Brady v. Florence & C. C. R. Co.

• Decision Date: 06 April 1908
• Citation: 98 P. 321,44 Colo. 283
• Parties: BRADY v. FLORENCE & C. C. R. CO.
• Court: Colorado Supreme Court

98 P. 321

44 Colo. 283

BRADY v. FLORENCE & C. C. R. CO.

Supreme Court of Colorado, En Banc.

April 6, 1908

Rehearing Denied Nov. 16, 1908.

Error to District Court, Teller County; W. P. Seeds, Judge.

Death action by Nora Brady against the Florence & Cripple Creek Railroad Company. There was a directed verdict for defendant and plaintiff brings error. Reversed.

This action was brought under what is known as the 'Co-employés liability act of 1893,' Laws 1893, p 129, c. 77. Plaintiff's husband, John Brady, was employed by defendant on one of its suburban trains in the Cripple Creek district. The complaint in substance charges that without negligence on his part, the said Brady met his death through the negligence of a conductor and engineer operating another of defendant's trains. At about 5:30 p. m. on the 15th of July, 1899, defendant's train No. 37, upon which Brady was braking, headed in on the south leg of the 'Y' at Cripple Creek Station, and stopped on a sharp curve of between 25~ and 30~. Another train, No. 38, was waiting on the main line at the station for the purpose of taking one or two coaches from the rear end of No. 37. The custom of so doing had for a long time previous been in force, and deceased was aware of this custom. It became necessary, of course, to uncouple the coaches so to be removed from the rest of train 37, and also to separate or uncouple the connecting air hose, which Brady proceeded to do. In accomplishing the latter act he stepped from the platform to the ground, and entered between the cars on the inside of the curve. In the meantime train No. 38 had steamed to the switch, and was backing upon the 'Y' to connect with the cars to be removed. And while Brady was under the platform, endeavoring to uncouple the air hose, the engineer in charge of 38 backed into the rear of 37, causing a sufficient movement of the latter train to catch Brady and inflict upon him the injuries from which he died a few hours later. The contact of the rear coach on 38 with the last coach on 37 was unexpected and with considerable force. Immediately after such contact Brady partly rose up, and fell backward exclaiming: 'My God! What did you back up until I told you to for?' The cause was tried to a jury, but upon the close of plaintiff's testimony the court directed a verdict in favor of defendant. To review the judgment entered upon this verdict the present writ of error is prosecuted. The section of the statute under which the action is brought reads inter alia as follows: 'Section 1. Where * * * personal injury is caused to an employé, who is himself in the exercise of due care and diligence at the time; * * * (3) by reason of the negligence of any person in the service of the employer who has the charge or control of any switch, signal, locomotive engine or train upon a railroad--the employé, or in case the injury results in death, the parties entitled by law to sue and recover for such damages, shall have the same right of compensation and remedy against the employer, as if the employé had not been an employé of or in the service of the employer or engaged in his or its works.' The bill of exceptions contains the following: 'Be it remembered that on the 4th day of February, A. D. 1903, that being one of the juridical days * * * said cause came on to be heard before a jury; that on the trial of said cause on said day the plaintiff and defendant to maintain the issues joined on their respective parts, introduced and offered before said court and jury the following oral and documentary evidence,' etc. It shows that plaintiff then proceeded to offer her testimony, and at the close thereof is the following recital: 'And thereupon the plaintiff rested her case.' And immediately following are the directed verdict and the judgment pronounced thereon. All other necessary or material matters sufficiently appear in the opinion.

J. J. McFeely and John H. Reddin, for plaintiff in error.

Henry M. Blackmer and Schuyler & Schuyler, for defendant in error.

HELM, J. (after stating the facts as above).

A preliminary objection to the present review is urged upon the ground that there is no certificate of the trial judge that the bill of exceptions contains all the evidence introduced upon the trial. It is true that the bill does not expressly state nor does the judge expressly certify that all of the evidence introduced is so incorporated. But Spangler v. Green, 21 Colo. 505, 42 P. 674, 52 Am.St.Rep 259, is, we think, decisive upon this question. Under the ruling in that case the language employed in the present bill of exceptions is sufficient in this particular. At the conclusion of plaintiff's testimony the jurors were on motion directed to return a verdict for defendant. They were not given an opportunity to exercise their volition or consider the evidence. The main questions, therefore, to be determined by us are: Was there no evidence then before the trial court upon which the jury might reasonably have found negligence on the part of the engineer operating train No. 38? Or did the evidence of plaintiff herself so conclusively show contributory negligence by Brady as to justify that court in taking the case upon this ground from the jury?

There is evidence strongly tending to show that no bell was rung or whistle blown or other signal given by the engineer in charge of No. 38 before backing into No. 37. There is also evidence tending strongly to show that the trains came together with considerable violence--as one witness describes it, 'with a sudden jerk,' which threw her violently about the car platform till she was caught by a friend who had grasped one of the brakes. The suddenness and violence of the contact were certainly sufficient to catch Brady and crush him to death. The engineer of No. 38 knew that No. 37 had but a moment before headed upon the 'Y,' and that it was necessary, not only to uncouple the cars to be taken off, but also to uncouple the air brake or air hose connecting them with the remainder of the train. And, inasmuch as such uncoupling of the air brake necessarily required the brakeman or some other employé to go between the cars, the engineer should have exercised more caution in making the connection. There was certainly sufficient evidence to require the submission of this branch of the case to the jury.

But the position most strenuously urged on behalf of defendant in error is that contributory negligence on the part of Brady was so fully extablished by plaintiff's evidence that the court below was justified, on this account alone, in directing the verdict. There is evidence to the effect that only when a member of defendant's mechanical department was not present did it become the duty of the brakeman upon No. 37 to uncouple the air brake or hose between the cars to be removed and those remaining; but it is clear that on this occasion no member of the mechanical department was present attempting to perform or ready to perform this duty. There is testimony tending to show that a member of that department was in the vicinity; but the same testimony also tends strongly to show that he was in charge of the 'Y' switch about 150 feet away, controlling the movements of the two trains, and, if upon this evidence the cause had been submitted to the jury, and that body had found that Brady, when he went under the cars, was discharging a duty devolved upon him as brakeman, we would not disturb such finding. But it is insisted that Brady was negligent in regard to the method employed by him for performing this duty. Such negligence consisting in uncoupling the air...