40 Kan. 123 | Kan. | 1888
Opinion by
Defendant in error brought his action against plaintiff in error to recover damages for injuries sustained while in the employ of the defendant. He stated substantially in his petition, that on or about April 8, 1885, he was employed by defendant at its coal mines at Osage City; and at nine o’clock of said day he ascended the shaft connected with the mines of the defendant, by means of bunting or braces, in a careful manner, to the top of said shaft, and that it then became necessary to grasp a portion of the slide against which a gate worked at the top of said shaft, in getting up the side of said shaft which plaintiff was ascending; but that said slide was negligently and carelessly fastened and secured, as not to support and enable plaintiff to use the same in drawing himself from said shaft; that plaintiff did not know it was unsafe, and that when he took hold of said portion of said slide for the purpose of assisting himself out of the said shaft, it broke away and plaintiff fell down the shaft, a distance of some forty feet, and was severely bruised, and
The answer of the defendant contained: First, a general denial; second, that the injuries sustained by plaintiff were occasioned wholly by plaintiff’s negligence and want of care in attempting to leave defendant’s coal shaft in an unusual and improper manner, and at a place not designed for the passage of workmen to and from said mine; third, that on the 15th day of May, 1885, the defendant settled with plaintiff for all damages due him on account of injuries received, which injuries were those complained of in this suit, and plaintiff on said day made, executed and delivered to defendant his written release and satisfaction and receipt in full for all damages on account of said injuries received on April 7, 1885, which receipt is in words and figures following, to wit:
“Osage City, Karsas, May 15, 1885. — Received of the Scandinavian Coal and Mining Company, twenty-one and no lOOths dollars, in full for all work and all damage I may have against said company by reason of falling down a shaft of theirs on or about April 7, 1885. ms
Charles X Whittle ar.
Witness: A. B. Cooper.” mark-
In reply, plaintiff made a general denial to the second and third defenses; and further, as to the third defense, that the plaintiff could not read either written or printed matter, and never was able to do so; that at the time plaintiff affixed his mark to the written instrument set out in the answer of the Scandinavian Coal and Mining Company, said company was indebted to plaintiff in the sum of twenty-one dollars for work and labor performed by plaintiff for defendant; and defendant had paid plaintiff for the same; and at the time of said payment the plaintiff had been required to sign a receipt or voucher similar to the one set forth in the defendant’s answer; and at the time plaintiff executed the receipt or voucher set out in defendant’s answer, A. B. Cooper, whose name appears to said voucher — the said A. B. Cooper being a stockholder and officer of said defendant company, and who was then
On the 19th day of November, 1886, the case came on for trial in the district court of Osage county. Upon the trial, the following facts substantially appeared: The plaintiff had been engaged about coal mines for about five years, and had for quite a period been engaged in working in and about the shaft attached to the mines of defendant, known as shaft No. 2 of the Scandinavian Coal and Mining Company. This
The errors insisted on here are, that the trial court should have sustained the demurrer to the evidence of the plaintiff below, and errors with respect to the instructions and admission of evidence. It is said for the plaintiff in error, that the release or receipt set out in the answer of the defendant below must be taken as true, as its execution was not denied under oath; and that hence it was incumbent on the plaintiff below to introduce some evidence impeaching it, or that his evidence was subject to the demurrer. It is contended, on the other side, that the execution of the receipt is not one of the necessary or material facts to be alleged in pleading a settlement of plaintiff’s cause of action;, that the new matter set up in the answer is a settlement; that the receipt is but evidence of that defense, and does not come within the meaning of §108 of the code; that the allegation as to the execution of the receipt could be left out without affecting the materiality of the pleading.
We are inclined to hold that the provisions of §108 of the code are broad enough to cover the receipt as a written instrument within its contemplation, and that its execution is admitted by the pleading. This provision has been held to include a sheriff’s bond, a bill of lading, a school order, a promissory note, and real and chattel mortgages; and hence a release and receipt for damages must be held to be within the meaning of that section. The reply of the plaintiff alleged that it was procured by fraud and misrepresentation, and its ■ execution being admitted by the pleading, the plaintiff below was necessarily compelled to offer some evidence tending to impeach it, before he could recover. At the trial the court instructed the jury, “that so far as this defense is concerned under the evidence, I say to you that it is not before you for your consideration.” The issues made by the pleadings were
The fifth instruction is subject to the criticism made thereon ! in the brief of the plaintiff in error. There is surely not such a state of facts presented as would authorize an inference,
■ much less establish it as a fact, that the coal company was .guilty of such gross negligence as implies willful or wanton injury.
It is recommended that the judgment of the district court be reversed, and the cause remanded with instructions to sustain the motion for a new trial.
By the Court: It is so ordered.