Behrens v. Kansas Pac. Ry. Co.

• Decision Date: 01 December 1880
• Citation: 5 Colo. 400
• Parties: BEHRENS v. KANSAS PACIFIC RAILWAY CO.
• Court: Colorado Supreme Court

5 Colo. 400

BEHRENS v. KANSAS PACIFIC RAILWAY CO.

Supreme Court of Colorado

December, 1880

Error to District Court of Arapahoe County.

THE facts are sufficiently stated in the opinion.

Messrs STALLCUP & LUTHE, for plaintiff in error.

Mr WILLARD TELLER, for defendant in error.

BECK J.

The plaintiff in error brought his action in the district court to recover damages for injuries sustained by being struck by one of the defendant's engines while attempting to cross the railroad in the company's track-yard in the city of Denver. The plaintiff was in the employ of the defendant, in its track-yard, as a repair hand, and had been so employed about six months when the injuries were received. On the day of the accident he, with six or eight other men, was employed in the yard, in constructing a coal-switch at the upper end of the yard, under the direction of one Adam White, as foreman. About ten o'clock in the forenoon plaintiff and others were ordered by the foreman to carry some blocks of wood from the south to the north side of the track, at a point about one thousand feet east of the company's depot. An engine was then, and had been for some time previous thereto, engaged in switching cars in the yard, and was passing up and down the track quite frequently. Plaintiff, without taking the precaution to look along the track to see if the engine was approaching, and without listening for its approach, picked up a block of wood, lying from six to eight feet from the track, placed it upon his left shoulder, and, in attempting to cross the track, was struck by the engine. The block was six or seven feet long twelve inches wide, and about six inches thick. Owing to the size and shape of this block, and the position in which it was placed upon the shoulder, it obstructed the plaintiff's view along the track toward the depot as he faced the track. The engine came from the direction of the depot with a train of cars attached, and was running at the rate of about ten miles per hour. The usual rate of speed allowed in the yard was about six miles per hour. It was customary to ring the bell when passing, a squad of men on the track, but on this occasion no signal was given. The track was straight and almost level from where the men were at work to the depot, a distance of about one thousand feet, and the engine could have been seen the whole distance if plaintiff had looked for it. The engine and train, running at the speed of ten miles per hour, could have been heard that morning a distance of half a mile. The plaintiff neither saw nor heard the train until he was struck, although his eyesight and hearing were both good.

Upon the conclusion of the testimony on part of the plaintiff at the trial, a motion to nonsuit him was sustained by the court.

The main question to be considered is, whether the plaintiff was entitled to have had his case submitted to a jury, upon the facts and circumstances detailed by him and his witnesses. For the purpose of this inquiry, we assume the facts to be as sworn to by these witnesses.

Counsel for plaintiff claim that the questions of defendant's negligence, and of the supposed contributory negligence of the plaintiff, are questions of fact, depending upon inferences to be deduced from a variety of circumstances, in regard to which there is room for a fair difference of opinion between intelligent and upright men, for which reasons they contend that these questions should have been submitted to the jury. In this connection they cite the following rules of law, viz.: That, as a general rule, the question of negligence is a question of fact, and not of law. When the facts are undisputed, the question of negligence is not necessarily one of law. These legal propositions are supported by authority, but like all other correct legal propositions, they can only have a controlling effect in cases where they are rendered applicable by the state of facts disclosed by the evidence; and from a careful examination and consideration of the testimony in this case, we are of opinion that the first proposition, viz.: that the questions of negligence involved depend upon inferences to be deduced from a variety or circumstances, in regard to which there is room for a fair difference of opinion between intelligent and upright men, cannot be sustained.

In the numerous cases to which the court has been referred by the counsel of the respective parties, no case goes to the extent of holding, as matter of law, that a recovery may be had, where the injury party, knowing the dangers of his position, failed to take any precautions to protect himself from injury. The doctrine of all the cases is, that if a plaintiff so circumstanced might have avoided the injury by the exercise of ordinary care, he cannot recover, although the defendant was negligent. The general rule is, that to authorize a recovery for damages occasioned by the negligence of another, the plaintiff must have exercised that reasonable degree of care to avoid the injury which an ordinarily prudent person would have exercised under like circumstances.

In this case the plaintiff was engaged in an employment fraught with danger. He was crossing and re-crossing a railroad track, upon which an engine was frequently passing up and down, switching cars. There were no obstructions to prevent the plaintiff from seeing the engine in ample time to have kept out of its way, and he might have heard the noise of the engine and the cars approaching before they came near enough to have endangered him. Through mere inattention and carelessness he neither saw nor heard them. Without either looking along the track, or listening for the approach of the engine, he shouldered his block of wood and stepped upon the track directly in front of it. Neither the order to carry the blocks, nor the nature of the employment gave him a right-of-way as against the company's engines and cars; the nature of his employment affords no excuse for his reckless conduct. While it was the duty of the engineer to have rung the bell, as a signal to the workmen that the engine was coming, it was the duty of the latter to have been watchful and upon their guard against surprise. Failing to exercise any precaution whatever, under circumstances where the exercise of ordinary and reasonable prudence would have saved the plaintiff from harm, in the absence of testimony that the injury was willfully or wantonly inflicted, the negligence of the defendant will not warrant a recovery. Sherman & Redfield on Negligence, Secs. 25-42; Gonzales v. N. Y. & Harlem R. R. Co. 38 N.Y. 440; Kelly v. Hendrie, 26 Mich. 255; Dickey and Wife v. Maine Tel. Co. 43 Me. 492; Brown v. European & N. A. Rwy. Co. 58 Me. 384; Prideaux and Wife & The City of Mineral Point, 43 Wis. 524.

In actions of this character, it is incumbent upon the plaintiff to make out a prima facie case in his favor, showing that the damages claimed by him resulted from the negligence of the defendant. And where it affirmatively appears from his own evidence that the want of due prudence upon his part was the proximate cause of the injury complained of, it becomes the duty of the court, upon a motion made for nonsuit, to decide as a question of law, that the action cannot be maintained. In Ernst v. Hudson River R. R. Co. 35 N.Y. 41, it was said that a nonsuit should always be granted where the proof is so clear as to warrant the assumption in good faith, that if the question were submitted to the jury, it would find that the culpable negligence of the plaintiff contributed to the injury.

We are referred to page 47 of this opinion as announcing a contrary doctrine. On the page we find the following proposition. 'What constitutes negligence in a particular case, is generally a question for the jury, and not for the court, because negligence is want of ordinary care.' This proposition is credited to the opinion in North Pa. R. R. Co. v. Hillman, 49 Pa. St. 60, in regard to which the New York court observes: 'These authorities are not in conflict with those which hold that in certain cases the courts rule the question as one of law, as where the evidence so clearly shows the want of prudence and discretion that there can be nothing for the jury to pass upon.'

In Barton v. St. Louis & Iron Mt. R. R. Co. 52 Mo. p. 258, this subject is considered, and the rule laid down by that court to determine when the question is one of law for the court, or of fact for the jury, is thus stated: 'Whether it is a question for the court or the jury must be determined by the facts of the particular case. Negligence is in all cases, in a certain sense, a question of fact for the jury; that is, it is for the jury to determine whether the facts bearing upon the question exist or not. But when the facts are undisputed, or are so clearly proved as to admit of no doubt, it is the duty of the court to apply the law without submitting the question to the jury. This involves no invasion of the province of the jury, nor any infringement of their legitimate functions, no more than when the court passes upon a demurrer to the evidence, or on motions for new trials, upon the ground of the want of any evidence to sustain the verdict of a jury.'

Counsel for plaintiff in error quote from the opinion in Detroit & Mil. R. R. Co. v. Van Steinberg, 17 Mich. p. 122, the following sentence: 'It is a mistake, therefore, to say, as is sometimes said, that when the facts are undisputed, the question of negligence is necessarily one of law.' The next sentence is: 'This is generally true only of that class of cases where a party has failed in the performance of a clear legal duty.'

Upon another page of the same opinion, it is said: 'There are nevertheless, cases in which it has been held proper...