(after stating the facts). It is insisted by appellant that there is no testimony sufficient to warrant a verdict against it, nor to avoid the release executed by appellee upon a settlement of his claim for damages for the injury inflicted.
It was the duty of appellee to keep the track in condition for the passage of trains, to take notice of the operation of all trains upon the road, so far as the observation of them was necessary to the performance of his duty and the protection of himself and his men and to keep the track clear and free of obstructions for the operation of trains upon the road including any furnished by himself and his men iii the performance of their duties. He had been over his section in the morning with one of his men and they were returning from the other end at the time of the injury, after having been notified by the bridgeman that a certain train was four hours late, which usually passed along there about that time. Appellee states that he was not aware that passenger train No. 5 was running in sections; that he paid no attention to the signals upon the train and Avas not expecting a train, except from the south. And, although he had another man on the speeder Avith him, who sat facing to the north, both of them testified that they were looking towards the south as they proceeded that way. Their testimony, it is true, shows that they exercised some care, both at the beginning of the curve and at one or two places in rounding it, to ascertain the approach of trains, but the fact remains that they had passed the curve a long way before the accident occurred, and did not discover the approach of the train from the north until it was close upon them. Upon discovering it, they immediately set about removing the speeder, lifted the front end of it from the track four or five feet and Avere both in the clear, when they discovered that the little hind wheel had lodged on the inside of the rail and appellee turned and took hold of the connecting rod and continued trying to remove it until it was struck by the train and he was injured.
It was his duty, as already said, to clear the track of any obstruction that might otherwise result from his use of it with the speeder to this approaching train and to discover the approach of the train in time to clear the track, but if it be said that he was negligent in failing to discharge his duty, it would not excuse the railroad company for injuring him, if it failed to use the proper care to prevent injury to him after he was discovered to be in a position of peril.
The evidence is undisputed that a lookout was kept by the trainmen, that the speeder was discovered more than a mile away when the train was going at 40 to 45 miles an hour; that warnings were giA^en, crossing whistles blown and danger signals and when the men on the speeder gave no evidence nor showed any signs of being awjare of the approaching train, the engineer slowed down the speed of his train and had gotten it under control where he could have stopped it before reaching and striking the speeder, if the men had not attempted to remove it, and he had not thought that they had removed it and were in the clear, or would be by the time he reached them. He stated that both men after discovering the train, jumped off of the speeder, took hold of it and carried the front end of it four or five feet from the track; that he saw they were removing it, that they were in the clear and had time to complete the removal of it before he would reach them. That later, when he discovered that Morgan had again taken hold of the back end of the speeder and the little hind wheel had not been removed from the track, he could not stop the train in time to avoid the accident, although it was running slowly at the time and then there was no danger of a wreck from striking the speeder.
The testimony of all the witnesses shows that the men on the speeder discovered the approaching train in time to have removed it from the track if the wheel had not hung on the rail and that they did remove the front end of it and were entirely in the clear and in places of safety themselves before the train reached them. Appellee stated that before stooping over to try to release the little wheel to remove it, he looked and saw the engineer standing in the cab, looking at him, and thought the train was going to stop.
The engineer had the right to rely upon the presumption that appellee would clear the track of the obstruction and remove himself to a place of safety, until he discovered that he would not do so, for it was only then that he would have known him to have been in a perilous position.
The burden of proof was upon appellee to show, in order to recover damages, that the employees in charge of the train discovered his perilous position in time to have avoided injuring him and negligently failed to use proper means to do so after discovering Ms peril. St. Louis, I. M. & S. Ry. Co. v. Watson, 97 Ark. 560-564; St. Louis & S. F. Rd. Co. v. Townsend, 69 Ark. 380; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522.
The engineer saw appellee get off the speeder and remove the front end of it from the track, and thought, as he had a right to do, that it all would be entirely removed before his train reached the place, unless he sooner discovered the speeder was hung and that appellee was going to continue to try to remove it and was in a place of danger. Appellee said he saw the engineer looking at him and thought the train was going to stop and he continued to try to remove the speeder, thinking he could do so and that it was necessary to do it, in order to prevent a wreck.
Under these circumstances, we are not able to say that there was not sufficient testimony to have submitted the question of negligence on the part of the railroad company in failing to use proper means to stop the train and avoid the injury after the peril of appellee was discovered.
Said instruction numbered three, however, does not correctly state the law. It told the jury that it was the duty of the enginemen in charge of the train to employ all the necessary means and appliances consistent with the safety of the passengers of the train to slow down and stop it, if they discovered the appellee with his speeder on the track some distance ahead of the train and the jury believed that at the time of such discovery or at any time thereafter the appellee’s life or body was in peril from such passenger train. It also told them that if they believed at the time of the injury, or a sufficient time prior thereto for them to stop or slow down said train, appellee was engaged in removing the speeder from the track in front of it and was so engaged for the purpose of preventing a wreck of the train and they believed that the manner in wMch the operatives of the train acted was negligent and that the emergency cansing appellee’s injury was not due to his negligence they' should find for him.
The instruction took away from the jury entirely the consideration of the question of the engineer’s right to assume that appellee would clear the track of his speeder after he discovered the approaching train, and of their judgment that he had done so and told the jury that if he was imperiled from the train any time after his discovery by the enginemen and they could have stopped the train it was necessary for them to do so and if they discovered him so engaged a sufficient time prior thereto and he continued engaged in removing the speeder, in the honest belief that it was necessary to prevent a wreck, that the company was liable if the manner of the operation of the train was negligent and the emergency was not caused by appellee’s negligence.
This question has nothing to do with the case and should not have been submitted at all. The only question in it was whether the enginemen discovered appellee to be in a position of peril from which he could not extricate himself in time to have prevented the injury to him and failed to use proper care to avoid the injury after such discovery.
It is next contended that the release executed by appellee was valid and that the court erred in not declaring it so.
The answer alleges that it was obtained fraudulently by false representations to the appellee inducing him to sign it, the particular representations relied upon to avoid it being that the employees of the claim department told appellee that they would give him $45 in settlement and permanent employment in his old position and that the release as executed recited this fact. No reliance is placed upon .any misrepresentation of the existing physical condition of appellee by the doctors at the time of sending him from the hospital, nor any representation by them as to the time required for the complete recovery from the injury. The evidence may be regarded undisputed thus far. The claim agent admitted that he told appellee he did not consider the company liable for his injury; that he would give him $45 on account of.it, as that would about pay him for the time lost and appellee then suggested that he would like to have his old place back and the claim agent assured him that it would be given to him. He called up the road-master on the phone, in appellee’s presence and hearing, and after he finished talking told appellee the roadmaster said he cold have his old place back again any time he was ready to go to work. Appellee took a letter from the claim agent to the roadmaster and was likewise informed by him that he could have his place again; and he did go back and was given his old position. He, himself, does not state that the claim agent told him that the agreement or stipulation that he should have his old position back permanently was recited in the release. Nowhere does he claim that, except in the answer, but only says that that was a part of the consideration for the release and agreed upon by the employees of appellant and himself, and but for it he would not have signed the release at all.
Waiving the determination of the question of whether such a representation so made of a promise to employ in the future without any false statement as to any such stipulation being contained in the release at the time of its execution would constitute such a false representation as would avoid the release, it would certainly be necessary in order to avoid the effect of the releíase if it be held that such promise was a part of the consideration therefor, that the promise was made without any intention to perform or fulfill it and to induce appellee to sign an instrument, which he would not otherwise have executed. The burden of proof is, of course, upon him to show such circumstances, as would relieve him from the effect of a release which he admits having signed, and although he states that he was “fired” from his old position shortly after it was given back to him, he does not deny that it was because of incompetency or inefficiency in the discharge of his duties, as testified tq by the roadmaster who relieved him of employment. The burden being upon him, he can not escape the effect of the release without showing that fraud was practiced upon him in its procurement and if the agreement he claims to have been made to permanently employ him at his old position at a certain wage was made by those in authority to employ him, it certainly can not be held that he should be so employed without regard to whether he discharged the' duties of the place in a manner reasonably satisfactory to his employer.
Por the error in the giving of said instruction numbered 3, the judgment is reversed and the cause remanded for a new trial.