Welch v. Alabama & Vicksburg Ry. Co.

• Decision Date: 17 October 1892
• Parties: T. W. WELSH v. ALABAMA & VICKSBURG RAILWAY CO
• Court: Mississippi Supreme Court

11 So. 723

70 Miss. 20

T. W. WELSH v. ALABAMA & VICKSBURG RAILWAY CO

Supreme Court of Mississippi

October 17, 1892

FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.

Appellant Welsh, was a switchman in the employ of appellee, the Alabama & Vicksburg Railway Co., his duty being to ride upon the switch-engine, and open and close switches and couple cars. His usual station was on the "foot-board" of the engine. This appliance, which occupies on switch-engines the position occupied on ordinary engines by the pilot, is a level board or platform, a step above the ground, firmly attached to the front of the engine, and intended mainly for the use of the switchman. Welsh was injured by falling from the foot-board, while engaged in the performance of his duties, and brings this action to recover damages, claiming that his fall was caused by the insecure fastening of the foot-board, which caused it to give way when he stepped upon it.

In addition to the general issue, the defendant pleaded that it had fully satisfied plaintiff's demand, and, in support of the plea, introduced in evidence a release signed by plaintiff, reciting that, in consideration of $ 15 paid to him by the railway company, he released it from all liability to him because of such injury. Plaintiff, however, replied denying that he ever executed such acquittance, or that he did so knowing its purport, and alleged that, if executed by him, his signature was obtained by the fraud of defendant's officers in leading him to believe he was signing a "time-check" for money due to him as wages. Plaintiff, as to this, testified that he lost fifteen days from his work, and that the sum paid was supposed by him to be his half-pay during that time; and that he did not sign any release, but merely wrote his name across a check presented to him by a superior officer of the company, and which was represented to him as being a "discharge check for fifteen days, at one dollar a day." He further testified that he did not read the paper signed by him, but took it immediately to the ticket-office and had it cashed. He denied that the signature to the release was genuine, and denied that he had ever seen that paper.

The officials of the company, on the other hand, testified that the release was signed by plaintiff, and that he was fully aware of its purport, and that no unfair means were used to obtain it.

On the trial the court gave the following instructions for the plaintiff:

1. "If the jury find for the plaintiff, the measure of damages is not only the pain and suffering, loss and injury if any, already sustained, but also the disability, injury and suffering, if any, which will thereby be occasioned in the future."

2. "It was the duty of the defendant company to provide engines with suitable and safe appliances thereto, so that its workmen or switchmen, in the performance of their duty to the company, could safely get upon, or stand upon, the foot-board while engaged about their work in the exercise of due caution, and if the jury believe from the evidence that the plaintiff, while at work for said company as a switchman was injured through the neglect of the company to furnish such safe and suitable appliances to its engine which plaintiff could safely get upon or stand on while pursuing the ordinary course of his duty with due care, and without any fault of his, then the jury will find for the plaintiff, unless the jury believe that plaintiff has already compromised or settled with defendant for such injury."

3. "If the jury believe from the evidence that plaintiff was induced to sign a release of his claim for damages by representations of defendant's agents that he was merely signing a receipt for fifteen days' half-pay for the time he was sick, or if he signed it under such a belief induced by defendant's officers and agents, or if they believe that he did not sign it at all, then it would not operate as a bar to this action."

It is not necessary, in view of the opinion, to set out in full the defendant's instructions. Touching the matter of the release, they declared that, if signed by plaintiff, it would bind him, if there was no fraud used to induce its execution; that, unless he was fraudulently imposed upon, he could not avoid the effect of the release, even though he did not read it, and supposed it was a receipt for wages.

There was a verdict and judgment for plaintiff for $ 500, but, on motion of defendant, this verdict and judgment were set aside, and a new trial awarded, to which action of the court the plaintiff excepted.

On the second trial the evidence was the same as on the former trial, the stenographic notes of the testimony having been read by consent, and the court gave a peremptory instruction for defendant, refusing all the instructions asked by the plaintiff. There was judgment accordingly. Motion for new trial overruled. Plaintiff appeals.

The opinion contains a further statement of the case.

Judgment reversed.

Gibson, Henry & Bien, for appellant.

To the contention that, the injuries having resulted from the negligence of a fellow-servant the defendant is not liable we cite constitution 1890, § 193. ...