
    James R. Purdy, Resp’t, v. The Rome, Watertown & Ogdensburgh R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 13, 1891.)
    
    Railroad—Negligence—Release from damages by employee—Consideration for—When no bar.
    Where plaintiff had been in the employment of defendant for a number of years as baggageman on a passenger train, and in obedience to a letter left his train in the depot and went into the office, saying to the ass'stant superintendent: “I came up to sign that paper," (which was a general release of defendant from all liability to plaintiff for any negligence), but did not read it and after signing it immediately went back to his train, Held, that there was no consideration for the execution of the paper by plaintiff, and the paper was void and no bar to a subsequent action by him for injuries received through such negligence.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment of circuit entered upon verdict of jury in favor of plaintiff, and order denying new trial on the minutes.
    
      Edmund B. Wynn, for app’lt; George S. Kloclc, for resp’t.
    
      
       Affirming 23 N. Y. State Rep., 469.
    
   Peckham, J.

After a careful consideration of all the evidence in this case we are brought to the conclusion that there was sufficient to go to the jury upon the two questions of the negligence of the defendant and the freedom of the plaintiff from any contributory negligence.

There is one other point made by the defendant which arises upon the so-called release put in evidence by it, and in which the plaintiff agrees and covenants that the company shall in no case be liable for any damage to the person or property of the plaintiff by reason of its own negligence, or that of defendant’s agents or servants.

Some question was made on the trial, and by the evidence of plaintiff, as to whether the release when he signed it was filled up, and thereupon became a perfect instrument duly executed in form and substance. It is now claimed that the defendant did not ask, in proper form and time, to go to the jury upon that question, but waived it by its motion for nonsuit, and hence it cannot now be heard to insist that it was for the jury to pass upon as a fact.

We think, however, that if such a question were material, there was a sufficient request to have it submitted to the jury, and if there were error in the decision the exception was valid.

In deciding that the release was no bar, the court assumed that it had been formally executed as a complete instrument, and hence took no account of the plaintiff’s evidence on the subject. It is proper for us to make the same assumption, and if we then find the release was no bar to the maintenance of the action, the question of fact upon which defendant asked to go to the jury becomes of no moment.

The plaintiff had been in the employment of the defendant for a number of years prior to the execution of the paper. At that particular time he was engaged in performing the duties of a baggageman on a passenger train. It does not appear that he was when first employed engaged for any particular time, nor for any particular service. It was a general employment, and he was subject to the orders of the company. He was working for it as a baggageman in 1879, and continued as such up to and after the execution of the paper in August, 1881. The assistant superintendent of the defendant (who was the man that procured the execution of the paper) said, “ there was no compulsion about signing the contract, nor any new consideration for it. He simply signed the contract and the defendant kept on employing the plaintiff as a baggageman.” In other words, continued the already existing employment. The plaintiff says he went up to the office of the superintendent in Watertown and left Ms train in the depot waiting for his return. He was gone but a few moments, and went to the office in obedience to a letter he had received, and when he went into the office he said to the assistant superintendent: “I came up to sign that paper.”

The plaintiff says he did not read it, but signed it at once and went back to his train. The paper reads as follows: “ Whereas the Borne, Watertown & Ogdensburgh Bailroad Company have employed J. B.-Purdy in the capacity of general servant at a stipulated rate for his services:

“ How therefore, in consideration of such employment and the compensation agreed to be paid therefor, the said J. B. Purdy hereby covenants and agrees that in no case shall the said railroad company be liable to the said J. B. Purdy for any damage or injury to the person or property of the said J. B. Purdy by reason of the negligence of the said railroad company, its agents, servants or employes, and that the said J. B. Purdy accepts such employment with full knowledge and notice of all the risks involved therein.”

Upon this evidence we think it clear that there was no consideration for the execution of the paper by the plaintiff. He was already in the defendant’s employment; no new employment was tendered to or accepted by him, and there was no promise that the employment he was already engaged in should continue after the execution of the paper for one moment of time nor was its execution made a condition of the continued employment of the plaintiff.

It constituted a simple gratuity on the part of the plaintiff to the defendant, relieving it from a liability or responsibility which then existed in favor of plaintiff, and in obtaining which the defendant surrendered and promised nothing. , The plaintiff was in precisely the same position he was prior to its execution, excepting he had given up to the defendant all claim upon it which he otherwise might have by law, and he had received not one particle of consideration for such surrender of his legal rights.

We think the paper was void for lack of consideration.

In thus deciding we do not intimate that if the defendant had given some kind of a consideration for the paper, it would have been valid.

It might even then be urged that public policy forbids the exaction of such a contract from its employees by railroad and other corporations, and upon that question we desire to express no opinion at the present time.

The judgment is right, and should be affirmed, with costs.

All concur, except Gray, J., not voting.  