St. Louis, I.M. & S. Ry. Co. v. Phillips, 431.

• Decision Date: 02 January 1895
• Docket Number: 431.
• Citation: 66 F. 35
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: ST. LOUIS, I.M. & S. $RY. CO. v. PHILLIPS et al.

66 F. 35

ST. LOUIS, I.M. & S. $RY. CO. v. PHILLIPS et al.

No. 431.

Circuit Court, of appeals, Eighth Circuit.

January 2, 1895

George E. Dodge and B. S. Johnson filed brief for plaintiff in error.

Oscar D. Scott filed brief for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge.

This was an action commenced in the circuit court of the United States for the Eastern district of Arkansas by James M Phillips and Tampa S. Phillips, husband and wife, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for personal injuries and loss of money and personal baggage, sustained by Mrs. Phillips while traveling as a passenger on the defendant's road. At the time of the accident the plaintiff, Tampa S. Phillips, was a widow and her name was then Tampa S. Griffith, but before this suit was brought she intermarried with her coplaintiff, James M Phillips. The accident occurred at or near Hope, in Arkansas on the morning of the 1st of March, 1893. The complaint alleges the accident was due to a defective track. The plaintiffs, anticipating that the defendant would plead in bar of the action a receipt acknowledging satisfaction of the demand signed by Mrs. Phillips, averred that the receipt was obtained from her by fraud, and at a time when, by reason of her injuries and the stimulants and opiates administered to her, she 'was in a frame of mind incapable of contracting. ' In addition to a general denial, the answer set up in bar of the action the receipt mentioned, which read as follows:

'Accounts Payable.

'The Missouri Pacific Railway Co., to Mrs. T. S. Griffith, Dr.

Address Pilot Point, Texas.

'1893.

'In full settlement and satisfaction of all claims and demands against the St. L., Iron Mountain and Southern Ry., and the Missouri Pacific Railway Co., leased, operated, and independent lines of railway, for personal injuries received while a passenger of said companies was on pass, train 51, which was derailed, and I received scalp wound, and both hands badly bruised, and shoulder and neck wrenched and bruised, and grip, hat, and cloak lost, and all personal property, all of which occurred near Hope, Ark., Mch. 1, '93. And I do hereby fully and forever release, discharge, and acquit said companies from any and all claims of whatever kind of character I may have on account of or arising from said accident or injuries in consideration of the sum of forty dollars, $40.00.

'Received, Hope, Ark., March 1, 1893, of the Missouri Pacific Railway Company, forty dollars, in full of the above account.

'(Signed)

T. S. Griffith.'

There was a trial to a jury, and a verdict and judgment for the plaintiff, and the defendant sued out this writ of error. The following is a brief summary of the leading facts which the plaintiff's testimony tended to establish: When the train was running rapidly, the chair car in which Mrs. Phillips was riding was derailed, and thrown over on its side. At the time of the accident Mrs. Phillips was in the wash room, making her toilet. She was thrown across the room, and fell to the floor, and was rendered insensible by the violence of the shock. The water tank in the wash room upset, and poured its contents over her, and to this circumstance she probably owes her life, for when the car turned over it took fire and burned up, and when she was revived by the water the room was full of smoke, and the fire was near enough to her to be felt. The side was now the top of the car, and her only means of escape was to break through the window on the top of the car, which, after repeated efforts, she succeeded in doing, when her cries for help were heard, and she was taken out. She was bruised and cut about the head, face, and hands, and her wounds were bleeding. She was taken to a house in the town near where the accident occurred, where she was waited upon by physicians, who dressed her wounds, and administered the usual remedies to allay pain and nervousness. She remained at the house until evening, when she was taken to the station, and put on a car to resume her journey to Texas. She was in pain, and was suffering from nervous prostration, and was more or less under the influence of the stimulants and narcotics she had taken. A witness who saw her in the car at this time testifies as follows: 'She looked to be pretty well used up. I noticed her on the train. She had her head bandaged up, and both hands and arms bandaged up, and she looked to be kind of dazed or unconcerned about anything; seemed as though she was suffering, and she did say she was suffering;' and the same witness says that he saw her the next morning, and 'her face was discolored on one side, very much swollen, and looked inflamed, and one eye closed. ' She had two hand satchels, which, with their contents, valued at $70, were burned, and her money, amounting to $27, and her railroad ticket, shared the same fate. After she was put on the car in the evening to resume her journey, the door of that car was locked, and she was then approached by two or three of the defendant's agents, and what then took place is thus told by her in answer to questions propounded by the defendant:

'Q. When these gentlemen called on you to present this matter that you have signed (the receipt), did you read it? A. Not a thing. He spoke to me, as well as I remember, in this way. He says, 'You have lost your baggage; you have lost your money,' and I told him that I had, and he talked about it, and he pulled out this money and told me to sign my name; that I had received the amount of $40.00. Q. Did he read this over to you? A. No, sir; he didn't read anything to me at all. Q. Did you read it yourself? A. No, sir, not a thing. I would not have no more known that I signed to a blank than I did to that, if that is it. Q. Didn't you know you were signing a

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