Rider v. The Kansas City Terminal Railway Company and John Barton Payne

• Decision Date: 10 February 1923
• Docket Number: 24,234
• Citation: 112 Kan. 765,212 P. 678
• Parties: DONALD RIDER, Appellee, v. THE KANSAS CITY TERMINAL RAILWAY COMPANY and JOHN BARTON PAYNE, Director-general, et al., Appellants
• Court: Kansas Supreme Court

212 P. 678

112 Kan. 765

DONALD RIDER, Appellee, v. THE KANSAS CITY TERMINAL RAILWAY COMPANY and JOHN BARTON PAYNE, Director-general, et al., Appellants

No. 24,234

Supreme Court of Kansas

February 10, 1923

Decided January, 1923.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Personal Injuries to Locomotive Fireman--Written Release--Mutual Mistake--Fact for Jury. Where a locomotive fireman, for the purpose of assisting the crew to take water into the engine, stepped from the cab of his engine onto the covering of a manhole which was defective, and fell astride of the lid into the manhole, suffering injuries to his testicles and groin; was attended by the physician of the company, and after treatment for a month by the physician, was given a surgeon's discharge from treatment to report for duty in one day, and directed by the physician to present the discharge to the claim agent of the railroad company and arrange to go to work, both the fireman and the physician believing the injury was only temporary and that the fireman was cured; and, where the fireman presents the surgeon's discharge to the claim agent of the company, makes settlement for an amount about equal to his wages for the time he has been laid up, and is induced to sign a release relieving the company of all liability for such injury; and where it afterwards developed that the injury was of a serious and permanent nature preventing him from working for more than a year, and for the cure of which injury he finally underwent an operation, held, that a judgment supporting the general verdict of a jury finding the release to have been executed by mutual mistake of the parties will not be reversed.

2. SAME. The evidence examined, and held sufficient for submission to the jury on the question of mutual mistake as to the nature and extent of plaintiff's injury at the time of the execution of the release.

3. SAME--Proper Instructions. The instructions examined and found to have been justified by the evidence and to fairly present the matters to the jury.

O. L. Miller, of Kansas City, John H. Lathrop and S.W. Sawyer, both of Kansas City, Mo., for the appellants.

Charles A. Blair, of Kansas City, for the appellee.

OPINION

HOPKINS, J.:

Defendant appeals from a judgment of $ 2,800, awarded plaintiff by the district court of Wyandotte county on account of damages sustained through falling into a manhole.

Trial was to a jury. The principal question was as to whether or not plaintiff was bound by the release which he executed to the company. Plaintiff was a locomotive fireman for defendant at a salary of about $ 180 per month. About 9 o'clock in the evening of March 12, 1919, he stepped from his engine to assist the crew in taking water. He stepped on one edge of the cover or lid of a manhole three or four feet from the track which tipped over and he fell into the hole astraddle of the cover or lid, thereby inflicting the injuries complained of. He was taken to a near-by rest room for a short time and then conveyed to his home. The next morning he was attended by Dr. Hayward, physician of defendant; was in bed most of the time during the next two days, during which time Dr. Hayward gave him the necessary medical treatment. He was told by Dr. Hayward that as soon as he could walk he should see Dr. Pickard, the main physician of defendant at the Union Station, and on the 17th of March he visited Dr. Pickard and began receiving treatment from him. This treatment continued up until the 8th day of April, when plaintiff was given a surgeon's discharge by Dr. Pickard. Plaintiff testified that Dr. Pickard said to him that, "I was all right and O. K. to go to work; and for me to go in and see Mr. Carlson (defendant's claim agent) and get things straightened up and go to work." The surgeon's discharge certificate was as follows:

"FORM 157.

"KANSAS CITY TERMINAL RAILWAY COMPANY,

SURGEON'S DISCHARGE CERTIFICATE.

4-8-1919.

"To Jno. Carlson:

"The bearer, D. A. Rider, occupation, fireman at , has been under my professional care since 3-17-1919, and is hereby discharged from treatment, and may report for duty in 1 days.

M. W. PICKARD, Surgeon."

"This certificate to be filled out by the surgeon and given to the employe, who will present it in person to his superior officer."

Plaintiff took this certificate to Mr. Carlson and had negotiations for a settlement which were concluded April 14, at which time plaintiff received $ 180, and signed the release in question. It contained these statements:

"I do hereby compromise said claim and do release and forever discharge (naming the director-general, the Kansas City Terminal Railway Company and other railroad companies) from any and all liability for all claims for all injuries, including those that may hereafter develop, as well as those now apparent, and also do release and discharge them from all causes of actions and claims for injuries and damages, which I have, or might have, arising out of such injuries, either to my person or property, and from all claims, demands or causes of action whatsoever which I may have against them, and do hereby acknowledge full satisfaction of all such liability and causes of action, it being the intention of the parties that all matters of difference between them shall be and are hereby compromised and settled.

"It is expressly understood and agreed that the above-named sum paid is the sole consideration of this release and the consideration stated herein is contractual and not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein; and no promise or representation is or has been made relative to future employment.

"In making this settlement I do not rely upon any statement of any doctor, physician or surgeon as to what my physical condition was, is, or will be in the future, as a result of my injuries, and I do not make this settlement because of what anyone has told me about what condition is or will be.

"I have read this release. I know that I am settling for everything and that no representations of any kind have been made to me."

After executing the release, plaintiff was given a note by Mr. Carlson to the master mechanic, being told by Mr. Carlson to "Take it down to Mr. New and go to work." He took the note to Mr. New, but was not permitted to resume work. The testimony shows that plaintiff had not recovered. The following appears in the record:

"Q. Now, what was your condition--after about the 15th of March up until December? A. Well, at times I was in pretty fair condition, and at other times I was clear down, and wasn't able to get on my feet at all.

"Q. Now, what was the condition of your testicle with reference to being swollen? A. Well, at times, it would swell up considerably, then it would be lots worse at times than at other times when I was on my feet--just depend on what I done. If I done anything that I strained myself the swelling would come back and would be so bad that I couldn't walk.

"Q. Were you confined to your bed any part of that time? A. Yes, sir.

"Q. About how much? A. Well, that depends--sometimes one day at a time, and other times as high as three weeks at a time.

"Q. Who took care of you during that time? A. My wife, mostly."

The evidence further shows...