
    RAILWAYS —NEGLIGENCE —RELEASE FROM LIABILITY FOR. INJURY.
    [Circuit Court of Lucas County.]
    The Lake Shore & Michigan Southern Railroad Company v. Frederick Ehlert.
    Decided, June 20, 1903.
    
      Railway Company Negligent — In Leaving Locomotive in Incompetent Hands — Which Eliminates the Fellow-Servant Question — Release from Liability for Injury — Should be Based Upon a Fair Understanding.
    
    1. Where a locomotive was left in charge of one whose knowledge of its workings was uncertain, and no effort seems to have been made by the company to ascertain directly what his knowledge was of the action of s-team and the operation of the engine, and an accident resulted which was due to his lack of such knowledge, the company will be held to have been negligent, and the fellow-servant question to be eliminated.
    2. A release from liability for injuries is not binding, where it does not appear that the person signing the release understood its nature and effect.
    Haynes, J.; Parker, J., and Hull, J., concur.
   In this case a petition in error was filed to reverse the judgment of the court of common pleas which the defendant in error, the plaintiff below, recovered against the railway company for alleged injuries sustained by him through the negligence of the servants of the company and of. the company. Ehlert had been employed by the railway company for several years; he was engaged at a certain co'al chute at Air Line Junction. A certain engine had arrived in the yard and been taken to a place near the water tank and was there left in the possession of a fireman, acting in the capacity of a hostler, by the name of Toner, who ran the engine up to the coal chute to a certain, number or to a platform, and the cflrnte was then lowered for the purpose of filling the tender with eo'al. After he had placed the engine at the platform, notice was given to him to back up the engine, that the chute did not feed; thereupon he reversed his engine, as he says, and loosened the brake, let go the air brake, and immediately the engine- started back. Ehlert, who was on this chute, seeing the engine starting back suddenly, as he says, thought he would be liable to be hurt or crushed; thereupon he dropped down between the coal chutes and the locomotive and received injuries, as he claims by reason of the negligence alleged.

Now two questions 'are presented, it seems to- us, in the case: Whether this man Toner, engineer -or hostler, was a competent person or not, and if not, whether the company had taken reasonable steps before allowing him to operate this engine, to ascertain whether he was or was not a -competent person; and, second, whether or not -a certain paper writing, which was signed by Ehlert, purporting to be a release of all claims against the company was binding upon him, or whether by reason of the facts which he states in his petition, the paper was mot binding.

Now Toner had been in the employ of the company -as a fireman for some time, and for about a year h'a-d been running -an engine with an engineer; amid it is claimed that he had, from time to time, exercised the duties of engineer in operating a locomotive, and had become familiar with the methods of operating locomotives, and that he was, at' the time he went upon this engine and took it up to the coal chutes, a competent person for that purpose, and -the defendant -offered the testimony of some of the persons with whom he has operated 'as engineer and some persons in -charge of the shops, in regard to his qualifications as an engineer, or as a hostler, for the purpose o-f managing a locomotive under the circumstances under which it was placed at the time of this -accident.

The jury found he was not a competent person, -and it is claimed that was against the weight of the evidence. Now we have carefully read the testimony and examined it, and we are -of the opinion that the jury was justified in coming t-o the conclusion that they did. It appears that this young man, from .his own examination— his answers to the questions put to him when he was upon the witness stand- — -did not have that knowledge of steam and its effects upon the steam chest that would make him a competent person to rum and nse an engine under the circumstances he was using this engine. It seems that when he reversed the engine and opened the air brake, there was some steam in the steam chest, sufficient to send .the locomotive back and move it, according to the testimony of some of. the witnesses, quite rapidly. It appears that' it is the custom, and it seems to be a proper custom, when am engine is stopped, for the stop cocks to be opened, so that the steam in the steam chest will pass out and off; that is, if they are left closed, so much steam as happens to be in the steam chest at the time the locomotive is stopped remains there; and its expansive force remains and may remain for some time, according to circumstances; and it seems to us from the testimony that he was not familiar with this fact, certainly not as familiar with this fact as he ought to have been to be left in charge of a locomotive, placed in the position he was placed, where, upon his handling would depend the safety of others. Nor do we think that the company had exercised sufficient care in ascertaining as to the qualifications of this man to handle this locomotive before pemnitt'imig him to do so. It does not seem that any steps had ever been taken directly to ascertain wh'at he did know in regard to the locomotive in order to operate it, or the effects of steam in the steam chest, if left there under the circumstances which he left it at the time. And we think the company was derelict in its duty in allowing this man to take possession and use this engine without further knowledge of his qualifications.

We therefore say that we are of the opinion that we may not disturb the verdict of the jury in respect to -these questions. We are inclined to the opinion their conclusions are correct.

Now after his injury, the party signed a release; no question but that if is a release in form. It appears that he went down there to go to work. He says he went and the foreman told him that before -he went to work, he must go into the office and see the person who had charge there. At any rate, he went'down and did go to the office. He found there the claim agent and the foreman, and perhaps another party; and he was asked to give a statement in regard to the manner in which the injury occurred. He was asked certain questions and he answered -them. We think there is no doubt about that, although he, in his testimony, is inclined to deny that he did. Although the plaintiff admits that the statement was signed by Mm, it was not offered in evidence; it was not among tbe papers in the case.

At the same time, another paper was shown t'o.him, which is a release, amid it was read to him. We think there is no doubt that it was read to him. The testimony of the claim agent, Brown, 'and of the foreman, also the testimony of another party, Shambo, indicates that it was read to him; Curtis and Brown did not seem to see Shambo there, but he testifies as to what took place there. And after it' was read it was signed by plaintiff 'at the request of the claim agent. He also signed a receipt for one dollar, which was laid down on the table, and which it seems he took away. At first he said he was going without the dollar, but they told him to take if.

Now he claims he did not understand the purport of that paper, its nature and its character; and that he did not understand that he was releasing the company of all claims he might have against it — of his right to maintain an action. As to the character of some of the statements in the nature of admissions, we think he, of course, understood it. He could talk English -pretty well, and it was in proof that he was an ordinarily intelligent man, and could understand enough about the facts to understand these matters.

The real point in our minds is whether he understood the nature of the term “release,” and that he was releasing all claim or any rights he might have against the company. And we are inclined to the opinion that the jury were justified in finding that he did not know that. We have read the testimony of Brown and Curtis, the testimony of Shambo;, as well as the t'estimonj of Ehlert himself, in regard to what took place at that time, what transpired there. While they read the release to him, wM-eh he signed, and perhaps the receipt, the nature of that which was transpiring, it seems to us, was not sufficiently explained to him. There seems to be a total want of any conversation, or any agreement between Cur7 tis, Brown and Ehlert, that he was negotiating with them; that they were negotiating with him for a release of all claims he had against the company for the injuries which he had received, or that he knew without''any explanation on their part’ what he was negotiating for. He says that they sat at a table and took down his statement and had him sign a paper,. and laid down a dollar. He says he asked them what the dollar was for; they said for him to take it out and spend it.

E. D. Pofter, for plaintiff in error.

D. H. Gommager, Ashion Goldham and Iiarvey Scribner, for defendant in error.

We do not think that is a proper manner in which to settle a ease of that kind, a ease of that importance in regard to any injury. The parties -with whom such dealings are had should be negotiated with, and the facts explained fully and perfectly — that they are buying him off, that they are purchasing from him a release from all damages or all claims he anight have, or be supposed to have4 -against them for the injuries that he has received at the time he was hurt.

For these reasons we are inclined to the opinion that the verdict of the jury is correct and 'ought to be sustained. We think that the negligence, if negligence there was, is attributable to the company; so the question of fellow-servant does not arise in the case; so we understand the charge of the court to the jury to be. The charge seems to be very full, and stated the law clearly to the jury; so they seem to have understood the issues fully.

For the reasons stated, the judgment of the court of common pleas will be affirmed without any penalty.  