St. Louis, I. M. & S. Ry. Co. v. Carter

• Decision Date: 21 February 1910
• Citation: 126 S.W. 99
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. CARTER.
• Court: Arkansas Supreme Court

126 S.W. 99

ST. LOUIS, I. M. & S. RY. CO. v. CARTER.

Supreme Court of Arkansas.

February 21, 1910.

Appeal from Circuit Court, Ouachita County; Geo. W. Hays, Judge.

Action by A. M. Carter against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Kinsworthy & Rhaton, E. A. Balton, H. S. Powell, and Jas. H. Stevenson, for appellant. Davis & Pace, T. W. Hardy, and Hamlin & Seawell, for appellee.

FRAUENTHAL, J.

This was an action brought by the plaintiff below, A. M. Carter, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for personal injuries claimed to have been sustained by him while in the employ of the defendant as a brakeman. In his complaint he alleged that the injuries were caused by the wrongful negligence of the defendant. The defendant denied all allegations of negligence on its part, and pleaded contributory negligence on the part of the plaintiff, and assumption of the risk by him. It further pleaded an accord and satisfaction of all claims for damages growing out of the alleged injuries and a release of all such claims by plaintiff. In his reply the plaintiff admitted the execution of said release, but alleged that it was not binding because it was obtained by misrepresentations, fraud, and deceit.

The testimony on the part of the plaintiff tended to establish the following facts: The plaintiff was in the employ of the defendant as a brakeman on one of its freight trains. On November 6, 1908, he was engaged in the performance of his duties as such brakeman in unloading freight from said train, after its arrival at Arkadelphia. The box car from which plaintiff was unloading freight had been stopped at the depot, and the engine attached to other cars had moved on to do certain switching. The plaintiff was inside of the car and had rolled a barrel of lard, weighing from 400 to 500 pounds, to the door of the car. While he was engaged in removing the barrel from the car, the defendant negligently and carelessly kicked or shoved a number of cars with great violence against the box car, knocking the plaintiff and the barrel of lard from the car to the ground, so that the heavy barrel of lard struck him with great force on the small of the back, injuring him very severely. In a few days thereafter his disability by reason of the injury developed more fully, and on the advice of the local physician of the defendant he went to defendant's hospital at St. Louis, Mo. He remained at this hospital from November 18, 1908, until March 2, 1909. The injury affected his entire nervous system, and while at the defendant's hospital he was under the treatment of a number of defendant's surgeons and specialists. On March 2, 1909, the chief surgeon of defendant at said hospital made an examination of plaintiff, and told him that he was completely recovered, and that there was nothing the matter with him. In the language of the witness, the surgeon said: "He would talk to me just like he would a boy of his own, and there wasn't a thing the matter with me, only I had stayed at the hospital so long and worried myself; and when he told me that I asked him could I depend on what he said, and there wouldn't be any danger hereafter; and he said, `You sure can do it.'" The surgeon then sent him to the general claim agent of the defendant, where plaintiff executed the release. There is a sharp conflict in the testimony of plaintiff and the claim agent as to what occurred at the execution of the release. The plaintiff testified that they spoke about the surgeon pronouncing him to have fully recovered, and that they then agreed that the amount of the wages that would be due to him for the time which he had lost was $325, that he then signed the release, and received a check or voucher for that amount. The release, in effect, stated that the receipt of the said sum was in full accord and satisfaction of all claims and damages growing out of said injuries. The plaintiff returned to his home at Little Rock, and in a few days he began to suffer pain from the injury, and to grow worse. He consulted his family doctor, who examined him and then called in two other physicians to examine him. These physicians testified that he had a depression in the lower portion of his spine between the fourth and fifth lumbar vertebræ, and that he had a fracture of what is known as the coccyx or tail bone. These physicians continued their examination and treatment of him for some time; and at the trial of this cause a board of four physicians was appointed to make a physical examination of the plaintiff. Two of the members of this board were selected by the plaintiff and two by the defendant; and they appeared in the case as witnesses. In addition, other physicians gave testimony upon the trial of the case relative to the nature and extent of the injury sustained by the plaintiff. The evidence on behalf of the plaintiff tended to prove that the injury had caused a great depression between the fourth and fifth lumbar vertebræ and a fracture of the coccygeal bone; that this caused a present paralysis of one of plaintiff's legs and might result in the paralysis of his urinal organs, and the muscles controlling the bowels; that the injury did and would continue to give the plaintiff intense pain and disable him from labor; and some of the physicians declared the injury permanent.

The plaintiff is a married man, 28 years old, and he sued for $50,000 damages. The jury returned a verdict in favor of the plaintiff for $5,000, less the $325 received by him. From the judgment entered on the verdict, the defendant prosecutes this appeal.

It is not contended by counsel for defendant in their brief that there is not sufficient evidence adduced upon the trial of this cause to sustain the verdict of the jury. They urge that there were certain errors committed by the lower court in giving and refusing certain instructions which were prejudicial to the right of the defendant; they also urge other errors in the conduct of the trial, which we will hereafter refer to.

1. At the request of the plaintiff, the court gave the following instruction: "(11) The execution of the release by the plaintiff, which bears date March 2, 1909, and put in evidence, is not denied. But if the jury find from the preponderance of the evidence that before, or at the time, the consideration was paid for said release, and the same was executed, the physician and surgeon of the defendant railway company made an examination of the plaintiff's injuries, and thereupon assured the plaintiff that his injuries were not permanent, but that plaintiff would be able to resume his position and duties with defendant in a short time, and, relying upon said statement to be true, he executed said release, thinking it a settlement for wages for time lost on account of the injury, but soon afterwards it was developed that plaintiff was permanently injured, and that he would never be able to perform labor in his line of employment, but that at the time of making said statements defendant's physician and surgeon either knew that plaintiff was permanently injured and misrepresented that fact, or was honestly mistaken as to extent of plaintiff's injuries, and misled him into signing said release, then plaintiff is not bound by the same, and the jury should so find."

This instruction, with the exception of the clause, "thinking it a settlement for wages for time lost on account of the injury," is in effect essentially the same as an instruction which was approved by this court in the case of St. Louis, Iron Mountain & Southern Railway Company v. Hambright, 87 Ark. 614, 113 S. W. 803, in which a state of facts was shown quite similar to those adduced in this case. The defendant urges that the instruction was erroneous by reason of the insertion of said clause. It is contended that the instruction in effect told the jury that the plaintiff would not be bound by the release either in the event it was obtained by misrepresentation or fraud, or in event the plaintiff only thought it was a settlement for wages for the time lost. But we do not think that the instruction, taken as a whole, will bear that meaning or construction. The plain meaning of the instruction is, not that the release could be avoided either by proof of fraud and misrepresentation in procuring it, or by proof that plaintiff thought it was a settlement of wages and an instrument different from a release, but a fair interpretation of the instruction would require the plaintiff to prove both that the instrument was obtained by misrepresentation or fraud, and also in the thought by him that it was a settlement for wages. It, therefore, in effect imposed upon the plaintiff the duty of proving that he thought the instrument was a...