(dissenting). — I dissent. The testimony, to my mind, shows clearly — (1) That the agent of the company in charge of the matter was guilty of gross negligence,; (2) that the respondent was not guilty of contributory negligence; (3) that undue advantage was taken of the respondent to obtain the release which the appellant pleads in defense. ,
I do not question the law pronounced at great length in the majority opinion, but I assert that it does not govern this case. The opinion does not state the circumstances under which it is alleged the release was obtained. While this man was lying mangled and shocked by the injury, before his wounds were dressed or his mind composed, the agents of the company obtained this so-called release. The undisputed testimony shows such a condition of mind and body as would render absolutely farcical any attempt of the respondent to enter into a contract concerning important rights. Courts would not hesitate to set aside a contract urged and procured by a private individual under such circumstances as are proven in this case; and no different rule should be prescribed for a corporation.
Contracts, when they are honestly and fairly entered into, must be rigidly maintained and enforced by the *212courts; because contracts, express or implied, are at the bottom of all business relations. But a contract is only-entitled to respect from the presumption that the contracting parties were standing on an equal footing at the time the contract was entered into. Will any man assert that the parties to this action were on an equal footing at the time this contract was entered into ? Here was a man without means and without friends, torn and bruised by an accident, and jolted and shocked until he was prostrated; his wounds not yet examined to ascertain if they were fatal, racked with physical pain and scared out of his wits by the misfortune that had overwhelmed him; and while in this condition, a condition of mind and body absolutely preventive of intelligent calculation, the company with unseemly haste thrust this cold, calculating stipulation into his face and obtained his signature to it. The essence of a contract is an agreement of the minds of the parties; or the consent and harmony of their intentions. The circumstances under which the respondent’s signature was obtained to the so-called release shows, indeed, no want of harmony; but it was unilateral harmony; there was but one mind operating; the mind of the respondent was plainly in no condition to agree to anything; and appellant should not be allowed to shelter itself behind an instrument obtained in such a way.
The judgment should be affirmed.