Tindall v. Northern P. Ry. Co.

• Decision Date: 31 March 1910
• Citation: 58 Wash. 118,107 P. 1045
• Parties: TINDALL v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

107 P. 1045

58 Wash. 118

TINDALL v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

March 31, 1910

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by George R. Tindall against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Heber McHugh, John T. Casey, and Milo A. Root, for appellant.

Carroll B. Graves and Charles H. Winders, for respondent.

GOSE J.

This is a suit to recover damages for personal injuries sustained by the plaintiff on the 28th day of July, 1907, while in the employ of defendant as foreman of a switching crew. The case went to trial to a jury on the 5th day of November, 1909. At the close of the plaintiff's testimony, the defendant challenged the sufficiency of the evidence, and moved for judgment on three grounds: (1) That there was no evidence of defendant's negligence; (2) that the plaintiff assumed the risk; and (3) that it affirmatively appeared that the plaintiff had settled the claim upon which the action was based before the commencement of the suit. The motion was sustained upon the last ground, and a judgment for costs was entered in favor of the defendant. The plaintiff has appealed.

The record discloses that the appellant has had about 22 years' experience in railroad work, 5 years of which he was in the employ of the respondent; that at the time of the accident he was foreman of a switching crew consisting of five men; that in the discharge of his duties he took three cars from a side track, placed one of them on the main track and caused the other two to be switched back onto the side track against other cars; that, owing to a defective lug in the stationary car, the automatic coupler failed to connect and the two cars started toward the main track, when appellant took a scantling, two by four in dimensions, and placed it at first under the front wheel of the car, and, after that wheel had passed over it, threw it under the rear wheel; that the plank split, and a sliver penetrated his hand, causing the injury complained of. About two weeks after the accident, the appellant made a report to the respondent on one of its printed forms, stating that the injury was not caused by any defect in the machinery or appliances, or through the negligence of any of the respondent's employés. No officer or agent of the respondent was present when the appellant made the report. It was his own free and voluntary act and statement. On September 24, 1907, the appellant, desiring re-employment, as a condition precedent thereto executed a release, in which he reiterated the statements made in his first report, and released and discharged the respondent from all claim for damages for the injuries he had sustained. The release recited that there was no agreement upon the part of the respondent to continue his employment for any length of time, but that he was 'to be simply reinstated and allowed to work under the same circumstances as before the accident.' The appellant testified that, before signing the release, he had a conversation with the claim agent of the respondent, who informed him that he could not go to work until he executed the release; that he signed it in order to get work and get money to pay his bills. The appellant was thereupon reinstated, and continued in the employ of the company until April, 1908, a period of more than six months. This action was commenced in January, 1909.

The appellant first contends that the release was not pleaded, and was improperly admitted in evidence. The error, however, was without prejudice. The release was first properly admitted in evidence in cross-examination of the appellant as affecting his credibility. On redirect examination the appellant explained the circumstances attending its execution, making no claim of fraud or duress, but assigned as the sole reason for its execution the fact that he desired re-employment, and could not get it without executing the release. The facts were then before the court, and it was for it to determine its legal effect.

It is next urged that there was no consideration for the release. We cannot agree with this contention. The recoverable damage if any, was unliquidated and uncertain. That which is of value to one of the parties or a detriment to the other is a sufficient consideration to support a contract in the absence of fraud. To hold that the release is not binding upon the appellant would, in effect, destroy his power to contract. He desired re-employment by the respondent, and could not obtain...