35 Wash. 439 | Wash. | 1904
This is an action for damages for personal injuries received by respondent while traveling as a passenger upon one of appellant’s cars. Respondent was at the time, and for several years prior thereto had been, an employe of appellant, engaged in rendering services about the car bam of the railway company, but when he received his injuries he was a passenger on his way to his home, after completing a day’s work, and he says he had paid his fare as the other passengers had done.
The question of want of original liability is not urged upon this appeal, but it is contended that respondent had, prior to bringing the action, for a consideration, fully released appellant from alhclaims for damages. In reply to the answer setting up the release, respondent alleged, that, by reason of his long employment by appellant, he had great confidence in the company’s agents, physician,
It is assigned that the court erred in overruling appellant’s challenge to the legal sufficiency of the evidence. Respondent was injured in a “head on” collision between two of appellant’s cars, and his hand was severely cut, and his thigh was struck in such a manner as to cause a bad brMse to the muscles and to the bone, accompanied with sub-acute inflamation of the periosteum. Such was shown to be his condition by a letter in the record, written by the company’s surgeon. This letter was written January 23, 1903, a short time before tMs 'suit was begun. The injury occurred April 23, 1901, nearly two years prior to the writing of this letter. In the course of the testimony of the doctor upon the witness stand, he said that he, as the company’s surgeon, examined respondent’s injuries soon after they were received, and that he then told re
The testimony of respondent as to what occurred at the time of the signing of the alleged release is in substantial accord with the allegations of the reply hereinbefore set out. The chief negotiations leading up to the signing of the paper, aside from the statements of the physician heretofore discussed, were between the claim agent and respondent. The sum of $10 was paid by the claim agent to respondent at the time the paper was signed. That was the amount of wages, at respondent’s rate, for the time he had been unable to work, and he says he was informed
That it is for the jury to say whether one has been fraudulently misled into signing a release of this character, under similar circumstances, is expressly held in the following cases: Pioneer Cooperage Co. v. Romanowicz, 186 Ill. 9, 57 N. E. 864; Meyer v. Haas, 126 Cal. 560, 58 Pac. 1042; International etc. R. Co. v. Harris, (Tex.) 65 S. W. 885; Great Northern R. Co. v. Kasischke, 104 Fed. 440; Schus v. Powers-Simpson Co., 85 Minn. 447, 89 N. W. 68, 89 Am. St. 571, 57 L. R. A. 297; Whitney & Star
Appellant urges that the evidence is insufficient to establish fraud. It is true there is conflict, but the weight of the evidence must be determined by the jury. We think there is sufficient evidence bearing upon the question of fraud, if true, to support the verdict, and it is clearly established by the above authorities that when a purported release has been procured by fraud, it does not become a release, and is not a defense, to an action of this kind. The cases cited by appellant are lacking in some elements found in the issues of this case. In Pederson v. Seattle Consolidated St. R. Co., 6 Wash. 202, 33 Pac. 351, 34 Pac. 665, urged by appellant as decisive of this ease, the respondent testified that he could understand and speak the English language, but could not write in that language; that the language used in the release was not read to him, and that if the words therein found had been read to him he would have understood them. It thus appeared that he was capable of understanding the paper upon merely hearing it
This disposes of appellant’s chief contention in this ease. Errors are assigned on the introduction of testimony. It is contended that evidence was improperly ad
The juiy found the whole damage to be $2,510, and, following the court’s instructions, they deducted $10 from said sum, which was the amount paid respondent when he signed the alleged release. Due credit was therefore given for the sum in respondent’s hands, and, under the authorities, there was no necessity for its return before bringing this suit. It is true, respondent worked for and received wages from appellant for about a year and a half after his injuries, but he was presumably giving value received. A few weeks after the injury he began -work again, as he says, under the statement of the physician, reinforced’with that of the claim agent, that his injury was slight and that he would soon recover. But during the time he worked he seems to have suffered continually, and made no apparent progress toward recovery, which is not remarkable in view of the testimony of the physician that the bone was
We see no reason for disturbing the verdict, or for granting a new trial, and the judgment is affirmed.
Fullerton, C. J., and Mount. Anders, and Dunbar, JJ., concur.