Carlock v. Denver & R. G. R. Co.

• Decision Date: 07 July 1913
• Citation: 133 P. 1103,55 Colo. 146
• Parties: CARLOCK v. DENVER & R. G. R. CO.
• Court: Colorado Supreme Court

133 P. 1103

55 Colo. 146

CARLOCK v. DENVER & R. G. R. CO.

Supreme Court of Colorado

July 7, 1913

Error to District Court, Denver County; Harry C. Riddle, Judge.

Action by William T. Carlock against the Denver & Rio Grande Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

John W. Helbig, of Denver, for plaintiff in error.

E. N Clark and George P. Steele, both of Denver, for defendant in error.

GABBERT J.

Plaintiff in error commenced an action against defendant in error to recover damages for a personal injury alleged to have been caused by the negligence of the defendant, or negligence for which it was responsible. The complaint was in two counts. The first count, so far as material to consider, charged that plaintiff was employed by defendant as head brakeman, and that in the discharge of his duties he was assisting in making up a train; that in making it up part of the cars were placed on the main track, about 75 feet from its intersection with a siding, at which point there was an unblocked frog that the track had a descending grade towards this point that the locomotive was temporarily detached from the cars, which were held in place by hand brakes; that he went between the cars to make a hose coupling; that while so engaged another brakeman in the employ of the defendant released the hand brakes which set the cars in motion; that one of the appliances used in connection with the air brakes caught in his coat and held him captive, with the result that he was dragged to the intersection of the main track and a siding, where his foot was caught in an unblocked frog, and he was thrown down and his left leg run over by the wheels of the moving cars, and so severely injured that it was necessary to amputate it near the hip joint. It was further charged in this count as follows: 'And plaintiff further alleges that he did not, at any time prior to receiving his injuries herein mentioned, know or have notice whatever that the railroad frog or space between the rails aforesaid was unblocked, or in a defective condition, as aforesaid.' By the second count it is sufficient to state that by apt averments it is made to appear that plaintiff's injury was caused by the negligence of the rear brakeman, a coemployé, in releasing the brakes which set the cars in motion, whereby plaintiff was thrown down and his leg crushed. It is not averred in this count that written notice of the time, place, and cause of plaintiff's injury was given the defendant within 60 days of the date he was injured. To each of the counts a general demurrer was interposed and sustained. Plaintiff elected to stand by his complaint, and his action was dismissed.

The first count, as stated by counsel for plaintiff, is founded upon defendant's common-law liability in maintaining an unblocked frog; and the second count charges the injury, under the Employers' Liability Act of 1901 (Session Laws 1901, p. 161), as having been caused by the negligence of a fellow servant, and the question presented is whether a cause of action is stated in either of these counts. The laws of this state require railroad companies to block what is generally known in railroad parlance as frogs, and provides that a failure to do so shall be prima facie proof of negligence in actions for injuries occasioned by being caught in unblocked frogs. Session Laws 1897, p. 258; R. S. 1908, §§ 5507, 5508. The first count charges negligence in this respect; but does it appear that this negligence was the proximate cause of plaintiff's injury? This is the important question, for the reason that merely charging negligence is not sufficient, as, in addition, it must appear, in order to render the defendant liable for such negligence, that it was the proximate cause of the injury for which a recovery is sought. In other words, in a case for personal injury based on failure of the defendant to obey a statute, the violation of the statute must be shown to have been the dominant cause of the injury; otherwise, a cause of action is not stated. A., T. & S. F. Ry. Co. v. Walz, 40 Kan. 433, 19 P. 787; Stoneman v. Atlantic & Pacific R. R. Co., 58 Mo. 503.

The brakeman who released the hand brakes, whereby the cars between which plaintiff was coupling the hose were set in motion, was a fellow servant, and as the count under consideration is based on common-law liability the defendant is not liable for his negligence, if it appears from the facts averred that it was the dominating cause of plaintiff's injury. 'Proximate cause' has been variously defined. Perhaps no definition could be given which would serve as a test in all cases, as from the several definitions they appear to have been framed as applicable to the facts or peculiar circumstances of the case under consideration. Proximate cause does not necessarily mean closeness in the way of time in which certain things occur, but, rather, that which is most proximate in the order of responsible causation, or that which stands next in causation to the effect, not necessarily in time or place, but in causal relation. Bouvier; Traveler's Ins. Co. v. Murray, 16 Colo. 296, 26 P. 774, 25 Am.St.Rep. 267. It is quite clear that but for the negligence of the brakeman plaintiff's foot would not have caught in the unblocked frog; but it is also clear from the averments of the complaint that, had it not been for the unblocked frog, injury would not have resulted to the plaintiff from the negligent act of the brakeman.

It is true, as contended by counsel for defendant, that, when plaintiff went between the cars to couple the hose, they were at rest. The unblocked frog was 75 feet distant, and, had that situation remained unchanged, plaintiff would not have been injured. The situation was changed by the act of the brakeman in releasing the brakes, but the failure of the defendant to comply with the statute requiring frogs to be blocked was negligence as a matter of law. The statute so declares, and it is so held by the cases on the subject construing statutes of similar import to ours. The act of the brakeman was negligence, but antecedent to this was the alleged negligence of the defendant. When there are several agencies or causes of an injury, the question is, which was the efficient, dominating cause. In determining this question, as applied to the facts under consideration, the rule is that where an injury is the result of the combined negligence of the defendant and the negligent act of a third person, for whose act neither plaintiff nor defendant is responsible, the defendant is liable when the injury would not have occurred except for his negligence. Colo. Mortgage & I. Co. v. Rees, 21 Colo. 435, 42 P. 42. In Shearman & Redfield on Negligence, § 10, it is said: 'Negligence may, however, be the proximate cause of an injury of which it is not the sole or immediate cause. If the defendant's negligence concurred with some other event (other than the plaintiff's fault) to produce the plaintiff's injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the near-cause in the order of time.' According to the averments of the first count, plaintiff would not have been injured if the frog had been blocked; so that, notwithstanding the fact that the brakeman was negligent in releasing the brakes, the dominant cause of plaintiff's injury was the antecedent negligence of the defendant in not complying with the statute. In other words, when the injury of an employé by a coemploý ploye would not have happened except for the negligence of the common employer, the latter is responsible for the injury. Tanner v. Harper, 32 Colo. 156, 75 P. 404.

Counsel for defendant urge that the defendant could not reasonably have anticipated that its failure to comply with the statute would result in injury to plaintiff in the circumstances narrated in the first...