#### JOHN H. BRITTAIN v. ATLANTIC & YADKIN RAILWAY COMPANY and WESTERN UNION TELEGRAPH COMPANY, INC.

(Filed 8 June, 1940.)

1. Master and Servant § 27: Negligence § 19a—

Plaintiff was injured when the motorcar upon which he and other employees of defendant railroad company were being transported to work collided on the tracks with a motorcar of defendant telegraph company. *Held:*The motion of the defendant telegraph company for judgment as of *738nonsuit should have been allowed, there being no evidence in the record upon which it might be held for negligence, but the evidence was properly submitted to the jury upon the issue of the negligence of defendant railroad company.

2. Torts § 8a.—

Plaintiff attacked the releases set up by defendant employer on the ground that they were procured by fraud. *Held:*Previous releases signed by plaintiff for prior accidents, offered to show that plaintiff had knowledge of what the releases in controversy were, were properly excluded as irrelevant, and further, evidence of fraud in the procurement of the releases in controversy was properly submitted to the jury.

3. Trial § 31—

Exceptions to the charge on the ground that the court unduly dwelt upon the contentions of plaintiff are not sustained, it appearing from an examination of the entire charge that defendant was not prejudiced or discriminated against in the manner in which the contentions were stated.

4. Trial § 19—

The weight of the evidence is for the determination of the jury.

5. Trial § 24—

Where there is any evidence to support plaintiff’s case, it must be submitted to the jury.

Appeal by defendants from *Clement, J.,*at August Term, 1939, of Guilford. As to defendant Western Union Telegraph Company, Inc., reversed. As to defendant Atlantic *&*Yadkin Railway Company, no error.

This is an action to recover damages because of injuries alleged to have been sustained through the joint negligence of the defendants.

The plaintiff, an employee of the Atlantic & Yadkin Railway Company, and serving as a section laborer, complained that some time in July preceding the trial, and while in the performance of the duties imposed upon him by his employer, he was riding in defendant’s motorcar, which was driven by one of its agents, and plaintiff’s superior, at a rapid rate of speed along the railway near Summerfield, N. C., when suddenly and without any warning the motorcar of the defendant Western Union Telegraph Company, Inc., proceeding southwardly along the railway at a rapid rate of speed, collided head-on with the motorcar of its codefendant, which was carrying the plaintiff. The plaintiff alleges that in the emergency he was required to jump from the speeding motorcar to a place of safety and, in so doing, suffered serious and permanent injuries.

The negligence attributed to the defendant Atlantic *&*Yadkin Railway Company was (a) that it did not have its motorcar equipped with adequate brakes, in proper condition, and sufficient to stop the car in case of emergency; (b) that the car itself was old, worn out, with defec*739tive brakes, and other defective equipment, and could not be stopped in an emergency within a reasonable distance, which was known to defendant, or could have been known to it by the exercise of reasonable care and inspection; (c) that the company’s motorman in charge of the car was operating the same at an unreasonable and-improper rate of speed under the circumstances, and in a manner so as to endanger the life and limb of the passengers on the car, including plaintiff, and that said motorman knew, or could have known by the exercise of ordinary care, the defective condition of the brakes in the car; and that the motorman failed to keep a proper lookout; (d) that the defendant Atlantic & Tad-, kin Railway Company, the employer, failed to exercise reasonable care to provide the plaintiff a reasonably safe place in which to work and reasonably safe tools and appliances.

Of the defendant Western Union Telegraph Company, Inc., it is alleged, (e) that said defendant, through its motorman, acting within the scope of his employment, drove its motorcar along the railway of its codefendant in a careless and negligent manner and at such a speed as to endanger the life and limb of the plaintiff and others on the railway’s motorcar; (f) that the defendant Western Union Telegraph Company, Inc., through its motorman in charge of said car, failed to give any timely warning of its approach and that after the oncoming car of the Atlantic & Yadkin Railway Company had been discovered, or could by the exercise of ordinary care have been discovered approaching and its position of peril known, that the defendant Western Union Telegraph Company, through its servant and agent, failed to exercise due care to avoid a collision, although it had a last clear chance to do so, and that the motorman, the servant and agent of the defendant, proceeded without applying any brakes to the ear, or if they were applied they were inadequate to stop the car and prevent a collision; and that the car was old, defective, and out of date; (g) that the motorman failed to keep a proper lookout for traffic on the railway and negligently and recklessly drove his car head-on into the motorcar on which plaintiff was riding.

In all of these acts the plaintiff alleged that the defendants were concurrently negligent.

The defendants denied the material allegations of the complaint, and the defendant Atlantic & Yadkin Railway Company set up as a special defense a release alleged to have been obtained by the defendant from the plaintiff; and the Western Union Telegraph Company, Inc., claimed the benefit of this release because of the release of its joint tort-feasor and because of a subsequent release taken by the defendant Atlantic & Yadkin Railway in behalf of itself and the Telegraph Company.

The plaintiff replied to this further defense, alleging that the releases relied on by the defendants were procured through fraud and misrepre*740sentation, were wholly inadequate as a settlement for the injuries sustained by plaintiff, were without any adequate consideration, inoperative and void.

Plaintiff’s evidence, summarized, is to the effect that he had been working for the Atlantic & Yadkin Railway Company about 37 years when he sustained the injury complained of. He was a section worker, engaged in such work as putting in crossties, pulling road joints, and putting in switches and broken rails, making a wage of $2.03 a day.

On the day of his injury he went to work at 7 :30 o’clock. He went .from the tool house to his work on a motorcar, which he described as something like a hand car with a gasoline motor in it. The passengers, or workers, sat on boards which ran each side the length of the car.

Captain Tilley, described as plaintiff’s “boss,” was driving the motor-ear on the day plaintiff got hurt. Plaintiff and his colaborers were working about four miles from Summerfield. They got on the motorcar after it was loaded up and started down the hill toward Summerfield. Suddenly Tilley put on his brake and said: “Look out yonder, boys, yonder comes the other fellow; they are going to hit.” Tilley jammed on the brakes but it did .not have much effect and everybody got to jumping. Plaintiff states that the car ran about 200 yards and they hit together. Plaintiff lay down on the ground when it happened. Plaintiff further testified that the car was running about twenty miles an hour when Tilley said “Look out,” and plaintiff saw the Western Union car coming. All tried to get off, including Captain Tilley. Captain Tilley said, “Boys, jump.” The other motorcar was coming right around the curve,' plaintiff didn’t know exactly how far. Plaintiff said they had not. seen the Western Union car approaching until Captain Tilley said, “Look out, boys, jump.” The Western Union car, plaintiff testified, was going faster than the car he was on. The motorcar that hit the Western Union car kept “backing it up.” Plaintiff states that he was unconscious.

Plaintiff’s testimony tended to show that he was badly hurt. The transverse processes of the first lumbar vertebra were broken, there was a fracture of the fourth and fifth lumbar vertebrae. The posterior arches of the fourth and fifth lumbar vertebrae were broken on each side and the front of the fifth vertebra seemed slightly broken. There was trouble also with the sacroiliac, that is, the joint in the small of the back where the spine joins the pelvis. There was injury also to the left knee.

Other testimony corroborated the plaintiff as to the order to get off the car, and tended to show that at that time the cars were about thirty-five or forty feet apart.

With regard to the release, the plaintiff testified that he went to the office of the Atlantic & Yadkin Railway Company for the purpose of *741obtaining a pass and to receive compensation for tbe time be was kept from work. He said tbat Mr. Brown, wbo bad tbis matter in charge for tbe Railway Company, told bim to come next day and be would let bim bave all tbe money be needed. He went back tbe next morning about ten o’clock and stayed there until Mr. Faulconer came with “them papers there fixed up ‘by times,’ $176.14.” He stated tbat tbe draft and release which bad been identified and which was for $176.14 be thought was for bis time, tbat be was getting $2.03 a day when be was hurt, and they counted up bow long be had been off. He thought when Mr. Faulconer gave bim tbe $176.14 be was paying bim for tbe time be bad lost from work, tbat be knew be asked Mr. Faulconer for bis time but did not remember Mr. Faulconer telling bim be was giving bim bis time. Tbat Mr. Faulconer bad told bim tbat it was for bis time. He stated tbat be said to Mr. Faulconer: “Mr. Faulconer, bow much is tbis ? I cannot see it,” and Mr. Faulconer said: “John, it is $176.14.” While going down in tbe elevator a man standing in tbe elevator said: “John, what is tbat paper in your band ?” and be replied, “A paper.” “Captain, bow much is tbat?” And tbe man said: “$176.14,” and plaintiff said, “Thank you.” He stated tbat be did not know tbe man but tbat people call all colored folks “John.”

Tbe plaintiff testified tbat on previous occasions be bad taken papers borne with bim; tbat be bad always signed for previous accidents tbe same kind of instrument be signed then, but on those occasions someone bad read them to bim; tbat be did not know anything about tbe paying of tbe hospital bill, as they did not ask bim. Tbat Mr. Faulconer said to bim: “Here is your time, $176.14,” and tbat be went to Summerfield and got tbe money. Tbat be got tbe $176.14 tbat Mr. Faulconer promised to give bim for bis time and took it and spent it.

As to tbe second release, tbe plaintiff testified tbat be went to tbe office to get a pass and that be signed tbe second release believing tbat it was an application for tbe pass; tbat be did not read tbe pass request. He denied tbat Mr. Brown read tbe paper to bim. He stated tbat be did not bave bis glasses with bim but bad bis sister’s glasses, which were no good and tbat be could not see out of them enough to read, tbat be could read tbe paper and short words but long words like tbat be couldn’t do anything with them; tbat none of tbe papers be signed were read over to bim; tbat Mr. Faulconer did not tell bim tbe paper be was signing was a release nor tbat be was making full settlement for all bis injuries, nor did they give bim any of tbe papers tbat be bad signed to take borne with bim.

Tbe defendants placed tbe releases in evidence and introduced testimony tending to contradict tbe plaintiff with respect to bis allegations and testimony as to tbe fraud.

*742At the conclusion of the plaintiff’s evidence and also at the conclusion of all the evidence the defendants separately made motions for judgment as of nonsuit, which were denied.

There was evidence to the effect that plaintiff left the office with the voucher-release and went to the bank, and that in order to get the money he had to *sign again,*twice, which he did.

There were four issues submitted to the jury; the first two were issues as to fraud covering the first and second releases above referred to, the third was as to the negligence of the defendants, and the fourth as to damages. All of the issues were answered in favor of the plaintiff, and upon the verdict thus rendered judgment was rendered against the defendants in the *sum*of $7,693.72, *from*which defendants appealed, assigning errors.

*Frazier & Frazier and W. T. Whitseti for plaintiff, appellee.*

*Francis B. Stark and King & King for defendant Western Union Telegraph Company, Inc., appellant.*

*Ilobgood & Ward and Harry Rockiuell for defendant Atlantic & Yad-kin Railway Company, appellant.*

Seawell, J.

¥e see no evidence in the record under which the defendant Western Union Telegraph Company, Inc., might be held for negligence, and the motion of this defendant for judgment as of nonsuit should have been allowed.

' The defendant Atlantic & Yadkin Railway Company offered certain documents appearing to have been releases previously signed by plaintiff for other injuries, explaining that in offering them- it was to show that the “plaintiff had had such papers 'as this before,” which defendant claimed might have a bearing on the fact of his knowledge of what the papers or releases in controversy were. This evidence was excluded by the court as irrelevant, and in this we find no error.

As to this defendant, the evidence was sufficient to go to the jury in support of the contentions of the plaintiff, and its motion for judgment as of nonsuit was properly overruled.

The other exceptions relate to instructions to the jury. Most of them appear to have been taken on the principle that defendant was prejudiced by the extent to which the court dwelt upon the contentions of the plaintiff. An examination of the entire charge leaves us with the impression that the defendant was not discriminated against in such a manner as to create prejudice in the minds of the jury upon the pertinent issues. There was certainly not a sufficient discrimination as to relieve the defendant from the duty of calling to the court’s attention such contentions as may have been inadvertently omitted. *Sorrells v.**743*Decker,*212 N. C., 251, 193 S. E., 14; *S. v. Sinodis,*189 N. C., 565, 127 S. E., 601. Tbe defendant Atlantic & Yadkin Railway Company did call to tbe attention of tbe court its contentions as to tbe first release, wbicb bad been taken out of tbe office, and tbe court, thereupon, called tbe jury’s attention to that. Tbe objection bere is that tbe court did not state to tbe jury tbe contention of tbe defendant as to tbe effect this might have on tbe charge of deception and fraud. But we see no reversible error in tbe manner in wbicb it was presented to tbe jury.

It is not our function, and certainly not that of tbe trial judge, to pass upon tbe weight of tbe evidence. When there is any evidence to support plaintiff’s ease, it must be submitted to tbe jury. *Lumber Co. v. Power Co.,*206 N. C., 515, 174 S. E., 427; *Newbern v. Leary,*215 N. C., 134; *Fox v. Army Stores,*215 N. C., 187. Try as be may, tbe trial judge in bis instructions to tbe jury may not always be so fortunate as to maintain a strictly even balance in the statement of tbe contentions. In that respect, however, we find no substantial and reversible error in tbe present case.

On tbe appeal of the defendant Western Union Telegraph Company, Inc., tbe judgment below denying tbe motion for judgment as of non-suit is

Reversed.

On tbe appeal of tbe defendant Atlantic & Yadkin Railway Company, we find

No error.