Colorado Cent. R. Co. v. Holmes

• Decision Date: 01 April 1880
• Citation: 5 Colo. 197
• Parties: THE COLORADO CENTRAL R. R. CO. v. HOLMES.
• Court: Colorado Supreme Court

5 Colo. 197

THE COLORADO CENTRAL R. R. CO. v. HOLMES.

Supreme Court of Colorado

April, 1880

Appeal from District Court of Arapahoe County.

CATHARINE HOLMES, the appellee, brought her action in the District Court against the appellant for personal injury sustained by her while walking on the track of appellant, and recovered judgment for $5,000. To reverse that judgment this appeal was prayed; the facts necessary to a proper understanding of the case are stated in the opinion.

Messrs H. M. & W. TELLER, and Mr. A. H. DE FRANCE, for appellant.

Messrs PATTERSON and CAMPBELL, for appellee.

STONE J.

In treating upon the right of redress for injuries caused by the negligence of another, Mr. Cooley, in his recent work upon Torts, says, p. 659: 'The first requisite in establishing negligence is to show the existence of the duty which it is supposed has not been performed. A duty may be general and owing to everybody, or it may be particular and owing to a single person only, by reason of his peculiar position. * * * But a duty owing to everybody can never become the foundation of an action until some individual is placed in a position which gives him particular occasion to insist on its performance; it then becomes a duty to him personally. The general duty of a railway company to run its trains with care, becomes a particular duty to no one until he is in position to have a right to complain of the neglect. The tramp who steals a ride cannot insist that it is a duty to him; neither can he when he makes a highway of the railway track and is injured by the train. * * * These are illustrations; but in every instance the complaining party must point out how the duty arose which is supposed to have been neglected. And this is the real reason why one cannot complain of an injury to which his own negligence has contributed; when it appears that but for his own fault the injury would not have occurred, it also appears that the duty to protect him did not rest upon others; for no one is under obligation to protect another against the consequences of his own misconduct or neglect.'

The general rule as to contributory negligence, which seems to be established by the authorities, is that if the party injured by the exercise of ordinary care under the circumstances, might have avoided the consequences of the defendant's negligence, but did not, the case is one of mutual fault, in which the law will neither cast all the consequences upon the defendant, nor will it attempt any apportionment thereof. This is the English rule, and it has been accepted by the courts in this country, with but few exceptions. Cooley on Torts, 674. The cases cited in support of this rule are very numerous, embracing most of the States in the Union, and the Supreme Court of the United States.

The later Illinois cases have departed from the rule, to the extent of allowing a right of action to depend upon the relative degrees of negligence to be imputed to plaintiff and defendant respectively; that is to say, that a plaintiff whose concurrent negligence has contributed to the injury, may recover where the negligence of the defendant is gross, and in comparison to which that of the plaintiff is slight. Ill. Cent. R. R. v. Hammer, 85 Ill. 526; Kansas is perhaps the only other State that seems to follow the Illinois doctrine. U. P. R. R. v. Rollins, 5 Kan. 167; Cooley on Torts, p. 678.

That there is a difficulty in measuring, in every case, degrees of negligence in order to constitute legal definitions, even as they were divided by the Roman civil law, into slight, ordinary and gross, is sufficiently obvious, and the attempt to fix and usefully apply these degrees in practice, has been criticised by the Supreme Court of the United States. Steamboat New World v. King, 16 How. 474. But this difficulty falls little short of impossibility when it is sought to establish and measure relative degrees of the negligence of plaintiff and defendant involving acts of different parties differently circumstanced, reviewing causes and effects from different standpoints, and that perhaps in view of impending danger, and with different means of avoidance, and all these complications of causes and effects and comparisons of unlike acts, and the negations of care which constitute different degrees of negligence, to be nicely measured, adjusted and apportioned by a jury of totally different minds. The scales of justice can neither separate and weigh the atoms of care and negligence as ingredients of human conduct, like a chemical analysis, nor determine their unknown quantities by algebraic equation.

The simplest rule applicable, deduced from the great mass of authorities, English and American, is stated quite clearly by Wightman, J., in Tuft v. Warman, 5 C. B. N. S. 584, in these words: 'It appears to us that the proper question for the jury in this case, and indeed in all others of the like kind, is whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened. In the first case the plaintiff would be entitled to recover, in the latter not; as but for his own fault the misfortune would not have happened; mere negligence or want of ordinary care and caution would not, however, disentitle him to recover, unless it were such that, but for that negligence or want of ordinary care and caution, the misfortune could not have happened; nor, if the defendant might, by the exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff.'

The same rule, substantially, was adopted by our own court in the case of the Western Union Telegraph Company v. Eyser, 2 Col. 141. Such, too, is the doctrine of the Supreme Court of the United States. Railroad Company v. Jones, 5 Otto 442.

Applying the rule to the case at bar, the questions to be determined are:

First. Was the injury occasioned entirely by the negligence or improper conduct of the defendant?

Second. Did the negligence or want of ordinary care and caution on the part of the plaintiff so far contribute to produce the injury that otherwise the misfortune would not have happened?

Third. Might the defendant, by the exercise of care on the part of its servants, have avoided the consequences of the neglect or carelessness of the plaintiff?

The evidence shows that the plaintiff, a laboring woman about fifty years of age, living near the track of the defendant's railway in the suburbs of Denver, started in the day time to go to another part of the town to work. Her course lay along and across the line of the said railway. It was about the time of the arrival of a morning freight train. She knew the train came in at that hour. She had frequently been that way at the same time of day on previous occasions. She reached the track at a point whence she could see along it in the direction of approaching trains a distance of a quarter of a mile. She went upon the railway where there was no public crossing, and where there were several side-tracks diverging and running parallel with and near the main track, into the defendants' depot and trainyard. She turned her back upon the approaching train, and proceeded to walk along upon the railroad track. She heard the whistle, turned and saw the train coming; left the main track upon...