
    BOUTTEN v. WELLINGTON AND POWELLSVILLE RAILROAD CO.
    (Filed May 28, 1901.)
    1. BURDEN OP PROOF — Directing Verdict.
    
    A verdict can. not be directed in favor of one upon whom rests the burden of proof.
    2. RELEASE —■ Consideration — Fraud—Seal—Railroad—Negligence —Personal Injuries.
    
    In an action against a railroad for injuries, evidence that a release by the plaintiff was without consideration and fraudulent, was sufficient lo warrant the submission of the case to the jury.
    3. RELEASE — Consideration—Fraud—Seal—Railroads—Negligence —Personal Injuries — Burden of Proof — Presumption.
    Where, in an action against a railroad for injuries, the defendant sets up an alleged release from the plaintiff, which recites no consideration, and the evidence in support of plaintiff’s allegation of fraud and mistake in signing the release and want of consideration, was uneontradicted, the burden is upon the defendant to rebut the presumption of fraud arising from want of consideration.
    4. PRESUMPTIONS — Seal—Consideration.
    The presumption of consideration from a seal is liable to rebuttal even where a consideration is recited in the deed.
    Montgomery, J., dissenting.
    ActioN bv Thomas Boutten against the Wellington and Powellsville Eailroad Company, beard by Judge íl. B. Btar-buck, at Spring Term, 1900, of tbe Superior Court of Bertie County.
    Action for damages received on tbe track of tbe defendant. Plaintiff testified in bis own bebalf as follows: ‘‘Last year I was at Ahosky, in the employ of the Norfolk and Carolina Railroad Company. Had started to- my work. Work carried me to this side of Stony Creek. I was walking along the Wellington and Powellsville Railroad track. Was getting $15 a month. I was taken sick while walking along, and laid down on the track. The first thing I knew the train was on me. I had been drinking. Drank half pint that day. At this place the Norfolk and Carolina used the Wellington and Powellsville track (narrow gauge). Runs three miles along this track. I was lying across all three of the rails, my head on the cross-ties just outside of the Norfolk and Carolina rail. It was not customary to run a train on the Wellington and Powellsville on Sunday. Defendant’s train struck my legs, and dragged and pushed me along the track about ten feet. I hallooed when it struck me. They stopped. It was in the day time. It was a straight stretch coming from Ahosky to where I was, two miles from Ahosky. I was sick three months; hurt in my hip and legs; one of any toes mashed to pieces. I was asleep when the train struck me.” On cross-examination: “I have never been paid anything on the release, which is as follows: Whereas, the undersigned was hurt and injured on the track of the Wellington and Powellsville Railroad Company on or about the 19th day of February, 1899, and claims that the injury was the result of carelessness of said company in running its train, and which carelessness and liability the said company denies: Now, in consideration of .... dollars this day paid to him in full and final compromise settlement of all claims and rights of action against said company, the said .... does hereby acquit, discharge, and release said Wellington and Powellsville Railroad Company and its officers, servants and agents from any and all liability to him on account of said injury, and does hereby satisfy and receipt to them in full of all demands on account thereof. Witness my band and seal, tbis lOtb day of April, 1899. Tbos. (bis X mark) Bowden. (Seal.)’ I signed tbis paper before Mr. Copeland, and made my mark to it. I can not read or write. I tbougbt it was a paper that enabled Uncle Eli Williamson to get bis money for waiting on me while I was laid up with tbe injury. Tbis is all I understood about it. I signed it so be could get paid. Did not know tbe nature of tbe paper. Eli Williamson bad told me before the paper came to me to be signed that that was the only way be could get bis money. I was at bis bouse during my sickness. Mr. Copeland, tbe postmaster, brought the paper to me. No money was paid to me. I was drunk — was drunk sick — when I laid down. Don’t know bow long I laid there before tbe train came along. I saw it coming towards me. Tbe train was running pretty fast when it struck me. I think it was as much as half a mile from me when I first saw it. Don’t know whether it was a mile. I saiv it plain enough to tell that there was no headlight' on it. It was just before sunset. I did not get off tbe track because I was not able. My feet were in middle of track. It was three months after I was hurt when I signed tbe paper. I was sitting up: I wanted Eli to be paid, and I signed tbe paper so he could get bis money. He bad taken care of me and nursed me during my sickness. Dr. Mitchell attended me as a physician. Defendant’s superintendent told me be ■was going to pay tbe physician also. I do not know whether he paid him. The paper was not read to me. Nobody was present when it was signed, except Copeland and Uncle Eli. Copeland is tbe postmaster. Eli is a colored man.” (Plaintiff is a colored man.) Defendant moved to dismiss under the statute as in case of nonsuit. Motion allowed. Plaintiff excepted, and appealed from tbe judgment.
    Erom a judgment for the defendant, tbe plaintiff appealed,
    
      
      81. Leon Scull, an-cl IS. B. Winborne, for tibe plaintiff.
    
      Martin & Peebles, and Francis D. Winston, for the defendant.
   ClabK, J.

It was error to nonsuit the plaintiff and thereby take from Mm the right to have the jury pass upon the defence set up by the defendant. Under our system of procedure the tribunal for the trial of disputed allegations of fact is a jury, not a Judge. So- important and sacred is the right that it is protected by provisions in both the State and Federal Constitutions. Section 19 of the Bill of Bights (now Art. I) of the State Constitution, says, “The ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”

When a party upon whom rests the burden of proof fails to introduce any evidence, the Court can direct a verdict against him, or if he is the plaintiff, direct a nonsuit. But the Judge can not direct a verdict in favor of a party upon whom rests the burden of proof, for that would be a finding by the Judge that his evidence is true, which is expressly forbidden by the act of 1196 (now Code, 413) — “No Judge shall give an opinion whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury.” If there is no evidence to the contrary, all the Court can do is to say to the jury that “if they believe the evidence” to find the issue in his favor. Spruill v. Ins. Co., 120 N. C., 141, with cases therein cited and a long line of cases-since citing and approving it.

Here the plaintiff introduced evidence tending, to sho-w that though there was contributory negligence upon his part, the proximate cause of the injury was the subsequent negligence of the defendant, who had the “last clear chance.” The plaintiff could not have been nonsuited upon that evidence, and it is not even contended that he could be. The defendant set up in defence an alleged release, to which, the plaintiff filed a reply denying the same was signed by him for the purpose of a release, alleging fraud and mistake and that no consideration was paid.

The defendant contends that the signing of the release being proven, the burden was upon the plaintiff to prove the matters to impeach it, and that there being no evidence to do this, a nonsuit was proper. But firstly, it is alleged, and the evidence is uncontradicted, that not a penny, nor any consideration whatever, was paid the plaintiff, and indeed the release itself appropriately leaves. the consideration blank. It was therefore nudum pactum. But it is said that a seal imports a consideration. This, however, is only a presumption and liable to a rebuttal even where a consideration is recited in a deed solemnly executed and sealed. Barbee v. Barbee, 108 N. C., 581; S. C., 109 N. C., 299; Smith v. Arthur, 110 N. C., 400; Shaw v. Williams, 100 N. C., 272. In this last case (at page 281) Smith, C. J., says: “And so every release must be founded upon some consideration, otherwise fraud must be presumed. 2 Dan. Ch. Pr., 766; Story Eq. PL, sections 796, 797.”

Not only is fraud presumed from the absence of consideration, but it is alleged that the plaintiff was “misled and deceived.” There is both allegation and proof that the plaintiff is ignorant and unlettered, unable to read or sign his name, that the paper was not read over to him, that he was in physical suffering from his wounds; that the man at whose house he was staying during his confinement from his wounds, told him the paper was to enable him to get his pay from the railroad company for his taking care of plaintiff while wounded, and that, under the impression it was a paper of that kind, he signed it, but he did not know that it was a release of his claim for damages against the company, and that no consideration was ever paid him to give such release. It seems tbe railroad company was to pay for tbe plaintiff’s board and nursing while wounded, and tbe doctor, too, for tbe witness says “tbe superintendent told me be was going to pay tbe physician also.” It does not appear that even tbe board and nurse hire have been paid, but if they bad been, such payments might be taken into consideration in adjusting a reasonable sum to be paid to plaintiff for bis injuries if sustained by tbe negligence of defendant. Payment of tbe nurse’s bill, bad it been shown, would have been no recompense to plaintiff for injuries of tbe nature here in evidence, and which bad then detained him in bed for three months. This evidence tending to show that tbe signature, made by cross-mark, was procured by imposition or mistake, should have been submitted to a jury. Tbe scroll, made, too, by other bands than tbe plaintiff’s, following bis cross-mark, can not have tbe magical effect to shut off investigation by a jury of tbe allegation and proof offered to show that tbe release was not given fairly and knowingly by plaintiff, independently of tbe presumption of fraud which arises from tbe absence of any consideration given plaintiff for bis injuries or for tbe release. That a release is procured from a man who can not read it, without its being read over to him or explained, is itself a suspicious circumstance. It may be that defendant can prove that it was read over to plaintiff, and also that a consideration was paid. An opportunity should be given it to do so. °

This case differs from Wright v. Railroad, 125 N. C., 1, in that there tbe issue of fraud was submitted to tbe jury. Tbe release recited tbe consideration and tbe evidence proved it, and there being no evidence of fraud, this Court held that there being not a scintilla of evidence of tbe affirmative, the Judge should have directed a verdict on that issue against tbe party alleging tbe fraud. Nor is this case like Dellinger v. Gillespie, 118 N. C., 737, which properly held that tbe negligence of a party to a written contract in voluntarily signing it, without reading it, will not permit him to contradict its terms by parol. In that case there was a consideration, the party could read but was too careless to do so, and there was absent all the circumstances here in evidence which tend to show imposition or mistake, trick or device. The Court in that case rests the case on this feature, “it is plain that no deceit was practiced.” In the present case there was allegation to the contrary, and the proof offered in support was for the jury to pass upon, and not the Judge.

Error.

MoNtgomjbby, J.,

dissenting.

The plaintiff brought this action to recover from the defendant damages for personal injuries suffered by the plaintiff by being struck by one of defendant’s locomotives. The defendant pleaded a release and settlement, and also contributory negligence on the part of the plaintiff.

The contributory negligence of the plaintiff and the last clear chance of the defendant by which the plaintiff’s injury might have been avoided were matters not considered in the trial below.

The action was dismissed by his Honor upon the motion of the defendant after the plaintiff’s evidence was in — his Honor holding that, upon the plaintiff’s own testimony, he was not entitled to recover.

The release, which was under seal, recited the injury of the plaintiff by the defendant’s train and the plaintiff’s claim that he ivas hurt by defendant’s negligence, and that for and in consideration of (blank) dollars the plaintiff acquitted, discharged and released the defendant from all liability on account of the injury. If the release, being under seal, had mentioned no consideration, the law would have raised a conclusive presumption in the absence of fraud or mistake that a consideration bad been received by tbe plaintiff. But it was undertaken in tbe release to set forth tbe consideration in dollars and cents, and tbe amount was left in blank. Tbe release was therefore of itself no more than a blank piece of paper. Pepper v. Harris, 73 N. C., 365. But when tbe plaintiff was cross-examined, tbe release was shown to him and he admitted that be bad executed it, and mentioned tbe consideration for which be bad done so. He said, “I thought it was a paper that enabled Uncle Eli Williamson to get bis money for waiting on me while I was laid up with tbe injury. I signed it so be could get pay. Eli Williamson bad told me, before tbe paper came to me to be signed, that that was tbe only way be could get bis money. I was at bis Louse during my sickness. I wanted Eli to-be paid, and I signed tbe paper so he could get bis money. Pie bad taken care of me and nursed me during my sickness.”

Tbe plaintiff in bis reply alleged that “be bad been misled and deceived into signing tbe paper,” without intimating by whom be was deceived or misled, and in what manner. If that could be, under our liberal system of pleading, considered as charging a fraud on tbe defendant in tbe procuring o± tbe execution of tbe release, tbe plaintiff’s own evidence disproved it. It is true that be said be pould neither read nor write, and that tbe paper was not read to him; but, on tbe other band, he did not ask to have it read to him. No trick or device was resorted to by tbe defendant to procure tbe execution of tbe release, and tbe plaintiff signed it without asking that it be read to him. If, under such circumstances the defendant practiced a fraud on tbe plaintiff, it was accomplished through tbe plaintiff’s own negligence. Gillespie v. Dellinger, 118 N. C., 737.

The plaintiff’s counsel in this Court insisted that tbe release set up in tbe defendant’s defence was a plea in avoidance, and. that tbe "whole matter should have been submitted to tbe jury. That tbe ruling of bis Honor was equivalent to an affirmative finding of an issue, and could not be found by tbe Court. If there bad been any conflict in tbe evidence, then tbe position taken by tbe plaintiff’s counsel would bave been correct. But there was no doubt or conflict in tbe evidence. It was all given in by tbe plaintiff himself, and tbe defendant demurred to it; and, as was said by this Court in Neal v. Railroad, 126 N. C., 634, “This was an admission by tbe defendant that tbe evidence was trae. Tbe plaintiff, by offering tbe evidence, bad vouched for its credit. He could not impeach its credit.” That tbe evidence of tbe plaintiff in reference to tbe release was brought out on tbe cross-examination of the- plaintiff, does not alter tbe principle involved. Tbe cross-examination of a witness is as essential a part as the evidence in chief.

I think there was no error.  