219 A.D. 589 | N.Y. App. Div. | 1927
The defendant, appellant, Director-General of Railroads, operating the Pennsylvania railroad when the plaintiff was injured on September 10, 1919, does not raise any question as to the sufficiency of the evidence of negligence on the part of his employee, the gateman, and absence of contributory negligence on the part of the plaintiff.
There is really no dispute about the law governing this case. The plaintiff was a civilian employee of the War Department injured in the line of his duty. It was optional with the plaintiff whether he would make a claim under the Federal Employees’ Liability
The learned trial justice charged the jury clearly as to the issue presented to them. He said that the plaintiff had two separate remedies, one under the Federal Workmen’s Compensation Act, the other in an action to recover damages for negligence. He told the jury that as the railroad was operated at the time by the Director-General, the plaintiff could not avail himself of both remedies. If he determined and elected to take workmen’s compensation, knowingly and understanding^, he could not thereafter bring an action at common law. - He told the jury that if the plain
I think on the evidence in the record the issue of fact was presented which was thus clearly presented to the jury in the charge. (Dixon v. Brooklyn City & Newtown R. R. Co., 100 N. Y. 170; Whipple v. Brown Brothers Co., 225 id. 237; Boxberger v. N. Y., N. H. & H. R. R. Co., 237 id. 75; O’Meara v. Brooklyn City R. R. Co., 16 App. Div. 204; Grockie v. Hirshfield, 50 id. 87; Fleming v. Brooklyn Heights R. R. Co., 95 id. 110.)
There is a distinction between those cases where a plaintiff, understanding that he was signing a general release, executed the paper and subsequently seeks to rescind it upon the ground that he was misled or defrauded (Brassel v. Electric Welding Co., 239 N. Y. 78; McNamara v. Eastman Kodak Co., 232 id. 18), and cases like the present where the plaintiff denies that he ever signed a release — if the plaintiff’s story is true he never elected to apply to the Commission for compensation. The distinction is pointed out in Cleary v. Municipal Electric Light Co. (65 Hun, 621, opinion by Cullen, J.; 47 N. Y. St. Repr. 172; affd., on opinion below, 139 N. Y. 643.)
Therefore, I cannot agree with the learned counsel for defendant in his contention that plaintiff’s acceptance of the two checks referred to was a bar to this action. The issue still remained for the jury whether he knowingly signed the documents brought to him at the hospital understanding what they were. The Cleary Case (supra) also disposes of appellant’s argument that plaintiff could not recover in this action because he had retained the $137.98, the net amount paid him by the Compensation Commission, as he says, as “ part of my salary.” As Judge Cullen said in the Cleary case, “ if the plaintiff had admitted the compromise or his execution of the release, but claimed that he had been induced to make the compromise by fraud, duress or imposition, he would have been bound to return the consideration received before he could maintain his action. But that was not the issue in the case. Plaintiff did not seek to avoid the contract of compromise. He denied making any such contract. The fraud here, if any, was not in inducing the plaintiff to enter into the agreement, nor even in falsely reducing to writing the terms of the agreement made; for if the plaintiff’s
These appear to be the only questions presented upon defendant’s appeal.
The judgment should be affirmed, with coses.
Present — Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ.
Judgment unanimously affirmed, with costs.