Opinion by

The plaintiff claims compensation for an injury which he alleges he received through the negligence of the defendant. That the defendant’s car collided with the plaintiff’s wagon and that one of the consequences of the collision was that the plaintiff was thrown from the wagon to the ground is undisputed. Whether the occurrence was attributable to a want of reasonable care on his part or to negligence on the part of the defendant were questions for the jury upon the evidence applicable to them. It is not contended that the evidence affecting these questions was insufficient to warrant their submission to the jury. It is true that the excerpt from the charge which is the subject of the fifth assignment is criticised by the defendant as unauthorized and partial. The criticism does not involve a denial of the sufficiency of the evidence, but it alleges a misstatement of it in the instruction. A careful examination of the evidence affecting the questions of negligence and of the ■ instruction’s applicable to them has satisfied us that there is no merit in the criticisms of the excerpt referred to, when it is' considered, as it should be, in connection with the other parts: of the charge relating to the same subject.

The third assignment is based on the refusal of the defendant’s fourth point, which is as follows: “ There is no evidence1 connecting the plaintiff’s present condition with any negligence; *23on the part of the defendant causing the same, and under the evidence in the case, if the jury find the defendant negligent, they must be limited in the verdict to the damages shown to bo done to the plaintiff’s wagon, to wit: the destruction of the single-tree.” This point, in view of the defense based on the alleged settlement and release, is interesting. It shows a change in the defendant’s conception of its liability to the plaintiff for the injury he received in the collision. The fourth point and the alleged settlement as testified to by the agents of the defendant present seemingly inconsistent defenses. The former denies any liability on the part of the defendant for the injury the plaintiff received by his fall from the wagon, and the latter related principally, if not entirely, to compensation for it. It was not “ the destruction of the single-tree ” that moved the defendant through its agents to prepare and, if possible, to obtain from the plaintiff, a release of all damages accruing to him or his property by reason of injuries received in the collision. The release which the defendant sought to obtain from the plaintiff, and the testimony in relation to it unite in showing a recognition by the former of liability to the latter for injuries to person and property. Besides the inconsistency referred to there was ample evidence compelling the refusal of the defendant’s fourth point. The plaintiff’s description of his fall from the wagon, and the testimony supporting it, together with the testimony of Dr. Miller and of Dr. McCord, tended strongly to show that his condition on November 29, and afterwards, was the result of his fall, the day before.

The remaining assignments may be considered together. They refer to the defense founded upon the release and to the instructions in regard to it. It seems that one evening, in December, about three weeks after the collision, Wheeler, the defendant’s paymaster, and Irwin, the defendant’s superintendent, with the aid of a colored man they had never seen before, found their way to the house of the plaintiff for the purpose of obtaining a settlement of his claims, arising from the occurrence of November 28, against their employer. They found him in bed and, according to their version of his condition, competent to make the settlement they sought. They testified that they paid him $40.00, and that he was satisfied with that sum ; that Wheeler then signed the plaintiff’s name to the release *24they had prepared, that the plaintiff made his mark to it, and that Wheeler and their colored guide signed their names to it as witnesses of the execution of it. Wheeler and Irwin testified positively that they saw the plaintiff make his mark on the release at the proper place, with the pen in his right hand, and without assistance from anybody. They were the only witnesses who testified that he was mentally competent to make the settlement, or physically able to make his mark to the release without assistance. Against this testimony there is the testimony of at least six witnesses to the effect that he was mentally and physically incompetent to transact any business at, and for weeks before and after, the time it is alleged the settlement was made and the release executed. Dr. Miller visited the plaintiff frequently from November 80, to January 22, and he was asked, “What was the condition of Julius’s right arm, with respect to capacity to write or to make a mark, at any time during that time ? ” and his answer was, “ During that time he was paralyzed, palsied, and it is beyond reason, and it was impossible, for that man to lift a pen or to use it unaided.” To the question, “What as to his mental capacity about December 26 ? ” Dr. Miller replied, “ I would say that during that time he could neither apprehend nor comprehend the signing or making of a contract. In the first place he could not, with the hand, and in the next, he could not, with his mind.” His testimony on these points was positively corroborated by the testimony of Dr. McCord and other witnesses. It is veiy clear from the evidence in the case that the court could not instruct the jury that the release in question was binding upon the plaintiff, and a bar to a recovery. The instructions on this branch of the defense were clear and fair, and the defendant has no cause to complain of them or of the answers to its points. As we discover no error in the instructions or rulings complained of, we overrule all the assignments.

Judgment affirmed.

dissenting.

I am not able to agree with the majority of the Court in the disposition of this case. I do not consider that there was any evidence of negligence of the defendant company, and therefore the case should have been withdrawn from the jury. The *25release was executed by tbe plaintiff with a full knowledge of its contents, and this was abundantly established by the testimony of the persons who were present at its execution. The plaintiff was injured Avhile he was attempting to cross the track in front of an approaching car and, under all the authorities, he 7 cannot recover in such circumstances. In its most favorable aspect to the plaintiff the occurrence was a mere accident, for which the defendant is clearly not responsible. I would reverse the judgment.