Purdy v. Rome, W. & O. Railroad — 5 N.Y.S. 217

Majority

p. 217

Purdy v. Rome, W. & O. R. Co.

(Supreme Court, General Term, Fourth Department.

April, 1889.)

Headnote

Master and Servant—Negligence of Master—Release.

A writing signed by an employé during Ms employment, agreeing that Ms employer should not be liable to him for any injury sustained by.reason of the employer’s negligence, there being no agreement as to any future employment or other consideration, is no bar to an action by the employé for such an injury.

Appeal from circuit court, Oneida county.

Action by James B. Purdy against the Borne, Watertown & Ogdensburg Railroad Company, for damages for injuries sustained by defendant’s alleged negligence. Verdict and judgment for plaintiff, and defendant appeals.

Argued before Hardin, P. J., and Martin, J.

Fdmund B. Wynn, for appellant. G. S. Flock, for respondent.

A careful examination of the evidence in this case has led us to the conclusion that it was sufficient to justify the court in submitting the

p. 218

question of the defendant’s negligence to the jury. Ellis v. Railroad Co., 95 N. Y. 546 ; Gottlieb v. Railroad Co., 100 N. Y. 462 , 3 N. E. Rep. 344 . Nor do we think it can be held as a matter of law that the plaintiff was guilty of contributory negligence. Under the evidence, the question of plaintiff’s contributory negligence was for the jury, and was properly submitted to it. Thurber v. Railroad Co., 60 N. Y. 326 ; Massoth v. Canal Co., 64 N. Y. 529 ; Stackus v. Railroad Co., 79 N. Y. 464 ; Halsey v. Railroad Co., 12 N. Y. St. Rep. 319 , (affirmed in court of appeals March, 1889,) 20 N. E. Rep. 876 , mem.

The defendant claims that the writing or paper signed by the plaintiff, wherein it was stated that he agreed that the defendant should in no case be liable to him for any damage or injury to his person or property by reason of the negligence of the defendant or its employes, was a bar to the recovery in this action. This instrument was signed by the plaintiff while he was in the defendant’s employ. His employment preceded the execution of the agreement, and continued until the time of his injury. When it was signed there was no agreement between the parties as to any future employment of the plaintiff by the defendant. It was without any new consideration whatever. The plaintiff did not read it, nor did he know its contents. Without deciding or discussing the question as to the validity of such an agreement, when founded upon a good and sufficient consideration and fairly understood by the parties, we are of the opinion that this agreement was without a sufficient consideration to support it, and that the trial court committed no error in holding that it was not a bar to this action. The appellant has called our attention to no errors of the court in the admission or rejection of evidence, or in its charge to the jury, and we have found none that would seem to require discussion or justify a reversal of the judgment herein; hence it follows that the judgment and order should be affirmed. Judgment and order affirmed, with costs.

Hardin, P. J., concurs. Merwin, J., not sitting.

Cases cited

Ellis v. New York, Lake Erie & Western Railroad 95 N. Y. 546 N.Y. 1884-04-15 p. 218
Gottlier v. New York, Lake Erie & Western Railroad 100 N. Y. 462 N.Y. 1885-11-24 p. 218
Thurber v. Harlem Bridge, Morrisania & Fordham Railroad 60 N. Y. 326 N.Y. 1875-04-06 p. 218
Stackus v. New York Central & Hudson River Railroad 79 N. Y. 464 N.Y. 1880-01-13 p. 218
Halsey v. Rome, Watertown & Ogdensburg Railroad 12 N. Y. St. Rep. 319 N.Y. Gen. Term p. 218