Morstad v. Atchison, T. & S. F. Ry Co.

Citations

• 23 N.M. 663
• 170 P. 886

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. A single act of negligence, except in rare instances, is insufficient to establish incompetency of a fellow servant.</p> <p>P. 667.</p> <p>2. (a) Seption 16 of article 20 of the Constitution, abrogates the common-law fellow-servant doctrine in this jurisdiction as applied to railroads, (b) A complaint which charges the master with negligence in the employment of an incompetent fellow servant, and which charges the fellow servant with negligence, is a complaint alleging two concurrent causes operating to effectuate an injury, and proof of either will be sufficient to entitle the plaintiff to recover.</p> <p>P. 668.</p> <p>3. Ordinarily it is the. duty of every person to read a contract before he signs the same, if he can read, and it is as much his duty to have the same read and explained to him before he executes it, if he cannot read or understand it. If he fails in this regard, he will ordinarily be estopped to deny his contract. An exception to the rule, or what may be termed another and different rule, exists, and has application in certain circumstances. It is to the effect that where fraud or misrepresentation enters into the contract, the same may be avoided by the defrauded or deceived party under proper circumstances. P. 669.</p> <p>4. It is competent’ to show by parol that the consideration for a contract was greater or less than or different from the one expressed. P. 672.</p> <p>5. A question not raised in the court below will not be considered on appeal. ' P. 672.</p> <p>6. Although the trial court erroneously refused a motion of the defendant for an instructed verdict in its favor, for .which the cause will be reversed, still where it does not appear from the record that the plaintiff may not be able to- show upon another trial his right to a recovery, it is proper to remand the case, with instructions to award a new trial, rather than to remand the case, with instructions to enter the judgment which should have been