Kirchgestner v. Denver & Rio Grande Western R.

WOLFE, Justice.

The appellant’s petition for rehearing is granted to allow us to consider on its merits the question of whether the lower court erred in refusing to instruct the jury that in order to avoid the release executed by the plaintiff, he must prove a mutual mistake of fact by clear and unequivocal evidence. As stated in our opinion, the appellant requested the court to instruct the jury that the plaintiff must prove mutual mistake by “clear and unequivocal evidence”, but the court refused the request and instead instructed that proof of a mutual mistake need appear only by a…