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

• Decision Date: 01 May 1893
• Parties: ATCHISON, T. & S. F. R. CO. v. SHEAN et al.
• Court: Colorado Supreme Court

33 P. 108

18 Colo. 368

ATCHISON, T. & S. F. R. CO. v. SHEAN et al.

Supreme Court of Colorado

May 1, 1893

Appeal from district court, Arapahoe county.

Action by Moses D. Shean and others against the Atchison, Topeka &amp Santa Fe Railroad Company to recover damages for injuries causing death of plaintiffs' father and husband. Judgment was rendered for plaintiffs, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by GODDARD, J.:

The action is brought by Mary E. Shean, the wife, and in behalf of Moses, Josephine, and Mary Shean, the children, of Thomas Shean, deceased, to recover damages against the railroad company for wrongfully causing the death of said Thomas Shean. The facts are as follows: Thomas Shean was a passenger for hire from Kansas City, Mo., to San Francisco, Cal., on the appellant company's cars. On the 1st day of October 1887, the section of the train in which he was being carried arrived at La Junta, Colo., between 8 and 9 o'clock in the forenoon. La Junta is an eating station of the company and a point at which trains stop to allow passengers to take meals, and also at which trains are made up for the north and west. The train was being run in two sections between Kansas City and La Junta, Shean being on the section that arrived first. After stopping at the eating station, this section was switched upon a side track, the main track being between it and the station. While so standing, and about 40 minutes after its arrival, Shean started to go to the eating station for breakfast. While passing diagonally across the main track he was struck by the locomotive drawing the other section and killed. The testimony of witnesses as to the rate of speed this section of the train was running at the time varies from 6 to 10 miles an hour. It was also conflicting in regard to whether the bell was being rung at the time of the accident. The following specific interrogatories were submitted to the jury, and answered as follows: 'First. Do you find from the evidence that the deceased, Thomas Shean, after leaving the car, and before reaching the track where he was injured, listened or looked for an approaching train? Answer. No. Second. Do you find from the evidence that if the deceased, Thomas Shean, had looked, before going upon the track where he was injured, he could have seen the approaching train? Answer. Yes. Third. Do you find from the evidence that if deceased, Thomas Shean, had stopped and listened before going on the track, he could have heard the approaching train? Answer. No.' General verdict for plaintiffs for $5,000. Motion for new trial overruled, and judgment rendered for amount of verdict.

Charles E. Gast, Wells, Macon & Furman, and Rogers, Cuthbert & Ellis, for appellant.

Rogers & Shafroth, for appellees.

GODDARD, J., (after stating the facts.)

The ground mainly relied on in the argument before us, and the one we regard as controlling in this case, is whether, upon the evidence, the deceased at the time of the accident exercised such care as an ordinarily prudent man would exercise under like circumstances. In other words, was he guilty of such contributory negligence as would defeat a recovery? The fact is uncontroverted, as found by the jury in answers to interrogatories Nos. 1 and 2, that the deceased did not, on approaching the track where he was injured, look or listen for an approaching train, and that, if he had looked before going upon the track, he could have seen the approaching train; and the question is thereby presented whether the deceased, in his relation as a passenger, had the right to omit the precaution of looking for an approaching train, and, as the court below instructed the jury 'assume that the defendant must so regulate its trains that its tracks between the car he left and the eating station platform would be free from obstruction, and safe for him to pass over in going to and returning from the eating house; * * * that defendant is bound to exercise the same degree of care in providing for him a safe and convenient way and manner of access to and from the eating station * * * as in the transportation and carriage of him.' It is said by this court in Railroad Co. v. Hodgson, 31 P. 956, 18 Colo. ----: 'The appellant, a common carrier, owed a...