Summary
Appeal from Jackson Circuit Court; R. E. Jeffery, Judge;
STATEMENT BY THE COURT.
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, plead 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 and 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 upori- 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, Ms consent was obtained through fraud and misrepresentation, avoiding same.
Appellee was twenty-seven years old, had been railroading about a year at, the time of the injury, and was section foreman of section number seven 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 Biley 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 evemng had passed; didn’t know whether the regular freight trains had or not; couldn’t 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 didn’t hear any trains, went on around the point of the curve and stopped and listened and didn’t 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 where he stopped again and didn’t hear or see any trains, and then moved on two or three telephone poles when we saw the train. Ed Biley saw it first and says: “Will, there is a train right behind us.” I reached down and threw the brake on and stopped as quick as I could without throwing the wheel off; I looked back over my shoulder and saw the train, saw the engineer standing up in the cab looking ahead; I stopped the car as soon as possible, got the pick and laid it down, stepped off the end of the ties right by the side of the track and stepped back on the end of the ties, picked up my end of the car and Ed Biley picked up his end, and we started off with it; this little wheel caught on the rail. There were a lot of tools in the car, which made it heavy in the center, and wMch made the little wheel drop down and it looked like the engineer was stopping. I tMnks to myself, if I leave that on there it is liable to cause the death of several people; and I think I can get it off; slide it off. I reached up and was stooping over, lifting on the axle of the little wheel, and while I was doing that the cow catcher struck the little wheel and struck me, and I have been injured ever since. When I got off, Ed Biley got hold of the front wheel on my right hand side and I got hold of the rear of the speeder, and we both lifted on that side until we got it clear of the track; that took us about four feet or a little more from the outside rail; if I had remained where I set the end of the car down, the engine would not have struck me.
Q. Why go back?
A. Simply because I knew if I didn’t take that wheel off it was liable to cause a wreck and kill or injure several people. This was a passenger train and the wheel was right jam against the rail on the inside of the track; the wheel was on the east side of the west rail. There is timber all along there and a man oh a speeder can not see more than two telephone poles behind him. This is a straight track down there a little ways to the curve. We were struck along about mile post 265 or 266.
Appellee stated that he didn’t know anything after he was struck until late that night when consciousness returned to him in St. Vincent’s hospital in Little Bock. 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 Biley stated that he was with appellee on -the speeder, and 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 thirty 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 half way 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, and we started to take it off. He threw the back end down at the endge of the track and the little wheel hung. We got it all off but the little end of the wheel and he went around to get it off when the train hit him. He was stooping down to get the little wheel over the rail, this wheel being hung on the inside of the rail. I was helping Mm to get it off at the' time he was struck; he had stooped down to pick up the wheel; the train knocked him down by the car and knocked me down the dump. I got up and got back to him and got hold of him. After the train got by it stopped and backed up and took us on to Bald Knob. He was hurt in the back and was unconscious. They took him to the doctor’s office, reached there about 12:30. The doctor dressed his wound. It looked like blood was running out where the pilot hit him about the region of the kidneys, just above the hip bone. They carried him from there to the infirmary at Little Bock. Witness first saw the train and said, “There comes a train.” The engine was about two telephone poles, or a little further distant. He didn’t 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 looHng 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 they got the speeder off, all but the little wheel. The speeder has two large wheels that run on the same rail wMle the little wheel goes out on the other rail, the small wheel being the guide wheel; the heavy part of the speeder is built over the two large wheels and the little wheel running on the other rail is stretched out from the speeder by two rods; when we got the two wheels .and the body of the speeder off, we had the most of the weight of the speeder off the track. Got the speeder clear of the track, with the exception of the little wheel, which hung on that rail. When we got the speeder off, all except the little wheel, Mr. Morgan was clear of the track, and of the train and saw the train before he went back; he saw the train coming when he started back. When he looked back he got clear of the track, and after that stepped back and got hold of the little wheel, but he did not step over the rail then. It was a passenger train, said to be the third section of No. 5. After the train struck Mr. Morgan it passed by us about three car lengths. It never touched me at all.
Con Biley, the engineer, said when there are three different sections of a running train, there is a green flag in the day time and a green light at night carried by the preceding sections that gives notice of the following section; when I came around the curve on the north end of the White river bridge I saw an object on the track 'about a mile ahead of me, and thought it was section men working on the track. When I got a little bit closer I blew four blasts of the whistle, thinking they would get off, and went a little bit farther and blew a crossing whistle; when in about 600 or 700 feet from them I began sounding danger whistle and also shut off steam and applied brakes to stop train. When I commenced sounding danger whistle they saw me and jumped off the car and jerked the car off of the track and the small wheel of the car caught on the inside of the rail and they left the car and ran away from it; when they first jerked the car off I thought they were going to take it off, and they had time to do so if they had not run away from it. Mr. Morgan ran back and grabbed the lever that runs from the large wheel to the small wheel, and as he did so he stepped upon the track and still had hold of the lever, but before I got to him he stepped out of the track and never let go of the lever and about that time I struck the wheel, and although I was slowed down at that time to about six or eight miles an hour, but when he came back on the track the second time I did not have time to stop. When I first started to stop I could have stopped if they had not got off the track, but they had already got off the track themselves and I thought they would take the car off; they would have gotten the car off if they had not run away from it. When he went back I could not have stopped the train. In regard to section men and men on speeders as to looking out for trains, they have a time card and know what trains are due and also have a book of rules and know that trains carry signals for following sections. This was the third section of No. 5 and I was carrying signals for the fourth section following me. A speeder would not wreck a train because it is too small. I had about a 90-ton engine pulling a passenger train with nine coaches, a fast through train, and we were running about 40 to 45 miles an hour. I do not see how it would be possible for the small wheel of a speeder to wreck a train. I judge that the speeder wheel was about eight inches high. I have never struck a speeder before.
The fireman, D. T. Owens, stated: As we came around the curve, I saw the speeder with a couple of men on it, and told the engineer and he blew the whistle; they did not show signs of getting off, and we slowed down and kept blowing it and were pretty close before they showed signs of hearing it, and finally they got off the speeder and got the speeder, all but the little wheel, off and Mr. Morgan got back to get it off and we hit the wheel. I thought they were in the clear and it seemed to me they got the car off. I was on the left hand side and Mr. Morgan was on the right hand side. They were in the clear the last time I saw them. The train gave road crossing whistles and they did not seem to hear it, and we blew danger whistles, which is just one whistle after another. The men were in the clear the last time I saw them and in safety. I suppose after we struck the speeder we went by about three car lengths. There were nine coaches in the train.
Appellant introduced in evidence a full release, signed by appellee and witnessed by John L. Riley and R. L. Higginbotham, for the receipt of $45 which was acknowledged to have been paid. Appellee was in the hospital a month and during a part of the time walked on crutches. During Christmas week he told the doctor he wanted to go home and stated: The doctor pronounced me all right; wrote a letter and told me to take it to the claim agent, over the union depot and said he would settle with me.
Q. Told you you were all right, did he?
A. Yes, sir.
He left Little Rock on the night of the 28th, and he suffered pain continuously from that time on, and was continuously taking treatment and had been under the care of a physician. Before leaving, he went to the claim agent, as he was directed by the doctor to do and admitted that he attempted to sign the release; said the doctor told him he was able to go back to work; that he felt like he was injured, but after the doctor told bim he was all right and the claim agent told him the doctor said he was all right he thought he might get well. That the claim agent told him he couldn’t get anything out of the company, but that he could get his job back again permanently. That he asked the claim agent how long the job would last and he replied: “As long as you want it.” The claim agent then proposed to allow bim straight time during the time he was in the hospital and let him have his job back permanently, and he believed he would do what he said and he agreed to it.
Q. State whether or not you relied upon these statements made to you by Mr. Higginbotham at that time.
A. Yes, sir; that is I thought he would do what he said. That is, I signed that on the promise of the steady job; permanent job.
Q. What did he tell you as to the contents of that paper?
A. He didn’t tell me anything.
Q. He didn’t read it to you?
A. No, sir; didn’t read it to me; he handed it to me and asked me if I could read it; handed it to me and I told him, “No, sir; I can’t read it.” He said, “Well, you know what it is?” I says, “I don’t know whether I do or not.” He says, “Well, it is just like, just what you say,” and that is the last of it, never had no more with it.
Q. Just like you say?
A. Yes, sir, just like you say. I told Mm about what I thought I ought to have. The $45 was for what time I spent in the hospital from the first of the month to the last. I don’t know whether Mr. Higginbotham called up Mr. Cherry, but he called up Mr. B. C. White, the division roadmaster, who was above Cherry. He called up White and asked Mm if he had my job, and if I could go to work when I got back and WMte told Mm, “Yes, he can go to work any time he gets there, he has a job in the morning if he was there to go to work.” And the claim agent told me what he said. And after the claim agent wrote my pass he wrote a letter to Mr. White. I gave it to Mr. WMte and he started to write me a pass. I told him. I already had a pass. He said, “All right, I will see Cherry tomght, he is in town, and I will tell him to put you to work the first of the month. I told Mm all right, that it would be the first of the month before I wanted to go to work. And he said, “All right, I will see Cherry tonight and have him put you to work the first of the month. ” I got the $45.
He further stated that the $45 he received was for the time he spent in the hospital. He took the doctor’s note to the claim agent but said it wasn’t read over to bim, and he didn’t know its contents. The agent opened it and read it, but not so he could hear it. He denied that the money was paid Mm by check and that he endorsed the check, also said that there was no one in the office at the time of the settlement except Mr. Higginbotham and he never saw the claim agent, Biley, until the time of the trial, that the paper was not dictated to a stenographer in his hearing and that there was none in the room. He said he agreed to the release under the circumstances in consideration of the $45 and the promise of his old job back again permanently.
Higginbotham stated that he was with the claim department and settled the claim against the railway company with appellee, and took the release introduced in evidence marked Exhibit “A” to plaintiff’s testimony, the long form release, that Morgan signed the release in his presence and in the presence of Biley, that he wrote all of the signature himself and wrote his name across the face of the voucher for $45.- He read the release to him before he signed it and tried to get him to write through the body of the release, “This release has been read to me and I understand it,” but he said he was not a very apt student at writing, but could write his name, and I said, “All right, write your name there,” and he wrote his náme at the bottom. I read this release to him just as it reads now and he signed it. This other paper draft No. Gr-1470, shows the manner in which I paid Mr. Morgan; he endorsed this draft and I gave him the money on the draft; Mr. Morgan’s name and my name are endorsed on the draft, and I turned it into tie bank. The name on the back of the draft is Mr. Morgan’s personal signature; he wrote it and wrote alL of that name. When the'release was drawn the draft was drawn, and Mr. Morgan endorsed the draft and I endorsed it, and paid him the money and put the draft through the ordinary manner of payment. I did not tell Mr. Morgan, during the progress of this settlement, or at any time relating thereto that he could get his job back at any time he wanted it, and I had no authority to say such as that; no member of the claim department has any authority to say anything like that; there was a conversation about his job, but I did not tell him he could get his job back as long as he wanted it, and did not have the authority to hire him or anybody else or to tell him that he could get his job indefinitely; I had a conversation with Mr. White and Mr. Morgan heard my end of the conversation, and I told him Mr. White said he conld go back to work; I did not tell him that Mr. White said he could have his job as long as he wanted it, and Mr. White never said that, and I had no authority to tell him he could get back to work. I dictated that release to a stenographer. I did not come here on a subpoena, but on a pass. In addition to dictating the release to the stenographer in his presence, I read the release over to him, and we talked about his injuries and this matter quite a while before the settlement was made; Mr. Morgan seemed to talk intelligently and understand these matters, and he made no complaint as to the terms during the dictation or the reading; I explained to Mr. Morgan that I had the entire record and the statements and it was just after Christmas and Mr. Morgan said he had been down there at the hospital, had a wife and a baby and was a poor man and had not been able to buy his wife and baby any Christmas presents: “I am going home and want to take them something. ’ ’ I tried to explain to Mr. Morgan that I did not think there was any liability in the case from the facts that I had, and finally said, “What do you think you ought to get?” and he said, “I think you ought to give me $50,” and I said, “I had an idea of giving you $35 or $40 myself, ’ ’ and we finally agreed on $45, and I thought he was pretty bright in taking it, because I did not think he was entitled to it. He was entitled to treatment in the hospital, as we all pay for that. The reason I quit the service of the company was that I lost my father and went home to take care of his farm in which-1 have an undivided interest.
Riley stated that he was at present claim agent for the Missouri Pacific in Kansas, and that at the date of the execution of the release claim agent for the Iron Mountain and present when the execution was witnessed and signed. That Morgan signed the release with his own hand and he was in the room 'with Higginbotham talking about the settlement. That they came to an agreement and Higginbotham called a stenographer and dictated the release to the stenographer in th,e presence of Mr. Morgan and after it was written called him to witness Mr. Morgan’s signature, which he did. I saw him sign it and also saw him sign his name across the face in addition to his name at the bottom.
Cherry stated he was roadmaster for appellant company, having the territory from Hoxie to Little Rock, except that part now under construction between Bald Knob and Cabot. Mr. Morgan sent me a book signed “W. C. Morgan,” and I told him he had better have somebody else make it out, that his writing was not very good, and he said, “All right,” but did not say anything about not being able to write at all. I am familiar with the rules which the section foremen and men using speeders are required to observe as to looking out for trains and I have given instructions to Mr. Morgan not to use his speeder during the noon hours, and to be careful of trains and keep in the clear with their hand cars or push cars, or whatever they use, and it is their duty to do that.
The court instructed the jury, giving among others, over appellant’s objections, instruction numbered three, as follows:
“If you believe that the defendant’s employees in charge of the «engine drawing said passenger train saw said plaintiff and the speeder on the track for some distance ahead of them and if you believe that at the time of such discovery or at any time thereafter, the life of plaintiff or his body was in peril from such passenger train, then it was the duty of such person in charge of said train to employ all means and utilize all necessary appliances at hand to slow down and stop said train, consistent with the safety of the passengers thereon, and if you believe that at the time of the injury and at a sufficient time prior thereto for said person in charge of said train to stop or slow down said train, plaintiff was engaged in removing the speeder from in front of the approaching train, and that he was so engaged for the purpose of preventing a wreck and derailing of said engine and said train, and you further believe that the manner in which the operators of said train acted was negligent and that the emergency causing plaintiff’s injury was not due to plaintiff’s negligence, then your verdict may be in favor of the plaintiff, unless you further find that the plaintiff has released defendant from such liability by the execution of a release. ’ ’
The jury returned a verdict and from the judgment thereon this appeal comes.
1. Appellee was guilty of contributory negligence in not keeping a proper lookout, and in going back on the track after having reached a place of safety. 83 Ark. 69; 78 Ark. 251; 78 Ark. 355; Id. 520; I Shear. & Bed., Negligence (5 ed.) § 99; 1 Thompson, Negligence, § 240; 97 Ark. 560; 62 Ark. 159; 48 0. St. 316; 42 L. B. A. 842; 67 N. W‘. 404.
On the theory that appellee was acting in an emergency, then he would be held to the degree of care that an ordinary person would observe under the same circumstances; and if he was reckless or rash he can not recover, however good his intentions or imperative the need of the persons for whom he acted. 2 Thompson on Neg. (2 ed.) AL780; 2 Bailey on Pers. Injuries, § 497; 83 Wis. 459; 170 Mass. 168.
2. A servant assumes the usual and ordinary risks incident to his employment; also the risks of a dangerous position into which he goes voluntarily. 87 Ark. 511; 100 Ark. 380; 65 Ark. 126; 100 Ark. 380; Id. 156; 65 Ark. 126; 97 Ark. 486. Appellee assumed the risk due to extra or special trains as well as regulár trains. 61 Md. 395; 161 M?iss. 125; 80 Fed. 260; 4 Thompson on Neg. (2 ed.) § 4771.
3. No negligence is shown on the part of the train operatives. 4 Thompson on Neg., § 4443. The engineer had the right to assume that the section men on the hand car knew of the train’s approach, etc., and was hound to use all his efforts to stop only when it appeared that they were not aware of the approach of the train and were not likely to leave the track in time to avoid collision. 67 N. W. 404; 90 Ark. 403. The burden was on appellee to prove that there was time to stop the train and avoid injuring him after he returned to the track. 97 Ark. 560.
4. The proof fails to show fraud in the execution of the release. 116 Fed. 913; 79 Ark. 356; 99 Ark. 442; .98 Ark. 48; 97 Ark. 268; 111 Minn. 193; 116 Fed. 93; 129 Mo. 629; 71 Miss. 1029; 61 Kan. 758; 75 Ark. 266; Id. 72; 71 Ark. 614; 74 Ark. 336; 70 Ark. 512; 95 Ark. 375; Id. 523.
5. Instruction 3 given by the court errs in ignoring the rule of law that the train operatives were under no duty to act until they discovered appellee’s peril, and makes appellant liable because of the mere fact of the peril of the plaintiff. 90 Ark. 413; 46 Ark. 513. The instruction also errs .in making appellant liable if appellee received his injury in an attempt to prevent a wreck, etc., and in assuming that he was acting in any 'emergency. It was for the jury to say whether an emergency existed. 66 Ark. 506; 71 Ark. 38; 76 Ark. 468.
1. Contributory negligence is a defense the burden of proving which is upon the defendant. 81 Ark. 276; 67 Ark. 384. Under the facts in this case it will not be inferred that appellee was negligent when he could not have seen the train even if he had looked. 100 Ark. 527.
2. The evidence shows negligence on the part, of the train operatives. When the person in charge of a train observes the perilous position of one on the track, it is his duty to employ all means and utilize all necessary appliances at hand, consistent with the safety of the passengers thereon, to stop the train. 89 Ark. 496 and cases cited; 99 Ark. 423; 94 Ark. 524; 87 Ark. 628; 96 Ark. 347; 74 Ark. 407.
3. There was no negligence in the attempt to remove the speeder. Negligence will not he imputed to one who endangers himself in an effort to save human life unless he acts recklessly and rashly. 1 Thompson on Neg., § 198; 82 Ark. 11; 92 Ark. 560; 43 N. T. 503; 115 N. T. 22; 83 Mo. 560; 104 Mass. 137; 195 Pa. 461; 152 N. C. 505; 132 S. W. 95; 81 S. W. 998; 18 L. B. A, 827.
4. The doctrine of assumed risk does not apply in this case. The rule that a servant does not assume the risks growing out of the master’s negligence is as well settled as that ordinarily he assumes the risks incident to his employment. 90 Ark. 223.
5. The release was fraudulent and void because (1) of a misrepresentation of a material fact made for the purpose of inducing the execution of the paper, and (2) a misrepresentation of a material part of the writing and a material fact which went to its execution. 94 Ark. 524; 87 Ark. 624; 9 Cyc. 411.
6. The appellant’s objections to the third instruction are without merit; but if it had any meritorious objections to the instruction they should have been presented in specific form to the trial court. 65 Ark. 255; 73 Ark. 594; 76 Ark. 468; 99 Ark. 226; 100 Ark. 269.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
