Oneida County NyArchives Court.....Purdy, James Vs. Rome, Watertown & Ogdensburg R. R. Co 1889
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Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

JAMES R. PURDY, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURG RAILROAD 
COMPANY, Appellant.

Injuries sustained by a servant — negligence of the master — agreement of 
release, void if not given for a sufficient consideration.

In an action, brought to recover damages because of personal injuries sustained 
by the plaintiff while in the defendant's employ, it was claimed that the 
injuries were caused by the neglect of the defendant to furnish the plaintiff 
with proper implements and appliances to be used in the work on which he was 
employed.

The defendant set up as a bar to a recovery in this action a writing or paper, 
signed by the plaintiff, wherein it was stated that he agreed that the defendant 
should not, in any case, be liable to him for any damages or injuries to his 
person or property by reason of the negligence of the defendant or his 
employees. 

It appeared that this instrument was signed by the plaintiff while he was in the 
defendant's employ, and that at the time when it was signed no agreement was 
made between the parties as to any future employment of the plaintiff by the 
defendant, nor did the plaintiff read the instrument or know its contents.

Held, that, 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, this agreement was without a sufficient 
consideration to support it, and that it was not a bar to this action.

Appeal from a judgment, entered in the office of the clerk of Oneida county on 
the 12th day of February, 1887, on the verdict of a jury rendered at the Oneida 
Circuit against the defendant for $5,000 damages and costs, and from an order, 
made the 12th day of February, 1887, denying the defendant's motion for a new 
trial made upon the minutes of the justice presiding at the trial.

The action was brought to recover for personal injuries sustained by the 
plaintiff while in the defendant's employ. It was based on the alleged 
negligence of the defendant in not furnishing the plaintiff with proper 
implements and appliances for the purposes of the work in which he was employed.

Edmund B. Wynn, for the appellant.

G. S. Klock, for the respondent.

Martin, J.:

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 question of the 
defendant's negligence to the jury. (Ellis v. N. Y. L. E. and W. R. R. Co., 95 
N. Y., 546; Gottlieb v. N. Y., L. E. and W. R. R. Co., 100 id., 462.)

Nor do we think it can be held, as 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. H. B., M. and F. R. R. Co., 60 N. Y. 326; Massoth v. D. and H. C. 
Co., 64 id., 529; Stackus v. N. Y. C. and H. R. R. R. Co., 79 id., 464; Halsey 
v. R., W. and 0. R. R. Co., 12 N. Y. State Rep., 319; affirmed in Court of 
Appeals March, 1889.)

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 employees, 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.

Hardin, P. J., concurred; Merwin, J., not sitting.

Judgment and order affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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