dissenting: As the majority opinion is made to turn on the validity of the release signed by plaintiff, it is not necessary to discuss the evidence of negligence further than to say that, in my opinion, there is evidence of the failure of the defendant to furnish sufficient help and a safe place to work.
The defendant’s agent stated to plaintiff shortly after his injury “he had a form to complete and fill out before I could be admitted to the hospital as a Railroad patient.” Shortly thereafter he told plaintiff he wanted to complete his records and “that in case of strangulation of a hernia that it would put me in right much of a fix if I didn’t have this form completed which would admit me in the hospital as a railroad patient. . . . He said in case it would get strangulated around 2 or 3 o’clock at night it would be inconvenient to get in touch with him or someone else that could fix the papers that could admit me in the hospital,” and asked plaintiff to come by his office the next day “to complete the form.” The next day the statement was repeated and plaintiff signed *97the instrument. At the time Barnett, the agent, in soliciting a witness, stated to others in the presence of plaintiff “that he wanted to fix me up to go to the hospital.” He also told G. C. Kepley, who signed as a witness to plaintiff’s signature, that “he had some papers he wanted Mr. Harrison to sign to get him in the hospital” and a Mr. Holshouser said in Barnett’s presence when Kepley demurred, “it wasn’t nothing.”
The ungrammatical statement proved to be prophetic. It was indeed something. Plaintiff, thinking he was signing hospital admission papers released all claims he had against the defendant arising out of his injuries, save and except the hospitalization costs. McCall v. Tanning Co., 152 N. C., 648, 68 S. E., 136; Butter v. Fertilizer Works, 193 N. C., 632, 137 S. E., 813; 23 A. J., 874. Thus he signed one instrument thinking he was signing another. Tie W'as induced so to do by the false representation it was a paper to admit him to the hospital. This, in my opinion, constitutes fraud in the factum, or at least evidence thereof sufficient to be submitted to the jury.
Plaintiff did not read the instrument before signing. Even so, if there was fraud in the factum, then plaintiff’s failure to read is no defense. He signed the paper “believing it was a form to get me in the hospital.” Thus he never signed the paper he intended to sign and never intended to sign the instrument to which his signature is attached. He was induced to sign hv false representations as to the nature and content of the instrument. See 23 A. J., 874, and authorities cited in notes.
The representations of Barnett as to the character of the paper plaintiff was requested to sign were sufficient to throw him off his guard and excuse his negligence, if any, in not reading the instrument. Butler v. Fertilizer Works, supra; Engle v. American Car & Foundry Co., 287 S. W., 801; Union Pac. Ry. Co. v. Harris, 158 U. S., 326, 39 L. Ed., 1003; St. Louis I. M. & S. By. Co. v. Smith, 100 S. W., 884; Armstrong v. Steel Co., 268 S. W., 386; Hot Springs Ry. Co. v. McMillan, 88 S. W., 846; Anno. 134 A. L. R., 61.
In the absence of a showing that he was fraudulently misled or misinformed as to its nature or contents, or they are kept from him in fraudulent opposition to his request, a party to a written contract is deemed to have signed with full knowledge and is bound by the terms of the instrument he has executed. Williams v. Williams, 220 N. C., 806, 18 S. E. (2d), 364. But a party who is guilty of fraud in the procurement of the execution of a contract “shall not be allowed to cry ‘negligence’ as against his own deliberate fraud.” Linington v. Strong, 107 Ill., 295 (p. 302); Furst v. Merritt, 190 N. C., 397, and cases cited.
On this record Barnett, after the “release” was executed, continued to string him along” and lull him into a false sense of security. Plaintiff repeatedly interviewed him after his first operation relative to pay for *98loss of time and Barnett told him ". . . just carry out his (Dr. McKenzie’s) orders. I will get you some money . . . that it took time—that they were a big Company and busy, and were not as hasty as we might think they ought to be but just rest assured that he would take care of that part of it for me . . . one thing that was slowing them up was the fact that the injury wasn’t well ... I was under Dr. McKenzie’s orders, go right ahead, and that I would get pay for additional loss of time . . . I was needing money, wanting money and he promised me money. Mr. Barnett agreed with me. . . . He said he was just waiting for the officials to send it.” Just before the fourth operation “I told him that I had to have money—that my family did. He said he would write them immediately and was sure he would get action ... he would mail the check to me or take it out to the house so my family would have some money to get by on while I was in the hospital. Mr. Barnett said surely this operation would cure me and make it possible so that they could settle up—maybe they didn’t want to settle in part.” (Italics supplied.)
It was not until after the fourth operation that a release was mentioned. Barnett then said he agreed with plaintiff about the loss of time “but that the officials in Washington were of another opinion because of the fact that I had signed a release before the first operation. Then I did blow up. I said, you mean to say that form I signed to get in the hospital was a release and he said well, yes, sir, in a round-about way it was, that it released the Company from all except doctor and hospital bills and that they didn’t feel that they should do any more because you signed the release . . . it wasn’t his decision, it was theirs.”
He declined any further hospitalization after he was thus advised the paper writing was a release.
All this testimony respecting conversations between plaintiff and Barnett after the execution of the release, in my opinion, was admissible not only in corroboration of plaintiff’s testimony concerning the circumstances under which the instrument was executed, but also as tending to establish Barnett’s fraudulent intent.
It is true plaintiff had legal advice before his fourth operation, but he “was assured (by counsel) that everything was all right; that Mr. Barnett was handling the matter for me, and he readily agreed I had money coming.” Surely this did not put plaintiff on guard to the extent that his acceptance of hospitalization thereafter constitutes a ratification of the release as actually signed by him.
While this evidence concerning legal advice, except the bare statement that he had legal advice before he went through the fourth operation, was excluded, I am of the opinion this was error. Surely, if proof of the fact he consulted counsel is admissible as tending to show notice and ratification, he was entitled to give evidence as to the advice received so as to rebut the adverse implications.
*99As I am of the opinion the record discloses evidence of negligence and of fraud in the factum sufficient to vitiate the release, I vote to reverse.
Devin and Seawell, JJ., concur in dissent.