Albrecht v. Milwaukee & Superior Railway Co.

| Wis. | Feb 23, 1894

Pinney, J.

1. The release given in evidence, upon its face, is plainly a bar to the cause of action set out in the plaintiff’s complaint. The instructions of the circuit court in respect to the effect and binding force of the release are, in substance, that, while the fact that the plaintiff executed it raises a presumption that he knew its contents and that it was a full settlement and discharge of the defendant from the claim in suit, yet the plaintiff might avoid its effect by merely showing that at the time he signed it he did not know its contents or effect. Written instruments, regularly executed and delivered, cannot be thus dealt with and avoided, or their operation defeated. There is no pretense that the plaintiff was induced to sign the release through fraud or misrepresentation, or that any deception was practiced by misreading it to him. His inability to read English or understand the contents of the paper is no excuse. This was his own negligence. He could and should have sought the assistance of some one. capable of properly informing him. Fuller v. Madison Mut. Ins. Co. 36 Wis. 603; Sanger v. Dun, 47 Wis. 615" court="Wis." date_filed="1879-08-15" href="https://app.midpage.ai/document/sanger-v-dun-6602970?utm_source=webapp" opinion_id="6602970">47 Wis. 615. It cannot be tolerated that a man shall execute a written.instrument, and, when called upon to abide by its terms, say, merely, that he did not read it or know what it contained. Upton v. Tribilcock, 91 U. S. 50. The case, as put to the jury, goes upon the assumption that the plaintiff might even avoid the release though his execution of it was attributable to his own gross negligence. In the case of Sheanon v. Pacific Mut. L. Ins. Co. 83 Wis. 527, 528, the cases in this state on the question here involved were considered, and it was there held that, if the instrument was signed through the excusable mistake or negligence of the party, he is not bound by it, and that the burden of proof is on him to rebut the presumption of gross negligence. If grossly negligent, manifestly he would be bound by it; but the presumption is not a conclusive one. This is no doubt the true rule, in the absence of proof to show that the party had been deceived, misled, or overreached. Under the instructions given, the plaintiff was allowed, without showing any excuse whatever for his gross negligence, to avoid the release on the ground, simply, that at the time he signed the paper he did not know its contents and effect.

2. The right of the plaintiff to recover depended entirely on bringing his case within the statute (sec. 1816a, S. & B. Ann. Stats.) making a railroad company liable “ for damages sustained by an employee thereof within this state without contributing negligence on his part, when such damage is caused by the negligence of any train dispatcher, telegraph operator, superintendent, yard master, conductor or engineer, or of any other employee who has charge or control of any stationary signal, target point, block or switch.” He was without remedy at common law, in this case, for the consequences of the negligence of his fellow servants or co-employees. The rules of pleading require that the allegations of a complaint under this statute shall show clearly the relation between the negligent party and the company relied on, and the proofs must be confined to the allegations made. The only cause of action alleged Avas for the negligence of the engineer, and at the trial the evidence was directed to an attempt to show that Hickson was yard master, and that the injury was caused by his negligent and improper conduct. The case was taken from the jury on this point; the court holding, as matter of law, that Hickson was in such relation (but what is not stated) to the company and the running of the road that his negligence was the negligence of the defendant company. The case should have been put upon some definite point or relation specified in the statute, and ivithin the issue framed by the pleadings. Here the case, as to the ground of recovery, was submitted and decided upon an issue of which the pleadings contain no intimation ivhatever,— a practice certainly not to be encouraged. Kruschke v. Stefan, 83 Wis. 383, 384. We make these remarks in vietv of the fact that the case will probably be tried again, Avhen these objections may be obviated. And in this connection we wilt add that Ave think that, in view of the evidence, the question Avhether Hickson was yard master or not was one of fact for the jury under proper instructions from the court.

Eor the error in the charge of the court in relation to the release and evidence concerning it, the judgment of the circuit court must be reversed.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.