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

• Decision Date: 29 May 1893
• Citation: 33 P. 185,18 Colo. 477
• Parties: ATCHISON, T. & S. F. R. CO. v. HEADLAND.
• Court: Colorado Supreme Court

33 P. 185

18 Colo. 477

ATCHISON, T. & S. F. R. CO. v. HEADLAND.

Supreme Court of Colorado

May 29, 1893

Appeal from district court, El Paso county.

Action by Mary E. Headland against the Atchison, Topeka & Santa Fe Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by HAYT C.J.:

This action was brought under the statute by appellee, as plaintiff, to recover damages for the death of her unmarried son, alleged to have resulted from the negligence of the defendant. The trial resulted in a verdict and judgment in favor of plaintiff for $3,500. The case was submitted to the jury on the theory that the defendant had assumed towards the deceased the duties and obligations due from a common carrier to a passenger, and this forms the ground of the principal error relied upon in this court. Appellant contends that the deceased was not entitled to be considered as a passenger under the evidence. The evidence upon this point is practically without contradiction. From this it appears that on May 14, 1888, between the hours of 12 and 1 o'clock at night, one Walter Chubbeck had charge of a freight train upon defendant's road, which was about to start from the city of Pueblo, in this state, bound north; that this train consisted of 13 cars of freight, attached to the rear of which was a caboose. The deceased, a young man about 26 years of age, was a cripple with an artificial foot and leg. The conductor, who was first introduced as a witness by plaintiff, testified that just previous to the starting of the train from Pueblo he found Shipman on the front platform of the caboose. The deceased accosted him, saying that he was a cripple, and had formerly been a railroad man; that he had a brother living at Greenland, near the line of the road between Pueblo and Denver; and that, as he was disabled from doing any more train work, he wanted to go there, and make his living on a farm. He asked the conductor whether he ever showed favors to crippled railroad men. Chubbeck told him that this depended upon circumstances; that he sometimes did. The deceased then produced a letter showing that he had been a brakeman on another road for 10 or 11 months, and Chubbeck asked him why he did not apply to the Brakemen's Brotherhood for assistance. His reply was that 'he had not broke long enough, and that he could not get in.' Chubbeck, after examining the letter, told him that he could not carry him. The witness was afterwards asked this question: 'Was that all the conversation that took place between you? Answer. No, sir; he asked me if I could carry him, and I told him I could not.' Motion for a nonsuit having been interposed and denied at the conclusion of plaintiff's evidence, the conductor was recalled as a witness for the defendant. He was then asked: 'What did you tell him as to whether you would carry him? Answer. I told him that I could not do anything for him on the letter that it would be an impossibility for me to carry him; that the letter was too old.' After the conversation at the Pueblo station the conductor went up along the train, and took the numbers of the cars. When he reached the engine he found on the tender a fireman seeking employment. The regular fireman of the engine had consented to carry this man upon some claim advanced by the latter, and the conductor, finding that he was in the way of the head brakeman, sent this man back to ride in the caboose. The conductor did not return to the rear end of the train till it had left the station, and was well under way. He then found in the caboose, besides the fireman, two or three men traveling with stock on the train and the deceased. It does not appear that any of the occupants of the car were either provided with transportation, or that any fare was paid to or demanded by the conductor. The train proceeded to Colorado Springs, making but one stop between Pueblo and that point. This stop was made at Fountain, a small way station a short distance below Colorado Springs. The train arrived at Colorado Springs in safety. At this point the Denver, Texas & Gulf Railroad crosses the roadbed of appellant. The train upon which deceased was riding was stopped at this crossing, it being necessary to do some switching in the yards at Colorado Springs. The rear six cars of the train, with the caboose, were cut off just south of this crossing, and left standing upon the track. The evidence shows that at this point the grade declines to the south. Two of these cars were provided with air brakes, and the conductor, in person, set these brakes, and ordered the rear brakeman to set the others. This brakeman testified at the trial that at this time he noticed that the air brakes were not holding, but that he set the hand brakes upon three, or perhaps four, of the freight cars, and another witness testified to seeing him at work setting these brakes. At this point the stockmen and the conductor left the caboose, the deceased and the fireman remaining therein. There is some evidence that the latter were quarreling at the time. The engine, with the other cars, proceeded up the main track to Colorado Springs for the purpose of switching the stock cars on to a stub track. It took perhaps 30 or 40 minutes to do this switching, and then the train was backed down for the cars left south of the crossing. It was then found that these cars were not there. The brakes had in some way been loosened, and the cars had started down the track. The testimony further shows that these cars ran as far as the station at Fountain, where they came in collision with the engine of another train. The cars immediately in front of the caboose were loaded with combustibles, which were exploded as the result of this collision. Soon thereafter the mangled body of the deceased was found by the side of the track near the place of collision. What became of the fireman does not appear. He was not seen by any witness after the separation of the cars at the crossing near Colorado Springs, and diligent search failed to disclose any trace of him after that time. The theory of the defense was that in a moment of passion he loosened the brakes, and fled.

Charles E. Gast and Horace G. Lunt, for appellant.

William Harrison and T. A. McMorris, for appellee.

HAYT C.J., (after stating the facts.)

The statute upon which this judgment is sought to be upheld reads as follows: 'Whenever any person shall die from any injury resulting from or occasioned by the negligence unskillfulness, or criminal intent of any officer, agent, servant, or employe, whilst running, conducting, or managing any locomotive, car, or train of cars, or of any driver of any coach or other public conveyance, whilst in charge of the same as a driver, and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stagecoach or other public conveyance, the corporation, individual, or individuals in whose employ any such officer, agent, servant, employe, master, pilot, engineer, or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stagecoach, or other public conveyance, at the time any such injury is received, and resulting from or occasioned by defect or insufficiency above described, shall forfeit and pay for every person and passenger so injured the sum of not exceeding five thousand (5,000) dollars, and not less than three thousand (3,000) dollars, which may be sued for and recovered.' Section 1508, Mills' Ann. St. This section received the careful attention of this court in the case of Railway Co. v. Farrow, 6 Colo. 498. The opinion in that case contains a clear and logical analysis of the statute, and the construction there given it has since been followed without question in this state. It was held that the section might be divided, with reference to persons injured, into two parts,--the first giving the right of action to any person injured by the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or employe, etc.; the second furnishing a right of action where the death of a passenger resulted from a defect or insufficiency of a railroad locomotive, stagecoach, or other public conveyance. Under the foregoing division there is no evidence in this case to sanction a recovery under the first subdivision. The uncontradicted evidence shows that the brakes upon the cars left upon the track were properly set, and it is conclusively shown that if the machinery of the road had been in good order and condition the brakes would have been sufficient to have held the cars for many hours. It is not urged, nor do we think, considering the character of the train, that it was the duty of the defendant, under the circumstances, to leave a brakeman in charge of the cars left south of the Denver, Texas & Gulf crossing. In fact, negligence on the part of any officer, agent, servant, or employe of the defendant is not shown. As examination of the complaint, and a review of the trial in the court below, show clearly that the recovery was had upon the theory that...