St. Louis, Iron Mountain & Southern Railway Co. v. Carter

• Decision Date: 21 February 1910
• Citation: 126 S.W. 99,93 Ark. 589
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. CARTER
• Court: Arkansas Supreme Court

126 S.W. 99

93 Ark. 589

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. CARTER

Supreme Court of Arkansas

February 21, 1910

Appeal from Ouachita Circuit Court; George W. Hays, Judge; affirmed.

Judgment affirmed.

Kinsworthy & Rhoton, E. A. Bolton, H. S. Powell, and James H. Stevenson for appellant.

1. The eleventh instruction given by the court is erroneous because of incorporating therein the clause, "thinking it a settlement for wages for time lost on account of the injury." To avoid a written instrument on the ground of mistake, such mistake must be mutual. 74 Ark. 336. One who signs a contract without reading it, after being given an opportunity so to do, cannot afterwards complain that he signed it without having read it. 70 Ark. 512; 71 Ark. 185. The instruction is contradictory and confusing. It is impossible to tell which theory the jury adopted, whether the instrument was a release, but void because induced by misrepresentation, or a receipt for money and not a release, and not binding on account of mistake. 72 Ark. 31; 74 Ark. 437; 70 Ark. 29.

2. The court erred in giving the second instruction requested by appellant. It is abstract and misleading in declaring it to be the duty of the defendant to use ordinary care to furnish plaintiff with a reasonably safe place to work, which was a matter not in issue. 76 Ark. 69. It is further erroneous because it assumes to state to the jury the propositions upon which they may base a verdict for the plaintiff, and ignores the issue as to the validity of the release. 25 Ark. 490 493; 30 Ark. 362, 376; 51 Ark. 88; 2 Thompson on Trials, § 2328; 2 How. 486, 496; 24 Ala. 651, 662; 38 N.W. 213, 222; 52 Mo. 35; 38; 85 Mo. 96, 105.

Davis & Pace, T. W. Hardy, and Hamlin & Seawel, for appellee.

1. If the eleventh instruction was susceptible to the objections urged here by appellant, such objections will not be considered, because the objection in the lower court was general only, and the court's attention was not called to it by a specific objection. 90 Ark. 108; 89 Ark. 404; 88 Ark. 204; 89 Ark. 574; 88 Ark. 182; 89 Ark. 522; Id. 24. But it is not open to the objections urged. It plainly states that the execution of the release by appellee is not denied, and nowhere does it authorize the jury to relieve appellee from the effect of the release if he signed it merely thinking it was a settlement of wages or a receipt.

2. Considered as a whole, the second instruction does not state an abstract principle of law not applicable to the case. It requires the master in the handling and operation of its trains to use ordinary care, etc. It does not predicate the right to recover on account of any defect in the car, or in the facilities afforded him for keeping a lookout. If erroneous, however, it was invited by appellant's fifth instruction, and appellant cannot complain. 67 Ark. 531; 88 Ark. 138; Id. 129. All the law of a case cannot be presented in one instruction; hence all the instructions are to be considered as a whole, and if, when so considered, they present every phase of the law governing the case, there is no error in a particular instruction failing to carry qualifications which are explained in others. 88 Ark. 524; Id. 434; 86 Ark. 104; 77 Ark. 458; 69 Ark. 558; 67 Ark. 531; 75 Ark. 325; 74 Ark. 377; 56 Mo. 289; 162 Mo. 238; 161 Mo. 412.

OPINION

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 stayed at the hospital so long and worried myself; and when he told me that, I asked him could I depend on whet 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 vertebrae, 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 vertebrae 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, twenty-eight years old, and he sued for $ 50,000 damages. The jury returned a verdict in favor of 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 rights of the defendant. They also urge other errors in the conduct of the trial, which we will hereafter refer to.

I. At the request of the plaintiff the court gave the following instruction:

"II. 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...