The opinion
MoNtgomjbby, J.,
dissenting.
The plaintiff brought this action to recover from the defendant damages for personal injuries suffered by the plaintiff by being struck by one of defendant’s locomotives. The defendant pleaded a release and settlement, and also contributory negligence on the part of the plaintiff.
The contributory negligence of the plaintiff and the last clear chance of the defendant by which the plaintiff’s injury might have been avoided were matters not considered in the trial below.
The action was dismissed by his Honor upon the motion of the defendant after the plaintiff’s evidence was in — his Honor holding that, upon the plaintiff’s own testimony, he was not entitled to recover.
The release, which was under seal, recited the injury of the plaintiff by the defendant’s train and the plaintiff’s claim that he ivas hurt by defendant’s negligence, and that for and in consideration of (blank) dollars the plaintiff acquitted, discharged and released the defendant from all liability on account of the injury. If the release, being under seal, had mentioned no consideration, the law would have raised a conclusive presumption in the absence of fraud or mistake *344 that a consideration bad been received by tbe plaintiff. But it was undertaken in tbe release to set forth tbe consideration in dollars and cents, and tbe amount was left in blank. Tbe release was therefore of itself no more than a blank piece of paper. Pepper v. Harris, 73 N. C., 365 . But when tbe plaintiff was cross-examined, tbe release was shown to him and he admitted that be bad executed it, and mentioned tbe consideration for which be bad done so. He said, “I thought it was a paper that enabled Uncle Eli Williamson to get bis money for waiting on me while I was laid up with tbe injury. I signed it so be could get pay. Eli Williamson bad told me, before tbe paper came to me to be signed, that that was tbe only way be could get bis money. I was at bis Louse during my sickness. I wanted Eli to-be paid, and I signed tbe paper so he could get bis money. Pie bad taken care of me and nursed me during my sickness.”
Tbe plaintiff in bis reply alleged that “be bad been misled and deceived into signing tbe paper,” without intimating by whom be was deceived or misled, and in what manner. If that could be, under our liberal system of pleading, considered as charging a fraud on tbe defendant in tbe procuring o± tbe execution of tbe release, tbe plaintiff’s own evidence disproved it. It is true that be said be pould neither read nor write, and that tbe paper was not read to him; but, on tbe other band, he did not ask to have it read to him. No trick or device was resorted to by tbe defendant to procure tbe execution of tbe release, and tbe plaintiff signed it without asking that it be read to him. If, under such circumstances the defendant practiced a fraud on tbe plaintiff, it was accomplished through tbe plaintiff’s own negligence. Gillespie v. Dellinger, 118 N. C., 737 .
The plaintiff’s counsel in this Court insisted that tbe release set up in tbe defendant’s defence was a plea in avoidance, and. that tbe "whole matter should have been submitted *345 to tbe jury. That tbe ruling of bis Honor was equivalent to an affirmative finding of an issue, and could not be found by tbe Court. If there bad been any conflict in tbe evidence, then tbe position taken by tbe plaintiff’s counsel would bave been correct. But there was no doubt or conflict in tbe evidence. It was all given in by tbe plaintiff himself, and tbe defendant demurred to it; and, as was said by this Court in Neal v. Railroad, 126 N. C., 634 , “This was an admission by tbe defendant that tbe evidence was trae. Tbe plaintiff, by offering tbe evidence, bad vouched for its credit. He could not impeach its credit.” That tbe evidence of tbe plaintiff in reference to tbe release was brought out on tbe cross-examination of the- plaintiff, does not alter tbe principle involved. Tbe cross-examination of a witness is as essential a part as the evidence in chief.
I think there was no error.