The action is to recover damages for personal injuries.- The plaintiff was struck by a car while crossing the defendant’s tracks, in front of its depot, in the city of Niagara Falls.,
The accident occurred on the evening of May 30, 1907, on what is known as the Erie transfer track, owned by the defendant and used by the Erie Railroad Company as well as the defendant Central Railroad Company. The harm was done by an Erie car. A switch engine and crew of the Erie Company was at work on the transfer track, and while the plaintiff was walking around the end of standing cars they were suddenly started by an Erie kicked car. The plaintiff was caught. His right leg was crushed and he was otherwise injured.
It was customary for passengers to cross these tracks; they had even been directed to do so by the defendant’s employees. At times openings were made in the strings of cars to permit them to do so. In short, the evidence shows that not only were passengers accustomed to cross here, but the work of switching and transferring was being done when y>eople were crossing.
I think the evidence is sufficient to warrant the finding that the Central Company as well as the Erie Company was negligent. The action is not brought against the Erie Company, as it finally, acknowledged its liability by paying the plaintiff $7,000. The defendant disputes its liability and appeals from the judgment entered upon the verdict of $10,000 against it.
We are all agreed, as I understand it, that the evidence is suffi*3cient to establish the liability of the defendant, and that none of the grounds urged by defendant’s counsel is sufficient to justify reversal, save one, to which I will call attention presently, and upon that we are divided. The only other question is that of damages.
As regards the damages, I think the verdict should not be disturbed. The plaintiff not only lost his right leg, but he was otherwise seriously injured. He was bruised ; his back wrenched; his left foot injured; his suffering has been intense and protracted; blood poisoning set in, and for a time his life was dispairéd of; while he now uses an artificial leg, the stump of the amputated limb becomes irritated and swells, so that its use is attended with difficulty and more or less suffering constantly. At the time he was injured he was running a haberdashery store in the city of Niagara Falls. Ilis earnings were from $150 to $200 a month. While his present earnings by way of salary as county clerk of Niagara county are no less, it cannot of course be foretold how long his holding of that office will continue. At all events, a jury of his own county ought to be better able to judge of that than we are. I think we cannot say that the verdict is excessive.
As regards the remaining question. The defendant alleged as an . affirmative defense that the plaintiff “ for a good and valuable consideration equaling or exceeding in value and amount all the damage * * * suffered by the plaintiff,” to him paid by the Erie Company, released and forever discharged both the Erie Company and the defendant. It gave no proof on its part of that defense, but contends that the evidence conclusively establishes an accord and satisfaction. There is no proof whatever of any release, and the evidence of an accord and satisfaction is very meager, and comes from the plaintiff himself. Assuming that the defense of accord, and satisfaction is sufficiently pleaded, I think the evidence at best presented a question of fact, and the defendant not having asked to go to the jury upon that question, is concluded by the verdict. The only evidence upon that subject is the plaintiff’s testimony'to the effect that he brought an action against the Erie Railroad Company first; that he settled the action against the Erie Company, and received at the time he made the settlement $7,000. He was shown a paper oil the trial, and stated that the signature thereto was his signature, and that it was a paper of settlement; but counsel for *4neither party introduced the paper in evidence. It is not in the record, and we have no means of knowing its contents. This testimony was given upon direct examination. Upon cross-examination of the plaintiff counsel for the defendant evidently attempted to show that plaintiff in his complaint against the Erie Company alleged that his injuries were due solely to the carelessness of that company., Ilis attention was called to the allegations of the complaint in that action. He acknowledged that he had sworn to the complaint, but stated further that at the time he settled with the Erie Company he did not understand it just as he alleged it in the complaint. Upon neither the direct nor cross-examination was the plaintiff interrogated as to the terms of the settlement.
Undoubtedly an unconditional release under seal by the plaintiff to the Erie Company, or an accord and satisfaction with that company of his claim for the personal injuries sustained by him, that is, payment thereof in full, would release and discharge the Central Company. But it is equally clear that even an instrument under seal in which one joint tort feasor is released from all liability, which reserves the right of action against the other joint tort feasor, is not such a release as to come within the operation of this rule, but is regarded as a covenant not to sue. Such an instrument does not discharge the right of action so reserved against the joint tortfeasor. (Gilbert v. Finch, 173 N. Y. 455; Walsh v. Hanan, 93 App. Div. 580.)
But, as has' been stated, there is no evidence of any release. We have here the bare statement that the action against the Erie Company was settled, and that it paid the plaintiff the $7,000. I think the inference entirely reasonable that the $7,000 paid by the Erie Company was a partial payment, rather than a payment in full, especially in view of the finding of the jury that the plaintiff sustained damages to the extent of $17,000. The case was submitted to the jury upon that theory. The jury was instructed to deduct the $7,000 from whatever amount they fixed as the damage sustained by the plaintiff. That course seems to have been acquiesced in by the defendant; at least no exception was taken to the charge in that regard; and that theory, I think, is quite in accord with the allegations of the answer — that the sum paid by the Erie Company equaled or exceeded the total amount of the damages. *5It is true that the defendant’s counsel stated as one of his grounds for the nonsuit, as well as for the direction, of a verdict in favor of the defendant, that the plaintiff had settled his case with the Erie Company. Assuming that to mean that there had been an accord and satisfaction, I think, as has been stated, that the defense had not been conclusively proven. Certainly, if the plaintiff sustained damages to the extent of $17,000 he had not been paid in full.
The judgment and order should, therefore, be affirmed, with costs.
All concurred, except McLennan, P. J., and Williams, J., who dissented in an opinion by McLennan, P. J.