Atchison, T. & S.F.R. Co. v. Farrow

• Decision Date: 01 April 1883
• Citation: 6 Colo. 498
• Parties: THE ATCHISON, TOPEKA & SANTA FE R. R. CO. v. FARROW.
• Court: Colorado Supreme Court

6 Colo. 498

THE ATCHISON, TOPEKA & SANTA FE R. R. CO. v. FARROW.

Supreme Court of Colorado

April, 1883

Appeal from District Court of Pueblo County.

THE complaint in this case, filed in the district court of Pueblo county, alleges: 'That the plaintiff is the mother of one James F. Farrow, now deceased, and that at the time of the death of said James F. Farrow the plaintiff was, and now is, the only surviving parent of said deceased, and said deceased at the time of his death, and at all times prior thereto, was an unmarried man; and plaintiff further avers that said deceased was born in lawful wedlock.

'The defendant is a railroad corporation, organized under the laws of the then territory, now state, of Kansas, and is now, and at the time of the committing of the grievances hereinafter mentioned and complained of was, lawfully engaged in the business of running and operating a line of railroad from the town of Granada, in the county of Bent, state of Colorado, to the town of South Pueblo, in the county of Pueblo, state of Colorado, and at the time aforesaid the defendant was lawfully possessed of, and used and operated, divers side-tracks in the town last aforesaid.

'That on the 28th day of November, A. D. 1879, the said deceased James F. Farrow, was in the employ of defendant, at the said town of South Pueblo, in the capacity of brakeman and coupler of cars in and about the trains of defendant that were made up and distributed in its yards at said town, and at said time and place the defendant was under the orders of one George Doran, who was then and there the yard-master of defendant and in its employ, both at the said town of South Pueblo, as well as the city of Pueblo, in said county of Pueblo.

'Plaintiff further alleges that the said yard-master at the said town of South Pueblo, then and there on said 28th day of November, A. D. 1879, had the sole charge, management and control of the making up, switching and distribution of the cars and trains of the defendant in and about its main and side tracks, at the town last aforesaid, by authority of said defendant, and said yard-master was also then and there invested by defendant with full authority to employ and discharge switchmen or yard-brakemen, serving in the capacity as was said deceased as aforesaid, and the said deceased was bound to obey the orders and directions of said yard-master, as his superior officer, while so in the employ of the defendant.

'Plaintiff further alleges that on said 28th day of November, A. D 1879, while deceased was as aforesaid in the employ of defendant, and under the orders and authority of its said yard-master as aforesaid, he, the said deceased, at the town of South Pueblo, in said county of Pueblo, was then and there ordered by the said yard-master of defendant to go between certain cars of defendant's train that was being then distributed and made up at said last named town under the direction of said yard-master, and deceased was then and there further ordered by defendant, through and by its said yard-master, to uncouple certain of said cars on said train when he was so between said cars, and in obedience to the said orders and directions of defendant, by its yard-master the deceased did then and there go between said cars and attempt to uncouple the same; and plaintiff avers the fact to be, that said yard-master of defendant then and there, without giving the said deceased any opportunity or time whatever to uncouple said cars and come out from between the same, did then and there negligently, carelessly, and without the exercise of caution or warning to the deceased, signal the engineer of defendant's engine then and there attached to said train to back up the said train and put it in motion, which signal the said engineer then and there obeyed, and the said train was accordingly so rapidly, and to the deceased so unexpectedly, put in motion, that, before the deceased could, under the circumstances in which he was then placed, extricate or move himself from between said cars, he was knocked down between the same, and one of said cars immediately ran over his body, and thereby then and there causing the death of the deceased, who died almost instantly after his body was so run over by defendant's car.

'And plaintiff avers that the death of the deceased as aforesaid was solely caused by the negligence of defendant's yard-master, by so causing the said train as aforesaid to be improperly, negligently and prematurely put in motion and backed upon deceased, while deceased was lawfully between said cars, which fact said yard-master then and there well knew, and also before deceased had any opportunity whatever to uncouple said cars and escape from between the same; and plaintiff alleges that with all the knowledge which said yard-master then and there possessed concerning the position and danger of deceased and the ability which he could exert to extricate himself there from, no ordinary, prudent or competent yard-master would have signaled the said train to back up upon said deceased as did the said yard-master of defendant at the time, place and manner aforesaid; wherefore plaintiff alleges that the deceased did then and there die from the injuries received by him in consequence of being so run over by defendant's said car, and that the said injuries resulted from the negligence and unskilfulness of defendant's said yard-master in so causing the said train to be so moved and backed up.

'Plaintiff further alleges that she is, and for many years before the said death of deceased was, an aged, infirm and indigent person, without any property, means or income whatsoever, and wholly incapacitated from any manual labor for the said reasons, and for many years her said son, now deceased as aforesaid, provided her with the necessaries and comforts of life, and by his death she is now left destitute and with no means of procuring a livelihood, to the great damage and injury of plaintiff.

'Wherefore, plaintiff demands judgment against the defendant in the sum of five thousand dollars ($5,000), together with the costs of this action.'

A demurrer to the complaint was overruled, and afterwards the defendant filed the following answer:

'As to whether the plaintiff is the mother and only surviving parent of one James F. Farrow, deceased, and as to whether the said James F. Farrow was at the time of his death, and at all times prior thereto, an unmarried man, this defendant has not and cannot obtain sufficient knowledge or information upon which to base a belief.

'It denies that the said George Doran, mentioned in the complaint as having been this defendant's yard-master at the town of South Pueblo, had, on the 28th day of November, 1879, the sole charge, management or control of the making up, switching and distribution of cars in and about its main and side tracks at the place aforesaid; and denies further that he was then, or at any time before or after, invested by this defendant with full authority to employ or discharge switchmen or yard-brakemen in and about the said yard, and denies further that he had any authority whatever in that regard. The defendant admits, however, that the said George Doran was at the time and place aforesaid superior in grade of employment to the said deceased, and that the latter was bound to obey, in the due and usual course of his employment, the orders and directions of the said Doran.

'Defendant admits that the deceased, immediately before or at the time of his death, was engaged in the act of coupling or uncoupling cars at the place aforesaid, but denies that his death was solely or in any manner whatever, caused by the negligence or unskilfulness of this defendant, or of the said Doran, its yard-master; and denies particularly that the said Doran, without giving the said deceased any opportunity or time to come out from between the said cars, or without the exercise of caution or warning, did signal the engineer to put the said cars in motion, whereby the deceased was unable to extricate himself, and was knocked down between the cars as is alleged in the complaint. On the contrary, defendant says that the said Doran used due care and diligence in and about the switching,...