82 Vt. 416 | Vt. | 1909
This is an action to recover damages for injuries resulting from the alleged negligence of the defendant when under its employ as a brakeman on its freight train running from Portland, Maine, to Montreal, Canada. Pleas, general issue, and special that the defendant had obtained a full release and discharge under seal from the plaintiff releasing and discharging it from all liability which may have arisen on account of the alleged negligence. The plaintiff replied that said release and discharge were procured by fraud, and that he had
Evidence was introduced tending to show that the plaintiff is a Canadian by birth, without much education; that he lived in Canada till nine years old, in the last two or three years of that time attended school there and learned to read and write French; that then he came to the United States and within the next three years attended a night school one winter and learned to read and write English “a little”; but that his understanding of the English language is very imperfect, and especially as to hard or uncommon words, and such technical words and phrases as are used in the contract of release in question.
- Defendant objected to the admission of any evidence outside of the release itself on grounds reduced and stated thus: (1) that the written contract of release speaks for itself, and evidence to vary it is inadmissible; (2) that all the allegations of fraud set up in the replication are as to the legal effect of the release itself. The real issue presented, however, was whether the so-called release was fradulently obtained by the defendant of the plaintiff, he in fact intending to give only a receipt for the money received by him and, relying upon the false and fraudulent representations by the defendant, understood the paper signed by him to be only such receipt. This was within the allegations of fraud set up in the replication, and the evidence introduced by the plaintiff bearing thereon, as also some of that introduced by the defendant, — though the tendency of much of the' latter’s evidence was to the contrary,- — tended to show that the so-called release was thus fraudulently obtained, the money being paid by the defendant as a gift or gratuity and so received by the plaintiff. The law is well settled that in cases where the alleged fraud goes to the legal existence of the instrument in question evidence, parol and otherwise, is admissible. Webster v. Smith, 72 Vt. 12, 47 Atl. 101; Cameron v. Estabrooks, 73 Vt. 73, 50 Atl. 638; Hartshorn v. Day, 19 How.
The plaintiff was properly allowed to show that after his injury he was taken to the Lewiston Hospital, remained there five weeks, and then went to his home at Rumford Falls, Maine, and also that before the alleged settlement he had taken counsel of and had been advised by an attorney that he saw no reason why the plaintiff had not a good case against the defendant. The fact that he was thus taken to and remained in the hospital had a bearing on the question of the extent of his injury and the resulting damages; and that he took counsel and received such advice tended to show that at the time of the signing of the release he had reason to believe that he had a valid claim against the defendant for damages — thus rendering it less probable that for the small sum of money received by him from the Company he understanding^ released it from all liability.
The plaintiff was injured August 14, 1906. On the 26th of the next month he wrote a letter to the Superintendent of the defendant company at Montreal respecting his (plaintiff’s) condition and need of assistance in living until able to work again. The receipt of this letter was acknowledged by the Superintendent in letter marked Exhibit “A”, stating that the plaintiff’s letter had been referred to Mr. Wells, the claims agent, “with a request that he communicate with you direct regarding your appeal.” The contention that exhibit “A” was
In giving his deposition the'plaintiff testified that, having no financial means, he in the spring of 1907 solicited subscriptions for his benefit, and when so doing saw Mr. Matthew McCarthy, at Rumford Falls, who gave him a dollar and wrote to the defendant company for the plaintiff. The question was then asked the plaintiff: “Did he, as you understand it, present a claim to the company and demand settlement?” Subject to exception, he answered: “No, I don’t think he did, because he said he would see what he could do and that is all there was about it.” On defendant’s objection all that plaintiff said in the deposition relating to McCarthy was excluded down to the question and answer here quoted, which were allowed to stand. As a result of the exclusion the question and answer objected to were rendered meaningless and consequently harmless.
In cross examination by plaintiff’s attorney, and subject to exception not relied upon in defendant’s brief, the claims agent testified that he received a letter from Matthew McCarthy, attorney at Rumford Falls, requesting a subscription by the defendant in favor of the plaintiff, which letter was dated January 19, 1907; that the witness made a voucher for one hundred dollars in favor of the plaintiff on February 25, 1907, and the plaintiff returned to the witness the check for that amount a few days after the interview between them at Montreal, March 18, 1907. The plaintiff testified to the interview referred to, the talk then had by him with the claims agent, and the representations made by the latter. According to the evidence all verbal representations by the claims agent to the plaintiff were made on this occasion. So far as appears, the plaintiff and the claims agent were the only persons present and they materially disagree in testimony as to what was said between them. After receiving the letter from McCarthy and before this interview at Montreal, the defendant sent to the plaintiff by letter the check for one hundred dollars, accompanied by a release for him to sign releasing and discharging the defendant from all liability. The plaintiff being told on inquiry the purport of the
It is not necessary here to refer particularly to more of the evidence to show the importance of what was said and done by the claims agent and the plaintiff on the occasion at Montreal. The declaration of the non-liability of the defendant by the former and his agreement to pay one hundred fifty ■dollars to the latter, were on the same occasion and so connected as to be parts of the same transaction. The declaration to which •objection is made was calculated to illustrate the character and ■object of the payment agreed to be made and was admissible as parts of the res gestae. Bank of Woodstock v. Clark, 25 Vt. 308; Mason v. Grey, 36 Vt. 308.
The claims agent on his examination in chief by the defendant testified that when he makes a payment in a case where he is advised by the company’s solicitor that there is no legal liability, the payment is called a gratuity, but such payments are never made gratuitously — as a matter of fact they are always in exchange for a full release from any liability. He was then asked whether what he had last expressed was a •statement of the facts with reference to the settlement with ■the plaintiff, and answered: “Yes, (and he clearly understood it so.”) Again the witness was asked whether he at any time in the course of the transaction with the plaintiff which resulted in the release intended to perpetrate a fraud upon him, .and answered, “Such an intention never at any time entered my mind. I made all my statements to Yaillancourt in good •faith (as clearly as I could express them, and felt convinced
The witness was further asked, “You may state whether in any of your conversations with Mr. Yaillancourt or in any of your letters to him you represented to him or intended to-represent to him that in the payment of this one hundred fifty dollars you required no release from him from any liability on account of the injury?” To the exclusion of this question and the answer thereto which need not be stated, the defendant excepted. The letters written by the witness to the plaintiff were already in the case and were the best evidence of what they contain. Since the question included them, its exclusion together with the answer was not error.
It is insisted that the plaintiff while cross-examining the claims agent was improperly allowed to examine him in identification of a book of rules such as are furnished by the defendant to its engineers, brakeman, and trainmen, and in force at the time of the accident. Yet as no copy of these rules has been furnished us, we have not sufficient information regarding them to pass upon the question.
Exception was taken to the argument of plaintiff’s attorney that if the defendant was liable and the sum paid to the plaintiff was grossly inadequate to the injuries he suffered, the terrible agony and pain, the loss of his legs, and the loss in the future, then it was an element of fraud to be taken into consideration in determining whether fraud was practiced on the plaintiff. The same question in effect is raised by exception to the charge. From what is said in the first paragraph regarding the .admissibility of evidence showing the extent of the injury, and of evidence showing that the plaintiff had been advised and had reason to believe the defendant was liable, it will be seen that the objection made to the argument and
At the close of the evidence the defendant moved for a verdict on the ground that upon all the evidence the plaintiff was not entitled to a verdict, and to thé overruling of the motion it excepted. The case, however, was for the jury. The evidence bearing upon the question of fraud was in character both oral and written and, as has been seen from that to which reference has been made, it was conflicting.
Among other things the court instructed the jury: “No direct proof of fraud or imposition or undue influence is required from a party endeavoring to set aside an instrument unduly obtained. It is seldom that m'en admit that they perpetrate a fraud in terms.” An exception was saved to the last sentence and it is relied upon in argument. Continuing, the jury were instructed that the party seeking to impugn an instrument _ on that ground must prove by a fair balance of evidence that it was obtained by fraud; that positive and direct proof is not required — circumstantial evidence if convincing by a fair balance of evidence is sufficient to establish fraud. The statement of which complaint is made is a matter of common knowledge, and in the connection used it is not subject to criticism.
Other exceptions were taken to the charge in this branch of the case, but the questions raised thereby have in principle been determined in disposing of the exceptions touching the admissibility of evidence and the motion for a verdict.
Defendant excepted to the refusal to charge in accordance with its first, second, third, fourth, sixth, and seventh requests. The first three requests are in substance embraced in the motion for a verdict and need not be further noticed. The fourth request: “This action was commenced by writ dated June 8, 1907. You will therefore find that from and after said date plaintiff knew that said action was pending in this court,” was properly refused. It is said that the replication sets forth that at the
The sixth request was: ‘ ‘ False representations as to the legal effect of an instrument cannot invalidate the instrument, as a party signing such an instrument is presumed to know its contents and has no right to rely upon the representations of the other party as to its legal effect.” The doctrine that a party is conclusively presumed to know the contents of an instrument signed by him does not obtain as against fraud. Consequently the request is not wholly sound in law and was properly disregarded. Fivey v. Pennsylvania R. R. Co., 67 N. J. L. 627, 91 Am. St. Rep. 445, 52 Atl. 472. Nor was it error to disregard the seventh request which was: ‘ ‘ The plaintiff sets up as an element of fraud that the defendant’s agent told the plaintiff as an inducement to get him to accept the one hundred fifty dollars that he had no cause of action against the defendant. Under such circumstances it would be necessary for the plaintiff in order to make out his case on that point to produce some evidence that the plaintiff did have a cause of action. This he has'not done.” It is said that it was part of the alleged fraud set up in the replication that the plaintiff had a good cause of action and that it was necessary to prove every element of the alleged fraud in order to maintain the action. But this is not so. It was necessary for the plaintiff to prove only so much of what he had alleged as was sufficient to establish the fact that the so-called release was fraudulently procured from him without any negligence on his part. Somers v. Richards, 46 Vt. 170; Bosworth v. Bancroft, 74 Vt. 451, 52 Atl. 1050.
Moreover, it was contended by the defendant that if its agent did so tell the plaintiff, it was but the expression of an opinion which did not constitute fraud, and the court in substantial compliance with another request of the defendant, charged that mere matters of opinion, so stated and understood,
This disposes of all the questions raised upon the trial of the issue of fraud, and no reversible error appears.
The only questions raised on the trial of the general issue are based upon the overruling of defendant’s motion for a verdict on the ground that upon all the evidence the plaintiff was not entitled to recover.
The law is well settled that the defendant was in duty bound to exercise reasonable care and prudence to provide the plaintiff a reasonably safe place in which to perform his work, and this duty it could not delegate to an employee without being responsible for the consequences of the negligence of such employee in the performance thereof to the same extent as it would be had the negligence been that of the company itself. Davis v. Central Vermont R. R. Co., 55 Vt. 84, 45 Am. St. Rep. 590; Kiley v. Rutland Railroad Co., 80 Vt. 536, 68 Atl. 713.
The evidence tending to show a clinker between the main line and the siding at the time and place of the accident, which caused the plaintiff to stumble and fall, was confined to the testimony of the plaintiff himself, and it was not wholly uncontradicted, circumstantially at least. Whether it was there as and in the condition testified to by him, and if so there, whether it rendered the yard in that locality not a reasonably safe place for the plaintiff to perform his duties as brakeman were questions of fact for the jury. But it is urged that the ease is wholly without evidence tending to show that a proper inspection was not made. By the rules of the company the performance of that duty was delegated to the station agent who testified that the place of the accident was half a mile away from his station, and that he could not see it from the latter place because of a curve there, and a building hides the view; that after the accident he was up where the plaintiff got hurt, "went to light my lamps”; and in reply to the question, "What time of day was this?” he answered, "I always go to light my lamps at eleven o’clock in order to get through my work”; that he had not been up to that point before that day. Testimony was given showing that a large number of trains passed over that road both day and night, and of an expert witness, living on the line of the road, that in
In view of the tendency of the evidence specified or referred to above, it cannot properly be said that there was no evidence tending to show that no inspection of that part of the yard was made before the accident on the day in question, nor can it be said that there was no evidence tending to' show negligence on the part of the station agent in not making such inspection at a time in the day earlier than that of the accident. Whether such early inspection was essential to the exercise of reasonable care and prudence in providing a reasonably safe place where the plaintiff was required to work in the performance of his duties, and if not made whether the want of it constituted negligence, were questions for the jury. Houston v. Brush, 66 Vt. 331, 29 Atl. 380; Chicago & Northwestern Ry. Co. v. Delaney, 169 Ill. 581, 48 N. E. 476; Maydole v. The Denver & Rio Grande R. R. Co., 15 Colo. 449, 62 Pac. 964; Babcock v. Old Colony R. R., 150 Mass. 467, 23 N. E. 325; Donahue v. Boston & Maine R. R., 178 Mass. 251, 59 N. E. 663; Ferguson v. Central R. Co. of New Jersey, 71 N. J. L. 647, 60 Atl. 382.
If there was negligence in-the performance of the master’s duty in the respects named, the question of how the clinker came where the evidence tended to show it was — whether by the act of some engineer or fireman who threw it from the cab, as claimed by defendant — does not arise, and consequently the fellow servant doctrine is not involved. Davis v. Central Vermont R. R. Co., and Kiley v. Rutland R. R. Co., cited above.
It is said that the plaintiff failed to show himself free from contributory negligence. The evidence tended to show the location of the clinker about forty-five feet — -probably a little less — - easterly of the switchstand at the westerly end of the siding; that the plaintiff went past it in going the first time from the train to the switch that day, and again in going back to the train
It is further said that the plaintiff assumed the risk. The risk was not an ordinary one incident to the plaintiff’s employment, for the tendency of the evidence is that it existed as the result of the negligence of the master itself. And as an extraordinary risk he did not assume it as a matter of law, since the evidence tends to show that no knowledge of the presence of the clinker was had by him prior to the accident, and whether it was so plainly observable that he will be taken to have known of it and to have comprehended the danger was clearly for the jury to determine. Dumas v. Stone, 65 Vt. 442, 25 Atl. 1097; Dunbar v. Central Vt. Ry. Co., 79 Vt. 474, 65 Atl. 528; Morrisette v. Canadian Pacific R. R. Co., 74 Vt. 232, 52 Atl. 520; Place v. Grand Trunk Ry. Co., 80 Vt. 196, 67 Atl. 545; Drown v. New England Tel. & Tel. Co., 80 Vt. 1, 66 Atl. 801. Nor in this
Judgment affirmed.