Rogers v. Atchison, Topeka & Santa Fe Railway Co.

CONREY, P. J.

Action to recover damages for personal injuries suffered by the plaintiff, caused by negligence of the defendants. The plaintiff, at the time when the injuries were received by him, was employed as a switchman on the railroad of the defendant corporation. Defendant Shortridge was foreman of a switching crew and engine of the defendant corporation. The defendants appeal from the judgment and from an order denying their motion for a new trial. We observe, however, that the verdict as shown in the transcript was against the Railway Company only, and we assume that , the judgment (which is not shown in the transcript, but entry of which is recited in the notice of appeal) also is against the Railway Company alone.

In addition to other grounds of defense which we find it unnecessary to consider, the defendants pleaded that for a good and valuable consideration paid to the plaintiff by the defendant corporation, the plaintiff executed to said corporation an agreement in writing releasing it from all liability arising from the personal injuries claimed to have been sustained by him on the occasion referred to in the complaint. The accident occurred on the sixth day of February, 1913. On April 28, 1913, plaintiff received from the Railway Company (hereinafter called the appellant) the sum of $56.42, and executed a release which we will call the first release. On September 15, 1913, plaintiff received from appellant the further sum of $350, and executed another document which we will call the second release. The releases are identical with each other in form. They refer specifically to the injury sustained by respondent while in the performance of his duties as a switchman for appellant on the sixth day of February, 1913, and purport to fully release, discharge, and satisfy all claims, demands, or causes of action arising from or growing out of said injuries. In each of the releases respondent, in his own handwriting, made the following statement above his signature: “I have read the above voucher, receipt and release and’ fully understand the same.”

[345]

It is conceded, as it must be, that the first release upon its face purports to be a full and complete release, and in that respect is identical with the second. To overcome the effect of the releases respondent gave testimony offered by him for the purpose of proving that both payments were for time lost after the accident, and were calculated upon the basis of a percentage of the wages which respondent would have earned if the accident had not occurred. As a part of the same attempt to destroy the effect of the releases, respondent testified that his “job was at stake”; that he was assured by appellant’s agent that the instruments which he signed were only receipts for wages or for lost time. The testimony thus received was admitted over objections of appellant, specifying, among other things, that the terms of a written contract could not thus be changed.