| Mass. | Nov 28, 1919
The plaintiff was injured while riding on an automobile truck owned by William F. O’Brien. The truck carried a load of highly inflammable vi^coloid waste and was proceeding along the defendant’s tracks on Lancaster Street, Leominster. The jury could have found on the facts presented that owing to the defendant’s negligence a defective trolley wire broke and fell on the truck, setting fire to it, injuring the plaintiff and burning her clothing. There was evidence that before the wire fell, a boy who had been smoking a pipe, jumped on the truck, and as he did so, knocked the pipe on the side of the truck and the ashes dropped to the ground; that a short time after this the boxes of waste caught fire and the blaze from the fire extended above , the normal position of the trolley wire. It was the contention of the defendant that the waste became ignited at some distance before the truck reached the point where the wire fell and that the heat melted the copper wire and caused it to fall.
Subsequent to the accident the plaintiff, in consideration of $75 paid her, signed an instrument under seal releasing O’Brien from all claims for damages resulting from the injury. The jury were directed by the trial judge to return a verdict for the defendant, on the ground that the release signed by the plaintiff and delivered to O’Brien barred her right against the defendant.
The entire injury to the plaintiff was caused by the same tort. There could be but one indemnity for the wrong and the release of one joint tortfeasor released all the wrongdoers. Stone v. Dickinson, 5 Allen, 29. Brewer v. Casey, 196 Mass. 384" court="Mass." date_filed="1907-10-16" href="https://app.midpage.ai/document/brewer-v-casey-6429999?utm_source=webapp" opinion_id="6429999">196 Mass. 384. This rule applies where one is injured by the combined or concurring negligence of two or more persons acting independently of each other, with no concert of action, and where the wrong done was not intentional. Feneffy. Boston & Maine Railroad, 196 Mass. 575" court="Mass." date_filed="1907-12-04" href="https://app.midpage.ai/document/feneff-v-boston--maine-railroad-6430036?utm_source=webapp" opinion_id="6430036">196 Mass. 575,582.
The plaintiff could have contended that after the waste took fire the driver of the truck was negligent in continuing in the defendant’s track under the trolley wire, which was old and defective, when he might have seen its condition and avoided it; and the writing stated that the money was paid in satisfaction of the claims made on the defendant by the plaintiff. In Pickwick v. McCauliff, supra, the plaintiff was injured while in the employ of the Commonwealth by the defendant’s negligence. He signed a paper agreeing to make no claim on the Commonwealth in consideration of its paying him his wages while incapacitated and indemnifying him for his doctor’s bills and hospital expenses. He did not claim damages from the Commonwealth and it was not legally responsible to him. What the plaintiff received was not in satisfaction of his damages. The payment was in the nature of a gift or gratuity. The case is distinguishable from the cáse at bar, where there was a claim made on O’Brien as shown by the terms of the release; and on the record, there was at least the possibility that she could recover against him.
The plaintiff was permitted, subject to the defendant’s exception, to introduce paroi evidence for the purpose of showing that the money paid by O’Brien was a gift to her and not in satisfaction of her damages. In reply to the question if O’Brien paid her money, she said: “He did; yes, like a gift to pay me;” and when asked what was said about the paper, replied: “It was said they gave me a gift to pay damage to my clothes.” Even if we assume that this evidence was admissible for the purpose offered against the defendant, who was not a party to the written agreement, see Johnson v. Von Scholley, 218 Mass. 454" court="Mass." date_filed="1914-08-04" href="https://app.midpage.ai/document/johnson-v-von-scholley-6432819?utm_source=webapp" opinion_id="6432819">218 Mass. 454, it was entirely insufficient to show that the actual agreement was different from that set out in the written instrument. No fraud was practised on the plaintiff, she could read and write, and she did not show that the writing failed to express correctly her agreement and understanding with O’Brien. The fact that some one (it does not appear who) said that a gift was made to pay for damages to her
Exceptions overruled.