded by the defendant conveying a less amount of land than was bargained and paid for by them when they took their deed, when the plaintiffs undertook to establish the alleged fraud entirely by their own testimony the court said: "The plaintiff must prevail, not only upon a preponderance of evidence, but such preponderance must be based upon testimony that is clear and strong, satisfactory and convincing." In Gruber v. Baker, 20 Nev. 453, 23 P. 858, the supreme court of Nevada, in speaking of the amount of evidence required to establish fraud, used this language: "What amount or weight of evidence is sufficient proof of a fraud is not a matter of legal definition. The proof, however, must be satisfactory. It should be so strong and cogent as to satisfy the mind and conscience of a common man, and so to convince him that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest. It need not possess such a degree of force as to be irresistible, but there must be evidence of tangible facts from which a legitimate inference of fraud may be drawn. As an allegation of fraud is against the presumption of honesty, it requires stronger proof than if no such presumption existed." The case of Rose v. Railway Co., (Pa. Sup.) 12 A. 78, was an action for negligence, charging that the defendant had, in operating its street car, run against, and injured, the plaintiff. One of the defenses relied on was a release signed by the plaintiff; and the claim of the plaintiff was, as here, that he did not know what he was signing,-in other words, that misrepresentations were made to him, and that he did not know he was...