after stating the case: The two first assignments of error have reference to the issues of fact — first, those which the Court submitted to the jury; and secondly, those proposed by the defendant, and which the Court refused to submit. The two may be considered and dispose^ of together. In this connection, it is important to observe the nature and purpose of the pleadings, and the same of the issues arising upon them, and how they arise.
The plaintiff alleges that he was the servant — a brakeman — on a train of cars of the defendant, and while he was employed about his duties as such, he sustained physical injuries, and damages as a consequence, occasioned by the default and neglect of the defendant in respects specified. The defendant denies the material allegations of the complaint, and, in its answer, alleges three grounds of affirmative defence — first, that of contributory negligence on the part of the plaintiff; secondly, negligence of a fellow-servant of the plaintiff; and thirdly, that the plaintiff, for a valuable consideration, released the defendant from liability to him for the injuries complained of, and damages as consequence thereof. The answer alleges “new matter constituting a defence by way of avoidance,” or rather three distinct matters of defence by way of avoidance. The plaintiff, in his reply, first, simply denies that the matters so ¿lleged are true. He further replies, as matter of inducement, that the *741defendant owed him about the sum of fifty dollars. He then, in that connection, further replies and alleges, specifically—
“ 3. That said alleged release was obtained by the agent of the defendant company a few days after the said injuries were received, and while plaintiff was suffering great bodily pain therefrom, mental anxiety by reason thereof, and was unable to comprehend the meaning or effects of the same.
“4. That plaintiff was, at the time the alleged release was procured, and is now, an ignorant, illiterate colored person, unable to read or write, and did not understand or comprehend the purport of said alleged release.”
He thus replies and alleges, as to the release relied upon by the defendant, new matter, equitable in its nature, not inconsistent with the complaint, and demands judgment that he he relieved as to the same for the purposes of this action, and it be declared and adjudged inoperative and void. The defendant might allege such matters of defence, whether legal or equitable in their nature, and so the plaintiff might make reply. The Code, §§243, 244, 245, 248. The matter, equitable in its nature, alleged in the reply, is not so fully, specifically and formally alleged as it might and ought to be, but the Court can see the substance and purpose of it, and, therefore, the reply must be upheld as a pleading. All matters equitable in their nature should be alleged in the pleadings with such reasonable fullness and particularity as to the constituent facts as will enable the Court to see clearly the character of the equity alleged, the purpose of the pleading and the issues raised. Under the present method of civil procedure, the parties to an action may allege their causes of action, and their rights in and about them, in the same action, whether the same be legal or equitable, or both, and the Court must administer such rights in the action where the same are pertinent, and to administer them is necessary to a proper determination of it. The constituent facts of an *742alleged equity, whether the same be the chief cause of action, or be alleged as a pertinent incident in the course of the pleadings, in some aspect of the case, are sometimes voluminous and complicated. In such cases, the essential facts— not such as are immaterial and merely evidential — should be so alleged as to present the equity clearly and with a view to facilitate the trial of necessary issues of fact when raised. This is necessary in order to avoid a multitude of issues and to prevent confusion. In some cases — particularly in some equity cases — it would facilitate the trial and disposition of them if the Court would “direct the jury to find a special verdict, in writing, upon all or any of the issues,” or if it would “ instruct them, if they find a general verdict, to find upon particular questions of fact, to be stated in writing,” and to make a “written finding thereon,” as allowed by the statute (The Code, §409). Porter v. Railroad, 97 N. C., 66.
Now, in this case, the complaint and answer directly raised the issue of fact as to the alleged negligence of the defendant. The pleadings, and particularly the answer and the reply, raised — first, the issue of fact as to the contributory negligence of the plaintiff; secondly, that as to the negligence of a fellow-servant; thirdty, that as to the alleged release of the plaintiff executed to the defendant; fourthly, that raised by the allegation of the reply, that the release mentioned was obtained by the defendant from the plaintiff shortly after he sustained the injuries complained of, while he was suffering great bodily pain and mental anxiety occasioned thereby, was unable to comprehend the meaning and effect of the release, and that he was ignorant, illiterate, unable to read or write, and did not understand or comprehend the purport of the same.
The Court, plainly,, properly submitted the first four issues directly, and a fifth one as to damages. This the defendant’s counsel concedes, but he insists that the second, third and fourth issues submitted were not raised by the *743pleadings — that they were immaterial, confusing and inconsistent with the first issue submitted, and, therefore, absurd. We cannot treat these objections as well founded.
The reply to the answer does not expressly allege that the release in question was obtained from the plaintiff by the fraud of the defendant or its agents, but it does allege informally, in substance and effect, that it was obtained by the defendant under such circumstances of unfairness, undue advantage, inadequacy of consideration, suddenness, while the plaintiff was suffering great pain and mental anxiety, while he was ignorant and unable to comprehend the meaning and purpose of such an instrument — under such circumstances of mistake and surprise as that the Court, in the exercise of its equitable jurisdiction, ought and will not allow the defendant to plead and use it to the disadvantage of the plaintiff in this action. The reply as to the release certainly alleges such pertinent matter, equitable in its nature in appropriate connection, as will induce the Court to entertain and allow the same to be litigated and determined in the orderly course of action. The matter so alleged is fit and appropriate to be pleaded, and all issues, whether of law or fact, raised concerning the same must be tried and determined in the regular course of procedure.
The defendant did not, in any respect, demur to the reply to the answer. It was treated by the parties and by the Court as if the allegations therein were denied, and thus serious issues of fact were raised to be tried by the jury. The plaintiff had the right to have these issues tried. Perhaps the Court might have framed a single issue of fact as to the validity or invalidity of the release, but it submitted three issues in that respect, with the view and for the purpose of thus ascertaining the leading distinctive facts underlying the alleged equity. While the pleadings did not logically raise the three issues as submitted, the three, in effect, were so framed as to settle the material facts — the issue of fact to *744be passed upon by the jury. The issues submitted were plain; the jury could understand them; they were not confusing, nor did they, in any respect, because there were three, prejudice the defendant. It does not so appear from the record, nor can we see that it did necessarily. Regularly and ordinarily, the issues of fact simply as raised by the pleadings should be submitted to the jury, but that they are subdivided intelligibly will not be ground for a venire de novo if the party complaining was not thereby prejudiced. The first exception cannot, therefore, be sustained.
The issues proposed by the defendant were substantially, in all material respects, embraced in the issues one, five, six, seven and eight submitted. That was sufficient.
The contradiction and absurdity in the pleading and issues, in respect to the release complained of, did not at all affect the substance of the pleading or the issues. Under the present method of procedure and pleading a party may allege that he did not execute a deed or other instrument, and further allege matter in avoidance of the same. It may be that, under the circumstances, the plaintiff did not remember or believe that he executed the release. But if he did, he might, nevertheless, further allege any matter in avoidance of it. Hence, the second exception cannot be sustained.
The facts going to prove the alleged negligence of the defendant, and bearing upon the fifth issue submitted, were not controverted. Accepting them as true, we cannot hesitate to hold that there was negligence as alleged. The mass of stone just above and near to the railroad track on which trains moved was in condition, as to situation, to slide or fall upon the track, was dangerous, was a standing menace, and was allowed to be so for several years, and the agents of the defendant knew the fact. The stone might, ought to, have been removed when the road was constructed. The fact that the defendant kept a “track-walker” whose duty it,was to examine and see, just after a *745train bad passed the dangerous point, whether rock had fallen or was about to fall, cannot excuse the defendant. It was its serious duty to avert such danger, because it was obvious, could be seen and ought to have been removed. It is not sufficient to be simply cautionary when a manifest danger exists that may and ought to be removed. Hence, the defendant was not entitled to have the first special instruction it asked the Court to give.
Nor was it entitled to have the second one asked and refused. There was no evidence to prove that the plaintiff knew of the dangerous condition of the stone that fell on the track and caused the disaster in which he suffered injury. Nor was this an ordinary hazard, certainly as to the plaintiff, of which he is presumed to take knowledge. He was a brakeman; he did service on trains that passed rapidly by the dangerous point at intervals, and the evidence went to prove that at his place of duty he might not observe the danger, as he would be “on a level with the rock.” The plaintiff was about his duty on the moving train; he was unconscious of the danger as the train approached it; he did not do anything to contribute to the injury he sustained or the negligence of the defendant that gave rise to it. In no aspect of the matter does it so appear.
Nor was the injury sustained by the plaintiff attributable at all, so far as appears, to the neglect of a fellow-servant. It is said the “track-man” was a fellow-servant and he failed to do his duty. It does not so appear. It appears it was the duty of the track-man to visit the dangerous place just before and just after trains passed the same. It does not appear that he did or did not. It may be that the weight of the freight train, and the jar occasioned by it, suddenly precipitated the fall of the stone. But, granting that the “track-man” failed to discharge his duty and to give notice, there was the greater neglect of the defendant, and the injury was occasioned by that neglect. The defend*746ant was bound to remove so great a danger. If it had done so at the first, as it did, at last, and after the disaster, the plaintiff had not suffered the injury complained of.
We are of opinion that there was evidence of mistake, surprise and undue advantage taken of the plaintiff, under such circumstances as ought to avoid the release relied upon by the defendant, if the allegations of the reply were true, as the jury found them to be. The release was executed within a few days after the plaintiff sustained the injuries, at the instance of the defendant through its agent, while he was suffering great bodily pain and mental anxiety occasioned by such injuries, when he was unable to comprehend the meaning and effects of the release. He was ignorant, unable to write, and did not understand or comprehend the purport of such instrument. The defendant owed him wages, and he believed, when he executed the release, that he was giving a receipt for a part of the sum due him for wages. The jury so find by their verdict in response to the pertinent issues submited to them, except in a single respect. The evidence tended to prove that the defendant’s agent at Hot Springs, within a few days after the plaintiff sustained the injury, sent him on its road to Salisbury, a distance of one hundred and fifty miles or more, where, at the office of the defendant, its agent took the release in question, paying as consideration therefor thirty dollars. The evidence also tended to show that the damages so sustained were greatly in excess of that sum. There was evidence tending to prove the substance of the allegations of the reply in respect to the release. It was in evidence for the defendant that its agent took the release. 'He testified that the release — its purpose — was explained to the plaintiff. It did not appear that the plaintiff had counsel or any friend to advise him other than the agent of the defendant.
Granting that there was no positive fraud on the part of the defendant or its agents (none was alleged), there was-*747evidence to prove, and the jury found, under appropriate instructions from the Court not objected to, that the plaintiff executed the release by mistake, occasioned by his ignorance, physical pain, mental anxiety and lack of capacity, under the circumstances, to understand or comprehend the nature and purpose of such release.
The Court of Equity will grant relief where only the party complaining makes mistake, when the facts and circumstances give rise to the presumption that there has been some undue influence, misapprehension, imposition, mental imbecility, surprise, or confidence abused. Mere ignorance, mere inadequacy of consideration, mere weakness of mind, mere mistake on the part of one party, will not entitle that party to relief. Bút it is otherwise when there is a combination of such things to prejudice the party. In such case, in good faith and fair dealing, the adverse party ought to see and know, and must be presumed to know, that the complaining party was not fit or in such mental condition as to bind himself by contract. A Court of Equity will interfere when called upon to relieve a party against his mistake, made under a combination of such adverse circumstances as certainly destroy his capacity to know the nature of the contract or engagement to which he becomes a party. Buffalow v. Buffalow, 2 Dev. & Bat. Eq., 241; Futrill v. Futrill, 5 Jones’ Eq., 61; Barnes v. Ward, Busb. Eq., 93; Story’s Eq. Jur., §§119, 120, 134, 251; Smith’s Man. Eq., 45.
As we have said, the plaintiff does not allege, in the reply, positive fraud of the defendant, nor mutual mistake, nor undue influence, nor simply weakness of understanding. He alleges such a combination of facts and circumstances, and produces evidence to prove the same, as show such mistake and surprise on his part as entitles him to have the release declared inoperative and void. So that the special instructions asked for, other than those particularly referred to above, have no material pertinency.
Judgment ^firmed.