On April 28, 1910, the plaintiff, a laborer and employee of the defendant, was, with other of defendant’s employees, engaged in operating a doser; that is, a flat car equipped with wings, constructed of steel and wood, which could be raised and lowered, the purpose of which was to improve the railway roadbed close to the ends of the ties. The wings of the doser were raised and lowered by means of a crank on each side of the flat car connected with appliances thereon. While the plaintiff was operating one of the cranks, the dog, which *489should have held it, slipped, throwing the crank around rapidly, with the result that it struck the back of his left hand, breaking the bone thereof, and otherwise injuring it, so that it is permanently crippled to the extent that, after the necessary removal of one of his fingers, there will remain only the thumb and little finger in a normal condition. He brought this action in the district court of the county of Traverse to recover damages in the sum of $4,060, which the complaint alleged he had sustained as a result of his injuries, and that they were caused by the negligence of the defendant in permitting the appliances connected with the crank to become and to remain in a defective and dangerous condition.

The answer denied any negligence on the part of the defendant, and alleged that the plaintiff’s injuries were caused solely by his own negligence, and, further, that the plaintiff and defendant had a full settlement of his claim for damages, whereby it paid to him $100, which he accepted in full of his claim and executed a written release thereof.

The reply alleged in effect that the release was obtained from the plaintiff by the fraudulent representations of the defendant, which were relied upon by him; that at the time the release was signed it was agreed by the plaintiff and the claim agent of the defendant that the plaintiff was to be paid $100 for the time he had lost from the date of his injury to July 1; and that he accepted the money and signed the release, relying upon the false representations of the agent that it was a receipt for the sum so agreed upon and paid, and not otherwise.

On the trial of the issues there was evidence tending to establish the allegations of the complaint. The trial judge submitted to the jury, with the other issues, the question whether the release was obtained by fraud as alleged, and instructed them in effect that the release was prima facie valid, and the burden was on the plaintiff to establish the alleged fraud by evidence clear and convincing to a reasonable certainty; that, if he had failed so to do, the verdict in any event must be for the defendant; but, if they found for the plaintiff on all of the issues, they would return a verdict for the plaintiff, deducting from his damages the $100 already paid him by defendant. *490The instructions were clear and fair, neither party excepting'to any of them. The plaintiff had a verdict for $400, and the defendant appealed from an order denying its motion for a new trial on the ground that the verdict was not justified by the evidence.

It is here practically conceded that the evidence was sufficient to sustain a finding for the plaintiff on all of the issues, except the one as to whether the release was obtained by fraud; but it is urged by defendant’s counsel that the finding upon the issue of fraud is so manifestly and overwhelmingly against both the oral and written evidence that it was at least an abuse of discretion not to grant a new trial.

Assuming that the plaintiff is a man of ordinary intelligence, the documentary evidence is quite persuasive that he intelligently released his claim for damages. When, however, the documentary evidence is considered in connection with facts which the evidence fairly proves, it is reasonably clear that the finding of the jury on the issue was justified by the evidence. The facts to which we refer are summarized in the memoranda of the trial court as follows:

“The gross negligence of defendant was clearly established. The fact that the injury was both severe and permanent could not be questioned, any more than the fact that it so crippled a common laborer that he would never thereafter be able to do a common laborer’s work. Under the evidence the jury might well believe that a man so seriously injured as plaintiff was, and having an apparently honest claim against the defendant for a large sum, would not intentionally and knowingly release his whole claim for the insignificant amount of $100.”

The trial court and jury had the advantage of seeing and observing both the plaintiff and the agent, who directly contradicted each other as to what was said and done when the release was obtained, and were in a position intelligently to determine which one of the witnesses was credible, and which was inexperienced and simple-minded, if either were. We are of the opinion that the finding of the jury upon all of the issues is justified by the evidence.

Order affirmed.