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PURVIS v. PENNSYLVANIA R. CO.

August 4, 1950

PURVIS
v.
PENNSYLVANIA R. CO.



The opinion of the court was delivered by: TIMMERMAN

The plaintiff, an employee of the defendant railroad company, brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries alleged to have been negligently caused by the defendant. The trial, which commenced in this Court November 11, 1947, resulted in a mistrial.

Upon the close of the evidence, the defendant moved the Court to instruct the jury to return a verdict in its favor upon the following grounds:

 '1. There is no evidence of any negligence on the part of the defendant;

 '2. There is no evidence that any negligence on the part of the defendant was the proximate cause of plaintiff's injury;

 '3. The evidence shows that the sole and proximate cause of plaintiff's injury was his own negligence;

 '4. Plaintiff has failed to satisfy the burden of proving fraud or mistake in the execution of the release by clear, unequivocal and convincing evidence.'

 The motion was denied. On November 18, 1947, after a mistrial had been ordered November 13, 1947, the defendant noted a formal motion for the entry of judgment for the defendant in accordance with defendant's motion for a directed verdict.

 No time was set for hearing the mentioned motion, and in the meantime the Judge presiding at the trial returned to his home state of South Carolina. Shortly afterwards, as I am informed, one of the attorneys engaged in the trial of the cause died. Nothing more was done about the matter until quite recently when the Clerk of this Court sent me the file in the case, stating that it had been agreed that the motion be submitted on briefs without oral arguments.

 As to the first, second and third grounds of the motion, I am of the opinion that there was sufficient evidence to carry the issues of negligence to the jury. It was the jury's prerogative to pass upon the credibility of witnesses and the weight and sufficiency of the evidence so long as there was conflict therein or more than one inference to be drawn therefrom. The motion cannot be granted on any one or more of the three grounds.

 Coming to a consideration of the fourth ground of the motion, it is considered appropriate to briefly review the salient facts leading to the execution of the release and other facts discovered after the execution of the release.

 The accident which occasioned the plaintiff's alleged injuries occurred about 3 A.M. October 13, 1943, while the plaintiff was at work for the defendant as a brakeman in the defendant's yard at Frankford Junction, Pennsylvania. At about six o'clock the same morning plaintiff reported to and was examined by Dr. Abbott, one of defendant's physicians. He was given no treatment and went from the doctor's office to his home. During the afternoon of the same day, plaintiff reported to Dr. Hammer, another of the defendant's physicians, who sent him to have an X-ray picture made. The X-ray showed negative.

 The plaintiff was absent from his work through October 20, 1943. The next day he received a return to duty card from Dr. Jordon's office signed by Dr. Klein, both doctors being defendant's physicians.

 Plaintiff did not work on October 22, and did return to work on the 23rd. He did not work on the 24th; and on the 25th he consulted one of defendant's claim agents in regard to collecting for 'lost wages' due to his injury. At that time the claim agent called one of the defendant's doctors over the telephone and ascertained that plaintiff's injury consisted of a 'contusion of the chest' and that he had been given a return to duty card on the 21st. The plaintiff and the claim agent then agreed that he had lost six days of work prior to the issuance of the return to duty card and that his compensation therefor would amount to approximately $ 45. The claim agent agreed to pay that amount and presented a release or receipt for plaintiff's signature. Plaintiff signed the release, as he says, without reading it and accepted the defendant's check for $ 45, which he later that day endorsed and cashed.

 The paper signed by plaintiff turned out to be in terms an absolute release of 'all claims and demands' which he had or could or might have against defendant for injuries incurred by him in the mentioned ...


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