Barr v. Colorado Springs & I. Ry. Co.

• Decision Date: 05 March 1917
• Docket Number: 8759.
• Citation: 168 P. 263,63 Colo. 556
• Court: Colorado Supreme Court
• Parties: BARR v. COLORADO SPRINGS & I. RY. CO.

168 P. 263

63 Colo. 556

BARR v. COLORADO SPRINGS & I. RY. CO.

No. 8759.

Supreme Court of Colorado, En Banc.

March 5, 1917

Rehearing Denied Nov. 5, 1917.

Error to District Court, El Paso County; W. S. Morris, Judge.

Action by William M. Barr against the Colorado Springs & Interurban Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

White C.J., and Bailey, J., dissenting.

Samuel H. Kinsley and John A. Carruthers, both of Colorado Springs for plaintiff in error.

Chinn &amp Strickler, of Colorado Springs, for defendant in error.

HILL J.

The plaintiff in error seeks to recover damages for personal injuries sustained upon account of being struck by a street car of the defendant company, when attempting to cross its tracks as a crossing in Colorado City. The verdict was in favor of the defendant.

The evidence is conflicting, for which reason we cannot agree with the contention of plaintiff that it is insufficient to support the verdict. For the same reason, we cannot subscribe to the contention of the defendant that a nonsuit should have been granted. There is testimony tending to show that before the plaintiff attempted to cross the street car track with his team and carriage (in which were several tourists) he substantially complied with the railroad rule of 'stop, look, and listen'; that upon failing to see or hear a car coming, he proceeded and was not aware of any danger until the car was so close that it was impossible to avoid the collision; that upon account of the physical conditions, the motorman either saw, or by the exercise of ordinary care and diligence could have seen, him in time to have avoided the accident; that the street car was coming from the west, going east toward Colorado Springs that while the track was clear from quite a distance east, plaintiff could not see very far west at the point where he approached the crossing upon account of trees which interfered with the view; that the motorman could have seen the horses before the plaintiff could have seen the street car; that the plaintiff was going north; that when he first looked for street cars he was approaching the Denver & Rio Grande railroad track, which, at that point, runs parallel with the street railway's tracks; that when he crossed the Rio Grande tracks he looked both ways, but saw nothing; that he then jogged his horses along until they approached the street car tracks, when he pulled up until his horses almost stopped; that during this period he repeatedly looked both ways and saw nothing; that just as the team was getting on the track and when their front feet were on the track, he heard this car coming and commenced slashing the horses, but that it was too late to avoid the accident, which resulted in the loss of one of his arms, etc.; that when he first noticed the street car approaching, it was about 200 feet from him; that it was then running about 20 miles per hour; that he heard no gong or signal, and there is testimony of other witnesses that none was given. There is also testimony concerning the car's equipment, the time necessary within which it could be stopped, etc., after the motorman could have seen the vehicle on the track, etc. This testimony presents a case wherein an instruction concerning the last clear chance doctrine is proper. Kansas P. Ry. Co. v. Cranmer, 4 Colo. 524; Denver & Berkley P. R. T. Co. v. Dwyer, 20 Colo. 132, 36 P. 1106; Hector M. Co. v. Robertson, 22 Colo. 491, 45 P. 406; D. & R. G. R. R. Co. v. Buffehr, 30 Colo. 27, 69 P. 582; Philbin v. Denver C. T. Co., 36 Colo. 331, 85 P. 630; Nichols v. C., B. & Q. R. R. Co., 44 Colo. 501, 98 P. 808; Denver City T. Co. v. Wright, 47 Colo. 366, 107 P. 1074; Montgomery v. Colo. Springs Int. Ry. Co., 50 Colo. 210, 114 P. 659; Catlett v. Colo. & So. Ry. Co., 56 Colo. 463, 139 P. 14.

By instruction No. 7 the jury were told that it was the duty of the motorman to exercise reasonable care, etc., and if they found etc., that the plaintiff was, at the time and place in question, in a position of immediate peril of being struck by the car, etc., and that the motorman saw him, or by the exercise of reasonable care could have seen him, in such position of danger, if any, in time to have slackened the speed of said car, or to have stopped the same in the exercise of reasonable care and thus avoided the accident, but negligently failed to do so, and if they further found, etc., that by reason of the carelessness or negligent act of said motorman, if they found him to have been careless or negligent, the vehicle in which the plaintiff was riding was struck and the plaintiff was thrown out of the same and thereby was injured, that then their verdict should be for the plaintiff, even though they found, etc., that the plaintiff negligently placed himself in a dangerous proximity to the car, etc.

It is agreed that this instruction correctly states the law applicable to this case under the last clear chance doctrine. Had other instructions not been given in conflict with it, the plaintiff would have had a fair trial of this phase of his case under the law applicable thereto. By instruction No. 4 the jury were told that they could not find a verdict for plaintiff unless they should find from a preponderance or the great weight of the testimony that the injuries of which the plaintiff complains were caused solely by some one or more of the negligent acts of the defendant alleged in the complaint.

By instruction No. 6 they were told that he could not recover unless they found and believed that the injuries of plaintiff were caused solely and proximately by the negligence of the defendant. Instruction No. 10 reads:

'You are instructed that the rule of law is that where both parties to an action are negligent neither can recover. You are instructed that if the plaintiff herein might, by the exercise of ordinary care for his own safety, have avoided the accident to himself herein involved and that he failed to exercise such ordinary, care, then you should return a verdict for the defendant, even though you should further find and believe from the evidence that the defendant was also guilty of negligence at the time of the accident.'

Instruction No. 14 reads:

'You are instructed that you cannot find a verdict for the plaintiff if you shall find and believe from a preponderance of the evidence that the plaintiff might, by the exercise of ordinary care for his own safety, have avoided the accident to himself herein involved.'

The substance of this instruction is repeated in instructions Nos. 15, 16, and 17, but in these latter there is an attempt to apply the plaintiff's lack of care with the defendant's version of the case pertaining to plaintiff's contributory negligence, outside of the last clear chance doctrine; whether for this reason they would not be in conflict with instruction No. 7 need not be determined. The same contention pertaining to instructions 4 and 6 can be likewise disposed of. Instructions 10 and 14 declare but abstract principles of law, which,...