Western Ry. of Alabama v. Arnett

Decision Date14 April 1903
Citation34 So. 997,137 Ala. 414
PartiesWESTERN RY. OF ALABAMA v. ARNETT. [a1]
CourtAlabama Supreme Court

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by William T. Arnett against the Western Railway of Alabama. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The first count charges that while plaintiff was riding on a hand car and supporting himself by holding to a certain brace thereon one of the other section hands on said car, acting under instructions and direction of the foreman, negligently and without warning to the plaintiff, applied the brakes to the wheels of the said car, thereby suddenly checking the speed, by reason of which plaintiff's weight and body was thrown violently against said brace, causing said brace to turn, give way, or break, thereby precipitating plaintiff violently to the ground in front of said car, when said car then and there ran over plaintiff, etc.

The second count charges negligence of one S. I. Golden, section foreman, having superintendence and control of said car and the section hands thereon, in causing the speed of said car to be suddenly checked without warning to plaintiff, thereby causing plaintiff to fall and receive the injuries complained of.

The third count charges that the injury complained of was caused by reason of defects in the condition of said lever car on which plaintiff was riding, in that a certain brace or beam which had been used in supporting what is called a "running board" on said car, was insecurely fastened to said car, and by reason thereof said brace gave way, broke or turned, thereby precipitating plaintiff to the ground, from which he sustained the injuries complained of.

The fourth count charges negligence in general on the part of said Golden in operating, or causing to be operated, said car, without specifying any particular act of negligence.

The defendant demurred to each of the counts of the complaint which demurrer was overruled, but under the opinion it is unnecessary to set out these grounds of demurrer; the ruling of the court not being insisted upon in argument.

The defendant pleaded the general issue and several special pleas, setting up contributory negligence of the plaintiff and other defenses. Among the pleas setting up contributory negligence were the following: "(8) For further answer to the third count of the complaint the defendant says that plaintiff had knowledge that the brace or beam therein referred to was insecurely fastened to said car, and with this knowledge he rode upon said hand car and assisted in propelling the same." "(14) And for further answer to the complaint and each count thereof separately, defendant says that plaintiff caused or proximately contributed to the injury complained of, in this: that while he was standing on the front end of said car, with his back in the direction in which said car was moving, said car was running at the rate of four or five miles an hour, and, while he was holding onto a lever and assisting in propelling said car, he released his hold upon the same, and stooped or squatted down and took hold of a certain beam or brace on said car, which he knew or by proper diligence could have known was loose, or insecurely fastened, and by reason of said defection in said brace or beam plaintiff fell or was thrown from the car and received the injuries complained of."

The fourth and fifth pleas were as follows: "(4) For further answer to the complaint defendant says that it has paid the demand for the recovery of which this suit was brought before the action was commenced. (5) For further answer to the complaint the defendant says that for the alleged injury to plaintiff, to wit, on the 5th day of January, 1900, it compromised and settled any and all claim which plaintiff had against the defendant for said injury for a valuable consideration, and took his written release therefor, in words and figures as follows, to wit." Then follows a written instrument signed by plaintiff, which is a release and discharge in full of defendant for damages resulting from said injury; the consideration expressed being the payment to plaintiff of $25, the receipt of which is acknowledged.

The plaintiff demurred to each of the special pleas. The demurrers to the second, third and eighth pleas were sustained. The ground of demurrer to the eighth plea was as follows: "(1) Said plea does not show when the plaintiff obtained knowledge that the brace or beam on said car was insecurely fastened. (2) Said plea does not allege or show that the plaintiff had been afforded a reasonable opportunity to inform the defendant or its agent of said defects."

The assignment of error based on the ruling of the court in sustaining the demurrers to pleas 2, 3 and 8 was as follows "The court erred in sustaining plaintiff's demurrers to defendant's pleas numbered 2, 3 and 8."

The seventh and ninth pleas were stricken on motion of the plaintiff, but under the opinion it is unnecessary to set out at length these pleas or the motion.

To the fourteenth plea the plaintiff demurred upon the following grounds: "(1) It is not shown in said plea that plaintiff knew or had reason to believe that there was a safer and better way for him to perform his duty while on said car. (2) The fact that said car was suddenly jerked by the negligent act of the defendant's agent was not denied in said plea, nor does said plea set up any matter in avoidance of such allegation. (3) The facts set forth in said plea do not sustain the conclusion therein averred that the negligence of plaintiff proximately contributed to the injury complained of. (4) Said plea fails to aver that it was the duty of plaintiff to hold onto the lever or crank of said car at the time he received the injuries complained of. (5) Said plea does not show when the plaintiff obtained knowledge that the brace or beam on said car was insecurely fastened. (6) Said plea does not allege or show that plaintiff had been offered a reasonable opportunity to inform the defendant or defendant's agents of said defect. (7) Said plea is not an answer to the first count of the complaint."

The demurrer to the fourteenth plea was sustained. The demurrers to the pleas other than those just above referred to were overruled.

To the fourth and fifth pleas the plaintiff filed a general replication, taking issue thereon, and also the following special replications: "(1) And for replication to pleas 4 and 5, respectively, plaintiff says that shortly after he received the injuries complained of in his complaint, and while at his home confined to his bed on account of said injuries, and while suffering great and intense pain therefrom, an officer and agent of the defendant corporation came to plaintiff's home, and stated to him substantially as follows: That one Smith, who plaintiff avers was then the president of the defendant corporation, desired to make plaintiff a present of twenty-five dollars; that plaintiff was a white man, and he felt sorry for him, and thereupon handed to plaintiff $25 in money. and then and there stated to plaintiff that the defendant company would look after him when he got well, and give him a permanent job when he got up, and thereupon produced a paper which said officer or agent held in his hand, and requested plaintiff to sign. Plaintiff thereupon asked what the paper was, to which said officer or agent replied that it did not amount to anything that it was simply a paper stating that plaintiff had no ill will or hard feelings against defendant company; that plaintiff did not read said paper and did not know the contents thereof, but, acting and relying upon the statements of said officer and agent, under the circumstances hereinabove set forth, signed the same. Plaintiff had no knowledge of the contents of said paper, and he signed no other paper purporting to be a release of said claim except as hereinabove mentioned, nor did he ever receive any money from the defendant in payment of his claim, nor has said claim ever been paid or satisfied in any way."

To this replication the defendant demurred upon the following grounds: "(1) Because the matters therein set forth are not sufficient to avoid the legal force of the facts set forth in said pleas. (2) Because it attempts to vary by parol the terms and conditions of a written contract. (3) Because the facts therein set forth show that it was plaintiff's duty to have read said paper before signing the same, and that he is bound by the same whether he read it or not. (4) Because it does not show that plaintiff could not by reasonable and proper diligence on his part have known the contents of said paper. (5) Because the facts therein set forth show that plaintiff is bound by the conditions of the paper that he did sign, whether he knew the contents thereof or not. (6) Because said replication does not show that plaintiff has ever offered to return to the defendant the consideration set forth in the release set up in said pleas. (7) Because it does not show that plaintiff could not read or was otherwise prevented from ascertaining the contents of said paper."

The defendant filed the following rejoinder to the plaintiff's special replication to pleas 4 and 5 "Comes the defendant and for rejoinder to plaintiff's replication to pleas Nos. 4 and 5 says that plaintiff was a man of intelligence and education, and could read and write and was fully capable of making a contract rationally, and that while in this condition he received the payment referred to in defendant's pleas Nos. 4 and 5 and executed the release set out in plea 5, and at the time he received it he either knew or ought to have known the contents of the said release set forth in defendant's plea No. 5, and defendant avers that...

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