
    Charles M. Shaw, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    Fourth Department,
    May 6, 1908.
    Railroad — negligence — injury while coupling cars— release.
    Assuming the correctness of a charge that a plaintiff who was injured while coupling cars was not entitled to recover if he knew the coupling device was . out of order, there can he no recovery where the proof shows beyond question that he knew that the device was out of order.
    Where a release was signed when plaintiff had returned to work, six weeks after the accident, and it appears that he had ample time to read it and later cashed the draft, given in consideration of the release, and retained the money for two years, a verdict that the release was obtained by fraud and misrepresentation, based on plaintiff’s contention that he was drunk at the time and did not understand the nature of the release, is against the weight of evidence.
    One discovering that a fraud has been practiced against him must act promptly.
    Appeal by the defendant, The Delaware, Lackawanna and Western Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 9th day of May, 1907, upon the verdict of a jury for $5,750, and also from an order entered in said clerk’s office on the 16th day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      A. D. Jenney, for the appellant.
    
      Theodore E. Hancock and Charles P. Wortman, for the respondent.
   Kruse, J.:

The plaintiff, a brakeman in the defendant’s employ, had his right arm crushed while attempting to uncouple one car from another. He contends that he was hurt through the fault of the defendant,’ the precise grounds of negligence urged against the defendant being a defective automatic car coupler.

It seems that the coupler, when in good condition, was operated by means of a lever attached to the end or side of the car, thus making it unnecessary to go between the cars. In this instance the chain which was used in lifting the pin had become disconnected, so that the pin could not be raised by means of the lever, making it necessary, as the plaintiff claims, for him to go between the cars and raise the pin with his fingers. In doing that his arm below the elbow was in some way caught between the dead blocks.

The car in question did not belong to the defendant. Very little of its history is known so far as the record discloses. How long it had been defective is a matter entirely of conjecture, and it is equally uncertain what was the condition of the car when it passed the inspection points (which are at Syracuse and Binghamton). Indeed, it does not appear when it passed through either of those points, nor when it came onto the defendant’s railroad. We have the bare fact that the car was left at Cortland (where this accident occurred) the day before the accident, and,' so far as we know, the defect was first discovered by the plaintiff just before he was hurt.

That the appliance would not work was known to the plaintiff before he went between the cars to uncouple them, since he had tried to uncouple the cars by using the lever, which failed to work. It is now urged on behalf of the defendant that the plaintiff was not himself free from negligence, and that, in any event, he assumed the risk of going between the cars as he did.

The trial court charged the jury, in substance, that, while under the statute, it was the duty of the defendant in the first instance to supply a safety coupling device, or an automatic coupling device, that after having done that, its obligation to keep it in repair was the same as any other part of its equipment, and further charged them that if the plaintiff knew that the coupling device was out of order when he went in between the cars and gave the signal to the engineer, he could not recover, leaving it a question of fact for the jury whether the plaintiff knew that fact.

If that charge was correct, and for the purposes of this appeal we must so regard it, it is difficult to see how there can be any liability against the defendant. I think the proof showed beyond question that the plaintiff knew that the coupling device was out of order. In fact, there was no occasion for his going between the cars at all, except, as he claims, the automatic coupling device would not work.

There is, however, another question in the case which we think requires the reversal of this judgment and the granting of a new trial. The plaintiff was injured on the 26th day of August, 1904, and was taken to a hospital on the same day — Friday. On the following Monday, as the plaintiff claims, the defendant’s claim agent had an interview there with him regarding his injuries, and about six weeks after that the matter was compromised, according to the defendant, and a release given by the plaintiff. Had the transaction been closed at the hospital there might be much more reason for the contention which the plaintiff now makes that an undue advantage was taken of him, on account of the pain and suffering and the mental disturbance which he was then undergoing. But such was not the case. It was not until after the plaintiff had gone back to work for the .defendant that the release was given by him.

The plaintiff was in the hospital about two weeks, and under the care of a physician about five weeks. He worked in the yards at Cortland for about two weeks, and then the defendant sent him to Syracuse, where he worked at “ throwing switches ” for about two and one-half weeks. The defendant’s claim agent testified that he saw the plaintiff for the first time on September thirteenth at the hospital; that he said to him that when he was in condition, and desired to talk with him, he would be very glad to take up the subject of making some compensation for the injury; that the matter was next discussed at Cortland, October twenty-first; that the plaintiff then said he thought he ought to have $500, and that he replied that he would take up the matter later with the company ; that the next conversation was November fourth at Syracuse, when a settlement of $250 was agreed upon, and the next day the matter was closed up.

The plaintiff received a draft for $250, payable to his order, made by the defendant’s claim agent, directed to its treasurer-, and at the same time signed a receipt for that sum, acknowledging full and final payment of all claims and demands on account of personal injuries received by him on August 26, 1904, specifically stating the nature of the injuries, and at the same time executed a general release to the defendant. The plaintiff admits that he executed the receipt and general release, and that he received the draft; and he also admits that he had the draft cashed at one of the banks in Syracuse.

He denies, however, that he. understood the contents or nature of the receipt and release. He claims that the talk between himself and the claim agent on the day before he received the draft and executed the papers was to the effect that the defendant was willing to give him $250 to help him along, the defendant’s claim agent saying that he had' no claim against the company, andDthat there was nothing said about the release.

This occurred about half-past four o’clock in the afternoon. The plaintiff went to work at five o’clock, and worked until seven o’clock in the morning, as was his custom. He went to work again at five o’clock, and in the evening he was sent for, as he says, and went to the office, was told there that there was a check, and he would have to sign the receipt. Plaintiff says that he signed the papers, but did not read them, supposing that he was signing a receipt for the check. He admits that he had plenty of time to read them through, but that he was intoxicated at the time.

The claim agent mailed the papers from Binghamton to Syracuse to the defendant’s superintendent, and was not present when the draft was delivered and the papers executed by the plaintiff, but the two subscribing witnesses to the release testify to what occurred. One of them was chief clerk of the superintendent, and the other was timekeeper. The chief clerk testified that the plaintiff came to the office and asked whether anything had come for him; that he replied that there had, and went to the safe and took out the papers; that he handed the plaintiff a release and voucher; that the plaintiff read them over and signed them. The other subscribing witness corroborated this testimony. Both testified that the plaintiff was not intoxicated at that time. This was on Saturday. On the following Monday morning the plaintiff received the money upon the check, indorsing the same, but claims that he did not even then read the check.

He retained the money for about two years. Shortly before the commencement of this action his mother tendered to the defendant’s superintendent at Syracuse her check upon the Onondaga County Savings Bank for the sum of $250, which was refused. This was the last of September, 1906, and the action was commenced on the eighth of October following.

On behalf of the plaintiff it is contended that the evidence shows, ■that the release was obtained by fraud and misrepresentation ; and that the $250 was not given in settlement of the plaintiff’s claim. That,question was submitted to the jury, and they found with the plaintiff upon that question. While we think that the learned trial judge was required to submit that question to the jury, we are of the opinion that the finding was contrary to the weight of the evidence. It is quite unbelievable that a man capable of switching cars, and able afterward to detail the occurrences of a transaction,, should be so far under the influence of liquor at the time as not to be able to read and understand the papers which he signs, and the nature of the transaction. Beyond that, he retained and indorsed the check, and obtained the moneys, when he himself admits that he was sober, and no offer was made to return'the money until about two years afterward, and then by his mother. It may be true, as plaintiff’s counsel contends, that if the $250 was paid to him as a mere gratuity, and not to settle and compromise his claim, he was under no legal obligation to return it. (Wilcox v. American Telephone & Telegraph Co., 176 N. Y. 115, 118.) But we think that the circumstances show that the money was paid to settle whatever claim he had, and that he so understood; at all events, we are clearly of the opinion that such is the weight of the evidence. Even if some fraud had been practiced upon him in making the contract of settlement, so that he could disaffirm the same, he was required to act promptly upon discovering the fraud, and pay back the money. (McLaughlin v. Syracuse Rapid Transit Railway Co., 115 App. Div. 774.)

The question here is not whether the plaintiff sustained damages amounting to $250 in the loss of his arm, but whether a settlement of a claim, disputed and doubtful at best, should be upheld where the great preponderance of the credible evidence fairly shows that the compromise was fairly made. Such a settlement, in a negligence case, like any other, should be úpheld. We think this case falls within that class.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event. 
      
       See Railroad Law (Laws of 1890, chap. 565), § 49, suhd. 4. See, also, Laws of 1893, chap. 544, as amd. by Laws of 1896, chap. 485.— [Rep.
     