upon the same points. On cross-examination | for the plaintiff, and gave testimony impeachthe defendant's attention was called to a cer- ing the reputation of the defendant for truth tain talk with the plaintiff which he admit- and veracity. In his cross-examination there ted having had, and he was asked how many were the following questions and answers: days afterwards it was that he left Brattle- "Q. Do you want to tell me there was anyboro. His answer, however, threw no light thing in any local paper about his, Guy Dooon the matter. In the course of the sister's little's, truth and veracity? A. I do not cross-examination as to the whereabouts of know as it was put in those words. Q. You her brother, her attention was called to the know there was nothing said about his truth funeral of their mother, and she was asked if and veracity? A. It was said he was the one her brother was at the funeral. The question, who took the girl's money." The defendant with some variations, was several times re- moved to have this last answer struck out. peated, and she, while protesting that such The answer was allowed to stand, and the questions had nothing to do with the case, defendant excepted. So far as the excepanswered in substance that she did not re- tions show, the defendant's first question member whether he was at the funeral or above recited was the first allusion made to not that he might have been and that he any newspaper. The defendant was not trymight not have been; that she did not re- ing to show that his bad reputation for member whether she saw him that day or truthfulness had originated in some newspanot; and that she did not know whether or per story, but so far as appears from the exnot he was in town that day. The plaintiff ceptions he was trying to show that, whatcalled as a witness one Thayer, the officer ever his reputation for truthfulness might be, who held and served the process in the for- the local papers had not attacked it. Such mer suit against the defendant and his sis- inquiries were not proper. He could not ter, and he was permitted to testify to his bolster up his reputation in that way. The search and lookout for the defendant during inquiries were not calculated to aid the jury a period of some four or five months, and to in any way in the determination of the his inability to find him. The undertaker weight to be given "to the whole testimony of who acted as director at the funeral refer- the impeaching witness." Willard v. Goodred to testified that he did not see the de- enough, 30 Vt. 393. Neither the plaintiff nor fendant there. During the taking of the evi- the court was in any way responsible for the dence above indicated several exceptions were result of the defendant's extraordinary line taken. But the evidence was properly re- of inquiry. The court was in a position to ceived, some of it being peculiarly approprijudge from from the whole cross-examination ate as matter of cross-examination, and all what, if anything, it ought to do in the cirof it taken together having a tendency to cumstances. The record presents a case of meet the claim that this suit, unless groundless, would have been brought at the earlier resulting in an improper answer all of which improper questions by the excepting party time designated. The suit was for the con- the court allowed technically to stand upon version of $300 in money. The defendant claimed, as the exceptions recite, that, "if he did have the $300, it was money borrowed and not taken as the plaintiff claimed, and that he had repaid the same to her." The In addressing the jury the plaintiff's coundefendant introduced a receipt signed by the plaintiff and a certain deposition of his sis-sel argued that his client "would not have ter for the purpose of supporting the claim taken counsel and brought this suit if it Objection that his sister had let him have $325, and was not just as she claimed." that out of that he had paid the plaintiff. being made, the argument was withdrawn, In cross-examining the sister about this mat- and the jury were adequately cautioned by ter the plaintiff attempted to show that the court, and an exception was noted. Latabout the time she let the defendant have the er in the same discourse the plaintiff's coun$325 he bought some horses or went to Bos- sel said: "Would this woman be pressing ton to purchase horses, and that she let him this suit here if she had had her pay?" Obhave the money to pay for the horses. The jection being made, counsel said: "I withanswers of the sister were all to the effect draw the statement; I withdraw that statethat she did not know or did not remember; ment." The court pointed out the fallacy but the questions were proper, since the ob- of the argument, and noted another excepvious aim of the cross-examiner was to con- tion. In view of the full retraction of countradict the evidence as to the purpose for sel and the action of the court, and the obwhich the money was furnished and used. vious absurdity of the objectionable remarks, Several general exceptions were taken in the it is not conceivable that the defendant was course of this cross-examination, but they harmed. fasten upon no error.

The treasurer of the Vermont Savings

the record. Whether or not the court said

anything to the jury about these questions and this answer does not appear. Error we

do not find.

All questions discussed in the brief of the excepting party have been considered.

VAILLANCOURT v. GRAND TRUNK RY.
CO. OF, CANADA.

7. WITNESSES (§ 248*) - RESPONSIVENESS OF ANSWER-STRIKING OUT.

It is not error to strike out the parts of answers of a witness which are not responsive to

(Supreme Court of Vermont. Special Term at the questions asked. St. Johnsbury. Oct. 6, 1909.)

1. RELEASE (§ 53*) - FRAUD - ISSUES - EVIDENCE-ADMISSIBILITY.

Where, in an action by a servant for personal injuries, the master relied on a release, and the servant replied that the release was procured by fraud, evidence whether the release was fraudulently obtained by the master from the servant, who intended to give only a' receipt for the money received, and whether he relied on the fraudulent representations of the master that the paper signed was only a receipt, was within the issues.

[Ed. Note.-For other cases, see Release, Cent. Dig. § 93; Dec. Dig. § 53.*]

2. EVIDENCE (§ 434*)-PAROL EVIDENCE-AD

MISSIBILITY.

Where the alleged fraud goes to the legal existence of the instrument in question, parol evidence is admissible, though the instrument is under seal.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2005, 2020; Dec. Dig. § 434.*] 3. RELEASE (§ 56*)-FRAUD-EVIDENCE-ADMISSIBILITY.

A servant suing for a personal injury, and alleging that the release executed by him was procured by fraud, may show that after his injury he was taken to a hospital, where he remained several weeks, and that before executing the alleged release he had been advised by an attorney that he had a good case as bearing on the question whether it was probable that for $150 received from the master he understandingly released his claim.

[Ed. Note.-For other cases, see Release, Cent. Dig. 105; Dec. Dig. § 56.*]

4. RELEASE ($ 56*) - FRAUD-EVIDENCE-AD

MISSIBILITY.

Where a brakeman suing for a personal injury, and alleging that a release executed by him was procured by the fraud of the claim agent of the railroad, showed that he wrote a letter to the superintendent of the railroad as to his condition and need of assistance. the reply of the superintendent stating that the letter had been referred to the claim agent, with a request that he communicate with the brakeman, was admissible, as showing notice to the brakeman that the subject-matter of his letter had been put into the hands of the claim agent for further communication and his authority con

cerning it.

[Ed. Note. For other cases, see Release, Cent. Dig. § 101; Dec. Dig. § 56.*]

5. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR - ERRONEOUS ADMISSION OF EVI

DENCE.

Where, as a result of the exclusion of a part of a party's deposition, a question and answer objected to were rendered meaningless, the error, if any, in overruling the objection was harmless.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4153; Dec. Dig. § 1050.*] 6. EVIDENCE (§ 123*)-RES GESTÆ.

The declarations of a railroad claim agent, made to an injured servant with a view of obtaining a settlement of his claim, which illustrate the character and the object of the payment agreed to be made, are admissible as a part of the res gestæ.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 365; Dec. Dig. § 123.*]

[Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 248.*]

8. EVIDENCE (§ 158*)-BEST EVIDENCE.

Letters written by a railroad claim agent to an injured servant are the best evidence of the representations made thereby by the claim agent to the servant, and it is not error to exclude parol evidence thereof.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 523-525; Dec. Dig. § 158.*] 9. TRIAL (§ 48*)-EVIDENCE-OBJECTIONS TO QUESTIONS.

A question which calls for testimony, part of which is inadmissible, is properly excluded. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 120; Dec. Dig. § 48.*]

10. APPEAL AND ERROR (§ 690*)-RULINGS ON EVIDENCE-REVIEW.

The error, if any, in permitting an examination of a railroad claim agent as to a book of rules furnished by the railroad to engineers and trainmen will not be reviewed, where the rules were not furnished the appellate court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2902; Dec. Dig. § 690.*] 11. TRIAL (§ 121*)-IMPROPER ARGUMENT. The argument of counsel for a servant suing for a personal injury that, if the master was liable, and the sum paid to the servant for a release relied on by the master was grossly inadequate to the injuries suffered, that fact was an element of fraud to be considered in determining whether fraud was practiced on the servant was not improper.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 296; Dec. Dig. § 121.*]

12. RELEASE (§ 58*)-FRAUD-QUESTION FOR JURY.

Where the oral and written evidence on the issue of fraud in procuring from a servant a release of his claim for damages for a personal injury was conflicting, the issue was for the jury.

[Ed. Note.-For other cases, see Release, Cent. Dig. § 114; Dec. Dig. § 58.*] 13. RELEASE (§ 59*)-FRAUD-INSTRUCTIONS.

The statement, in an instruction on the issue whether a release was procured by fraud, that it is seldom that men admit that they perpetrate a fraud in terms, preceded by a charge is required from a party endeavoring to set aside that no direct proof of fraud or undue influence an instrument unduly obtained, and followed by a charge that the party seeking to impugn an instrument on that ground must prove by a fair balance of evidence that it was obtained by fraud, etc., was not subject to criticism.

[Ed. Note.-For other cases, see Release, Cent. Dig. § 115; Dec. Dig. § 59.*] 14. TRIAL (§ 244*)-INSTRUCTIONS-SINGLING OUT FACTS.

It is not reversible error to refuse to single out for emphasis in the instructions a fact in no wise determinative of any issue submitted. [Ed. Note. For other cases, see Trial, Cent. Dig. 578; Dec. Dig. § 244.*] 15. CONTRACTS (§ 94*)-FRAUD-RELIANCE ON

REPRESENTATIONS.

As the doctrine that a party is conclusively presumed to know the contents of an instrument signed by him does not obtain as against fraud, an instruction that false representations as to the legal effect of an instrument cannot invalidate it, as a party signing it is presumed

Whether an inspection by a company of aada. railroad yard was essential to the exercise of reasonable care in providing a reasonably safe place for its brakeman to work in the performance of his duties, and whether the failure to make such an inspection was negligence, held for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1029; Dec. Dig. § 286.*] 22. MASTER AND SERVANT (8 270*)-INJURY TO SERVANT-NEGLIGENCE OF FELLOW SERVANT ISSUES AND PROOF.

The facts shown by the evidence on the trial of the issue of fraud sufficiently appear in the opinion. The evidence introduced on the trial of the general issue, in its most favorable view to the plaintiff, tended to show that he commenced work for the defendant June 14, 1906, and worked until he Where a railroad company was negligent was injured, August 14th following. That in failing to inspect its railroad yard and re- at first he was sent one trip from Island move a clinker there so as to make the place Pond, this state, to Portland, Me., and back safe for a brakeman while at work, the question whether the clinker came there through the to learn the road. Thenceforth, working as act of an engineer or fireman was inadmissible a brakeman, he made two round trips be

going so fast-probably six or eight miles an hour-that he thought it not best to take the chances of getting on. He, noticing also that it was slowing up a little, planned to wait for a good chance. That while thus waiting he was watching the passing cars looking for a change to get on safely. That when the caboose came along the train was going from three to five miles an hour, and he attempted to mount. That he did not know the helping engine was attached behind until he noticed the smoke after it came around the curve, some 30 or 40 rods away. That preparatory to mounting he was getting a start by a little run alongside the train, as usual, looking for the grab iron on the car, and not looking down; had gone about 15 feet in that way, and was getting ready to reach for the grab iron and swing onto the step, when he stepped on a piece of clinker lying on the track, his foot was tripped thereby, and he fell before he had a chance to get hold of the grab iron. That his legs were run over by the helping engine; one cut off, and the other so injured as to make amputation necessary. That the clinker was half the thickness of a man's head, and some 9 inches wide

tween the same places; then went over on | plaintiff's first information that the train the Cannon Ball from Portland to Mechanics was to be backed out, and not having time to Falls a little over two weeks; then was go and lock the switch left unlocked, he transferred back to Island Pond, and ran mounted the head car so as to give signals, again from there to Portland and back two as was his duty. That the train backed or three trips; then he ran on the gravel out of the switch onto the main line, through train from the pit at South Paris going to which it had come in, the plaintiff locked the wards Portland for about a month; then switch, mounted the head car, and the train went back to Island Pond, and ran on freight started westerly toward Island Pond. That train between there and Portland, having run when opposite the west end switch which the six, seven, or eight trips when he was in- plaintiff had left unlocked, he jumped off the jured. That only when running between Is- train, and locked the switch, as was his duty, land Pond and Portland did his train pass then walked back easterly between the sidthrough West Paris, where the accident hap-ing and the main line, because the train was pened, and from which place going westerly a helping engine was used as far as Bryant's Pond some six miles further west; it being a pretty steep grade. That at West Paris there was a side track on the southerly side of the main line, and previous to the time of the accident the train on which the plaintiff was braking going westerly would pull through the main line, stopping so the caboose would be opposite the station, and the helping engine would be backed off the siding onto the main line, and be attached to the rear end of the train. That the easterly switch is probably three or four car lengths from the station, and the westerly switch is farther away, not in sight from the station, and during the time of the plaintiff's service for the defendant the usual way of taking a siding and leaving it again was to go in at one end and go out ahead at the other end. At no time before the occasion in question did the train on which the plaintiff was braking, in allowing another train to pass in the same or opposite direction, pull onto a siding, and then, after the other train had gone by, back out of the same switch onto the main line again. That when the train arrived at West Paris the plaintiff was braking at the head end of the train. That the conductor of the train before reaching West Paris told the plaintiff that the train would take the siding there, but did not say anything about going out of the siding other than in the usual manner. That the train stopped easterly of the east switch, the switch was opened for the train to pull through, and then the plaintiff mounted the head car, where he remained until the train was in clear of the switch, when he went to the switch at the westerly end of the side track, five or six car lengths west of the head of the train, and sat down waiting for No. 6 train to pass. That when that train had passed, he unlocked the switch, took the lock out of the eye, and put it onto an iron, a part of the switch, but did not open the switch or connect it with the main line. That then the engineer beckoned the plaintiff to come back, and, not knowing what the engineer wanted, and still supposing that the train would be run through that switch, he started back, leaving the switch unlocked. That when about halfway back, the engineer blew

more flat than round, and all of half as long as "an ordinary man's head." That it was an old piece of clinker, cold, and had considerable sand all over it, and cinders on it, had not been seen by him, and he did not know it was there, nor did he expect a clinker would be there, but on the contrary, he expected the yard there was a safe place; he then knowing that, by a rule of defendant company, it was the duty of the station agent to inspect the yard daily, and to keep the grounds clear upon which the plaintiff was then working, which rule reads: "They [station agents] will have charge of the company's books, papers, buildings, sidings and grounds at their stations. * They will daily inspect all buildings, grounds, outhouses, etc., under their charge, and see that they are kept clean, tidy and in proper condition for use"-and its observance was expected by the plaintiff. That on the day in question, at the time of the accident, the yard at that place had not been inspected, but was between one and two hours later. The testimony in chief of one expert witness, living in Island Pond and having some knowl

(1)

was that in his opinion it is essential to good | any evidence outside of the release itself, railroading that the track be inspected every on grounds reduced and stated thus: morning, because most of the traffic is in the daytime, the local trains, and it is advisable to know the tracks are in a suitable condition before the day's traffic begins, and that this would apply to a station midway between two terminal points from which trains start morning and night; while in cross-examination he testified to night trains, both freight and express, over defendant's road, and that for a line running day and night inspection at any time of the day in daylight is as good as 7 o'clock in the morning. The evidence further tended to show that it is customary for conductors and brakemen on defendant's road to get on and off trains moving at the speed of five miles an hour. Other evidence is referred to induced by the defendant-though the tenthe opinion.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

H. W. Blake and Simonds & Searls, for plaintiff. H. B. Amey and Leroy L. Hight, for defendant.

WATSON, J. This is an action to recover damages for injuries resulting from the alleged negligence of the defendant when under its employ as a brakeman on its freight train running from Portland, Me., to Montreal, Canada. Pleas, general issue, and special that the defendant had obtained a full release and discharge under seal from the plaintiff releasing and discharging it from all liability which may have arisen on account of the alleged negligence. The plaintiff replied that said release and discharge were procured by fraud, and that he had tendered back the money received. A separate trial by jury was had on each issuean anomalous procedure-resulting in a verdict on the issue of fraud "that the so-called release and discharge was procured by fraud," and that the plaintiff repudiated the release, and tendered back the money received within a reasonable time; also for the plaintiff on the general issue, with an award of damages. The questions saved on the two trials will be considered in the same order.

That the written contract of release speaks for itself, and evidence to vary it is inadmissible; (2) that all the allegations of fraud set up in the replication are as to the legal effect of the release itself. The real issue presented, however, was whether the so-called release was fraudulently obtained by the defendant of the plaintiff; he in fact intending to give only a receipt for the money received by him, and, relying upon the false and fraudulent representations by the defendant, understood the paper signed by him to be only such receipt. This was within the allegations of fraud set up in the replication, and the evidence introduced by the plaintiff bearing thereon, as also some of that intro

dency of much of the latter's evidence was to the contrary-tended to show that the socalled release was thus fraudulently obtained; the money being paid by the defendant as a gift or gratuity, and so received by the plaintiff. The law is well settled that in cases where the alleged fraud goes to the legal existence of the instrument in question, evidence, parol and otherwise, is admissible. Webster v. Smith, 72 Vt. 12, 47 Atl. 101; Cameron v. Estabrooks, 73 Vt. 73, 50 Atl. 638; Hartshorn v. Day, 19 How. 211, 15 L. Ed. 605; George v. Tate, 102 U. S. 564, 26 L. Ed. 232; Oregon v. Jennings, 119 U. S. 74, 7 Sup. Ct. 124, 30 L. Ed. 323. And the fact that the instrument is under seal makes no difference in this respect. Mr. Chitty says that, in debt on bond or other specialty, when the deed is the foundation of the action, evidence may be given under the plea of non est factum that the deed "was void at common law ab initio as that it was obtained by fraud." 1 Chit. Pl. 483. And at page 582 the same author says that to a plea of release the plaintiff may reply non est factum, or that it was obtained by duress or fraud. Thoroughgood's Case, 2 Co. Rep. 9a, 9b, 6 R. C. 202; Bright v. Eynon, 1 Burr. 390; Escherick v. Traver, 65 Ill. 379; Rockwell v. Capital Traction Co., 25 App. Cas. (D. C.) 98, 4 Am. & Eng. Ann. Cas. 648; Taylor v. King, 6 Munf. (Va.) 358, 8 Am. Dec. 746: Schuylkill County v. Copley, 67 Pa. 386, 5 Am. Rep. 441; Burnette v. Young, 107 Va. 184, 57 S. E. 641, 12 Am. & Eng. Ann. Cas. 982.

Evidence was introduced tending to show that the plaintiff is a Canadian by birth. without much education; that he lived in Canada till nine years old. In the last two The plaintiff was properly allowed to or three years of that time attended school show that after his injury he was taken to there, and learned to read and write French. the Lewiston Hospital, remained there five That then he came to the United States, and weeks, and then went to his home at Rumwithin the next three years attended a night ford Falls, Me., and also that before the alschool one winter, and learned to read and leged settlement he had taken counsel of, write English "a little," but that his under- and had been advised by, an attorney that standing of the English language is very im- he saw no reason why the plaintiff had not perfect, and especially as to hard or uncom- a good case against the defendant. The fact mon words, and such technical words and that he was thus taken to and remained in phrases as are used in the contract or re- the hospital had a bearing on the question of lease in question. the extent of his injury and the resulting