St. Louis, I. M. & S. Ry. Co. v. Morgan
Decision Date | 24 February 1913 |
Parties | ST. LOUIS, I. M. & S. RY. CO. v. MORGAN. |
Court | Arkansas Supreme Court |
Appeal from Circuit Court, Jackson County; R. E. Jeffery, Judge.
Action by W. C. Morgan against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
Appellee brought suit for damages for personal injuries alleged to have been caused by the negligence of the railroad company in running him down and striking him with one of its trains while he was attempting to remove a speeder from the track, and after discovering his perilous position. The answer denied any negligence on the part of the railroad company, pleaded assumption of risk and contributory negligence of appellee, and also set up a settlement and release of the company from liability, executed by appellee for a stated consideration. Appellee denied that he settled or compromised the matter complained of in the suit, as alleged; that he was paid $45 in consideration thereof; and that he executed a release to appellant, discharging it from further liability thereon; alleging further that, if appellant had a release, it was obtained by fraud and misrepresentation of the facts; that he was suffering greatly from the injury, and was greatly impaired in mind and body, and could neither read nor write; that appellant's agents and servants "falsely represented to him that he should retain his employment in the position of section foreman with the company, and by such false representation, which was relied upon by him, induced him to execute some paper, the contents of which were unknown to him, but was also represented to him to be an agreement further to employ him in consideration for his refraining to make claim for his injury"; that appellant knew such representations to be false, and that plaintiff believed them to be true and acted under such belief; that, if he signed the purported release, his consent was obtained through fraud and misrepresentation, avoiding same.
Appellee was 27 years old, had been railroading about a year at the time of the injury, and was section foreman of section No. 7 on appellant's railroad at Olyphant. He had been section foreman about eight weeks at the time of the injury, and related the occurrence as follows: On that morning he had gone on a speeder with Ed Riley over his entire section to the yard limits at Newport. They had tightened some bolts there and were returning. All the regular passenger trains due to go south until late in the evening had passed; did not know whether the regular freight trains had or not; could not tell what was in the yards at Newport from where he stopped. When he started back to Olyphant and reached the south end of the river bridge, he stopped and listened, but did not see any trains, went on around the point of the curve, and stopped and listened and did not hear any trains, ran about half or a third of the way around the curve and stopped again and listened and heard nothing, then moved on around the curve probably half the distance, Appellee stated that he did not know anything after he was struck until late that night, when consciousness returned to him in St. Vincent's Hospital in Little Rock. He suffered much pain, and for about three weeks there was a sunk-in and blood-shotten place in his back; that he passed some blood in his urine for two weeks.
Ed Riley stated that he was with appellee on the speeder; that, after the bridge watchman told them the train was four hours late, they went on down to mile post No. 266, where there was a bad large curve this side of it extending about 30 telephone poles; there were a lot of saplings grown up there to the edge of the dump; that they listened, upon reaching the head of the curve, about five minutes, and were sitting facing each other on the speeder, appellee being on the back and looking ahead, and witness on the front end. He also had turned his head and was looking ahead, expecting a train from the south. They stopped again halfway around the curve, and then ran on a little way, and witness looked back north and "saw the train right at us." Appellee stopped the speeder as quick as he could, grabbing the brakes, Witness first saw the train and said, "There comes a train." The engine was about two telephone poles, or a little further, distant. He did not see any of the train crew at the time. When he had the speeder off the track, all but the wheel, and Mr. Morgan was trying to get that off, the engine was not over a rail and a half distant from him. If witness had kept his natural position on the speeder, he would have been looking south as the speeder was going north. He did not know how far it was from the curve to the point where the speeder was struck, but there was a little straight track north of the speeder where it was taken off the track. He heard no alarm sounded, but saw the train. He told Morgan as soon as he saw it, and got the speeder off, all but the little wheel.
Con Riley, the engineer, said: ...
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