5 Colo. 197 (Colo. 1880), Colorado Cent. R. Co. v. Holmes

Citation:5 Colo. 197
Opinion Judge:STONE, J.
Attorney:Messrs. H. M. & W. TELLER, and Mr. A. H. DE FRANCE, for appellant. Messrs. PATTERSON and CAMPBELL, for appellee.
Case Date:April 01, 1880
Court:Supreme Court of Colorado

Page 197

5 Colo. 197 (Colo. 1880)




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

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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.


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,

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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...

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