53 S.E.2d 895 | Ga. | 1949
1. If one innocently, by mistake, misrepresents to another a fact which is material, and in which the other confides, it is fraud in law, and a release executed by such other party to the first, in reliance upon such misrepresentation, may be set aside in equity.
(a) Ordinarily an injured party has a right to rely upon the statements of the attending physician of the release as to the nature and seriousness of his injury.
(b) The rule as to misrepresentations, though innocently made, constituting fraud in law where confided in, does not apply "where the fact affirmed is of such a nature that the other party has no right to place reliance on it, and it was his own folly to give credence to it, for courts of equity will not aid parties who will not use their own sense and discretion. This exception contemplates a case where both parties have equal opportunities and means of knowing the truth of the statement, and where, in the very nature of the transaction, it is unreasonable to believe that a sensible man would act upon the statement of the other side, and where, if he does, he must be considered as reposing a confidence not necessary, and not expected, and without ordinary sense and discretion."
2. The allegations of count two of the petition as amended were sufficient to authorize a jury to find that the petitioner's injuries, sustained by him while performing his duties as a switchman, in attempting, as directed by his foreman, to mount and stop a string of three cars which had been separated from other cars and an engine and were moving under their own momentum, were caused in part by the violation by the defendant railroad of the Federal Safety Appliance Act, 45 U.S.C.A., § 11, in using cars with defective hand brakes, which, failing to function when the petitioner sought to apply them in the usual, customary, and ordinary manner on two of the cars, prompted and required him in the emergency thus created to dismount to the ground, by using handholds and grab irons on one of the cars, in order to stop the cars by mounting the third car and using the hand brakes thereon, with the result that the petitioner, in attempting to avoid a switch stand on the ground as he dismounted, was forced to suddenly wheel, and thereby injured and damaged his back in described particulars. The allegations were sufficient to state a cause of action against the defendant, and the court erred in sustaining its general demurrer.
Count 2 of the petition as amended alleged the following: The defendant has damaged the petitioner in the sum of $60,000 by reason of the facts hereinafter stated. At all times herein mentioned the petitioner was in the employ of the defendant as a *462 switchman in its yards at Hamlet, North Carolina, his duties as a member of the switch crew requiring that he make up and break up trains, and in so doing to couple and uncouple freight cars, to apply and release hand brakes on cars being handled by the switch crew when necessary so to do and when directed by the conductor in charge of the said switch crew. On or about July 5, 1948, at about the hour of 1:50 a. m., the petitioner, in the course of his duties, was directed by the foreman in charge of the switch crew at the said place to ride three wood-rack cars loaded with wood into track 30 in the said yards. The yards of the defendant at Hamlet are on a grade, the same being known as a "hump", and when cars are being switched in the said yard, as were the three cars aforesaid, they are cut loose or uncoupled from the other cars or engine handling the same and permitted to roll under their own momentum into the tracks desired. The brake on the lead car of the said cut was on the north end of it, and the brake on the second car was on the south end of it, both brakes being together and were staff brakes. The petitioner, as his duties required and as he had been directed by the conductor aforesaid, mounted the three cars as they passed him, to ride them into track 30 and stop them with the hand brakes. Upon reaching the hand brakes on the lead car, the petitioner attempted to control the speed of the same by turning the brake wheel to the left in the usual, customary, and ordinary manner, but the said brake was not efficient as prescribed by law, in that the same did not apply and set the brakes and slacken the speed of the said cars. Thereupon the petitioner tried to apply the hand brakes on the second car aforesaid by turning the brake wheel to the left in the usual and customary manner, but the said hand brake on the second car was not efficient as prescribed by law, in that the same did not apply and set the brakes or slacken the speed of the said cars when applied in the usual and customary manner aforesaid. The brakes on the said cars being located as aforesaid, the petitioner could not see if there were other cars in front of him or not. He could not see around them as the wood thereon obstructed his view, and could not tell how far from other cars, if any, in said track the cars he was riding at that time were; and being unable to reach the brake on the other car on account of the load unless dismounting, and as said *463 cars were gaining speed, and knowing that they would collide with other cars unless stopped, the petitioner, in the emergency thus created, dismounted therefrom. As neither of the hand brakes aforesaid was efficient and would not slacken the speed or slow the said cars down, he, in a hurry and in the emergency thus created, dismounted from the said cars by means of the handholds and grab irons in order to reach the brake on the third car in order to stop the cars, and in doing so received the injuries set out in the petition. The petitioner dismounted from the said cars a few feet from a switch stand, and to keep from running into it he wheeled around, and in doing so twisted, sprained, and wrenched his back, and all of the bones, nerves, muscles, ligaments, flesh, skin, and tissues of his back at or near the small or lumbar region were wrenched, stretched, sprained, torn, and injured. He suffered a severe shock to his entire nervous system and has suffered the greatest mental and physical pain and agony on account of the said injuries, and will continue to suffer much pain for a great length of time to come, the exact duration of which he cannot at this time tell. The said injuries may be permanent in character. Following the said injuries the petitioner was sent to the Hamlet Hospital where he was X-rayed and treated by Dr. W. D. James Jr., the company's physician, and discharged by him. Prior to the said injuries the petitioner was a strong able-bodied man twenty-six years of age, earning and capable of earning $300 per month by his labor. He had a life expectancy of 37.14 years. The petitioner has been unable to work and labor and earn any money since the said injuries. It was the absolute duty of the defendant, under the Federal Safety Appliance Act, not to haul or permit to be hauled or used on its line any car subject to the provisions of said act not equipped with appliances provided for in said act, to wit, "All cars must be equipped with . . . efficient hand brakes," and its act in so doing as herein alleged was a direct violation of the Safety Appliance Act and negligence as a matter of law and was the proximate cause of the petitioner's injuries. At the time of the said injuries the defendant was a common carrier by railroad, engaged in the transportation of interstate commerce, and the instrumentalities on which and with which the petitioner was working at the time of his injuries were instrumentalities *464 which were used in the furtherance of interstate commerce, and the same were engaged in interstate commerce, and the petitioner at the time of his injuries was engaged in interstate commerce. At all times mentioned the tracks over which the said cars were being run were a part of the defendant's line of track and railroad owned and being used by the defendant at the said time and extending from the City of Hamlet in the State of North Carolina into the States of South Carolina, North Carolina, Alabama, Georgia, Florida, Virginia, and other States. The same was a highway of interstate commerce and was being constantly used at the time in question in hauling and transporting freight, passengers, and United States mail originating at stations within and without the States of North Carolina, South Carolina, Georgia, Florida, and Alabama upon its lines. The prayers were (a) for a judgment for the full sum sued for, and (b) for process.
The defendant demurred generally to the original count 1 of the petition, on the grounds that (a) it affirmatively appears therein that the petitioner has received full satisfaction for the injuries alleged therein and has discharged the defendant from any and all liability on account thereof; (b) the allegations of the petition fail to show that the petitioner is entitled to have the said release voided on the grounds of mutual mistake or for any other reason.
The defendant demurred generally to the original count 2 of the petition, for the reason that it affirmatively appears therein that the defendant violated no duty nor was it guilty of any negligence toward the petitioner which could be construed as a proximate and immediate cause of the petitioner's alleged injuries.
After the amendment to each count of the petition the defendant renewed its demurrers. The court sustained the demurrers and the exception here is to that judgment.
1. The general demurrer to the first count of the petition as amended does not attack it on the ground that no cause of action is set out because of the alleged negligence of the defendant, *465
but solely because the allegations fail to show that the petitioner is entitled to have voided a certain release which he executed to the defendant, and that it appears that by reason of this release the defendant has been discharged from all liability based on the injuries received on February 18, 1947. A determination of the validity of the release will, therefore, dispose of the question raised by the general demurrer to count one as amended. In sustaining the general demurrer, the trial court relied upon Morris v. Seaboard Air-Line Ry.,
Whether or not the mistake here alleged was a mutual one and such as would authorize the cancellation of the release, it is clear that the petitioner was mistaken as to the nature and extent of the injury he had received, and that such belief was induced by the misrepresentations of the defendant's agents. In such circumstances it is not necessary that the misrepresentations be fraudulent in fact in order to authorize a cancellation of the release. It was held as early as Smith v.Mitchell,
Our attention is invited to an alleged inconsistency in the allegations of count 1 and count 2 of the petition. It is alleged in count 1 that the petitioner was injured on February 18, 1947, and entered into a settlement on February 27, 1947, but did not know the full nature and extent of his injuries, which he alleged to be permanent, until July 7, 1948. In count 2 it is alleged that he was injured on July 5, 1948, and that prior thereto he was a strong and able-bodied man, 26 years of age, earning and capable of earning the sum of $300 per month by his labor. It is argued, therefore, that the injuries received on February 18, 1947, had necessarily ceased to exist as of July 5, 1948, and the petitioner should not be granted relief in equity under count 1. While we recognize the discrepancies point out, we cannot look beyond the allegations of count 1 in testing it on general demurrer, but each count must stand on its own strength or weakness without being aided or harmed by reference to another.Cooper v. Portner Brewing Co.,
Adherence to this rule does not mean, however, that when evidence is introduced by the petitioner in support of the allegations of count 1, the defendant may not, as touching the petitioner's credibility, introduce in evidence the allegations of count 2 *470 which are inconsistent with those in count 1 and which indicate that when he was injured on July 5, 1948, as alleged in count 2, he was a strong, able-bodied man, earning and capable of earning $300 per month by his labor. Whether or not such allegations in count 2, solemn admissions in judicio, would render testimony of the petitioner as to the nature and extent of his injuries alleged in count 1 unacceptable, would be exclusively for the determination of the jury.
2. The action in count 2 of the petition as amended was brought under the Federal Safety Appliance Act (45 U.S.C.A., § 11), and Federal Employer's Liability Act (45 U.S.C.A., § 51). The first-named act provides as follows: "It shall be unlawful for any common carrier subject to the provisions of sections 1-16 of this title to haul, or permit to be hauled or used on its line, any car subject to the provisions of said sections not equipped with appliances provided for in sections 11-16 of this title, to wit: All cars must be equipped with . . efficient hand brakes . . Provided, That in the loading and hauling of long commodities, requiring more than one car, the hand brakes may be omitted on all save one of the cars while they are thus combined for such purpose." The last-named act provides: "Every common carrier by railroad while engaging [in interstate commerce as here] . . shall be liable . . to any person suffering injury while he is employed by such carrier in such commerce . . for such injury . . resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." In § 53 of the Federal Liability Act it is provided that "the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee."
Under numerous decisions of the Federal courts where the negligence *471
of the employee is the sole and proximate cause of his injury, there can be no recovery; but where the common-carrier's negligence contributes in part to the injury, the employee is not barred from recovery though he may have been guilty of contributory negligence. Norfolk Western Ry. v. Earnest,
In sustaining the general demurrer to count 2 of the petition as amended, the trial court based its opinion on the theory that the employee's injury was not sustained by reason of the failure of the defective brake to function, but that the actual cause of his injury was his act of alighting and running into a switch stand, whereas the allegation was that, in the emergency created by the failure of the brakes to apply, he dismounted from the cars by means of the handholds and grab irons in order to reach the brake on the third car in his effort to stop the cars, and in dismounting a few feet from a switch stand and to keep from running into it he wheeled around, and in doing so injured his back in described particulars. It was said in the written opinion of the trial judge, and so argued by counsel for the defendant in error, that the defective brake merely created a condition or reason which caused the employee to be at the place where he was injured, but that the proximate and efficient cause of his injury was his negligence after reaching the ground, it being contended by counsel for the defendant in error that he should have dismounted in time to avoid the necessity of a sudden turning around upon being confronted with the switch stand. In support of his ruling the trial judge relied upon Powell v. Waters,
We have in the present case no mere condition in which the switchman might have paused and escaped injury. He was confronted with a dangerous situation, and an emergency had been created by the defective hand brakes. He was riding, at the direction of his superior, the foreman in charge of the switch crew, a string of three cars loaded with wood and moving on a downgrade. His task was to ride the cars into track No. 30 and stop them with the hand brake. Appropriately, he tried to accomplish this by turning the hand brake on the lead car. It was defective and would not function. He met with a similar difficulty with the hand brake on the second car. The emergency thus created is described in the petition as follows: "The brakes on the said cars being located as aforesaid, the petitioner could not see if there were other cars in front of him or not. He could not see around them, as the wood thereon obstructed his view and could not tell how far from other cars, if any, in said track the cars he was riding at that time were, and being unable to reach the brake on the other car on account of the load unless dismounting, and as said cars were gaining speed, and knowing that they would collide with other cars unless stopped, the petitioner, in the emergency thus created, dismounted therefrom." Certainly a jury would be authorized to find that, had the petitioner remained on the car with a defective hand brake, he would not only have been unable to prevent a collision with other cars on track No. 30, which the petition shows was inevitable unless the string of three cars was successfully stopped, but would have subjected himself to injury or death. Had he remained on the car and suffered injury by reason of the failure of the hand brake to function, resulting in the collision of cars, the railroad would have been liable. Detroit, T. I. R. Co. v. Hahn, 47 F.2d 59. His intention to dismount *474
from one car and attempt to reach the hand brake on the third car was fully in keeping with the directions of his superior, the foreman of the switching crew. The defective hand brake on the second car obviously prompted and required the action which he took. As said in New York Cent. R. Co. v. Brown, 63 F.2d 657: "It has long been settled that the chain of causation is not broken by an intervening act which is a normal reaction to the stimulus of a situation created by negligence, and such normal reaction has been held to include the instinct toward self-preservation, Stott v. Shepard, 2 W. Bl. 892 (the lighted squib case), and the equally natural impulse to rush to others' assistance in emergency. . . This rule of causation has been repeatedly recognized by this court." (Citing.) The petitioner dismounted a few feet from a switch stand, and to avoid running into it he wheeled around, and in doing so wrenched and damaged his back in described particulars. It is argued by counsel for the defendant in error that it is not shown that the conditions were not such that he could not have seen the switch stand while dismounting or after reaching the ground in time to have avoided it. It must be remembered, however, that in an emergency one is not held to the same accuracy of judgment as would be required of him if he had time for deliberation. Central of Georgia Ry. Co.
v. Barnes,
The allegations of the petition show that the defendant maintained and operated a car with defective hand brakes in violation of the statute, and a jury would be authorized to find that this defective condition was inseparably connected with and induced the act of the employee which resulted in his injury. It follows that the court erred in sustaining the general demurrer to count two of the petition as amended.
Judgment reversed. All the Justices concur. *476