Catlett v. Colorado & S. Ry. Co.

• Decision Date: 02 February 1914
• Court: Colorado Supreme Court
• Parties: CATLETT et ux. v. COLORADO & S. RY. CO.

139 P. 14

56 Colo. 463

CATLETT et ux. v. COLORADO & S. RY. CO.

Supreme Court of Colorado

February 2, 1914

Error to District Court, Larimer County; James Owen, Judge.

Action by James H. Catlett and wife against the Colorado & Southern Railway Company. From a judgment for the defendant plaintiffs bring error. Reversed.

O. L Dines, of Denver, and L. D. Thomason, of Ft. Collins, for plaintiffs in error.

E. E. Whitted and Thomas R. Woodrow, both of Denver, for defendant in error.

SCOTT J.

This is an action by the plaintiff in error to recover in damages for the loss of their son, William F. Catlett, who was run over and killed by the train of defendant in error, on the evening of October 19, 1909. At the close of plaintiff's testimony the court directed a verdict for the defendant, and dismissed the action.

The accident occurred within the limits of the city of Loveland. Defendant's tracks run through the city in a northerly and southerly direction. The train had stopped at the depot and was proceeding northward, intending to take on coal at the company's coal chutes, located at a point about 2,400 feet north of the depot. The depot grounds are bounded on the north by Fifth street, which the track crosses at approximately right angles, as it does Sixth, Seventh, Eighth, and Tenth streets north of Fifth street, and following in the order named. There is no street crossing between Eighth and Tenth streets, and the distance between these streets is about 600 feet. The length of the other blocks is about 300 feet. At a point about 200 feet south of Tenth street a spur connects with the main track, and runs in an easterly direction to the sugar factory. This is known as the 'sugar road.' There were approximately 350 persons working at the sugar factory at the time, and about 50 of these lived on the west side of defendant's tracks. These persons were, and had been for some years, accustomed to walk on a path along the 'sugar road' to and from their homes, and which path crossed the defendant's tracks at the frog where the sugar road joined the main track. It was at this point that Catlett was killed, while lying prostrate between the rails of the main line, and over which rails the train passed.

The allegations of the complaint as to negligence, as the case was finally tried, were as follows: 'The said defendant company, by and through its servants and employés, on the night of October 19, 1909, with wanton and willful negligence, drove and ran its locomotive and train of cars upon and over the body of the said William F. Catlett, while he was lying prostrate and helpless upon the track, as hereinbefore stated, thereby severing his body in twain and producing almost instant death. That the engineer or fireman, in charge of said locomotive, by the exercise of slight care could have seen the said William F. Catlett upon the railroad track in time to stop the said locomotive and train and avert his death. That at the time said William Catlett was so struck and killed, the said locomotive and train were running at an unreasonable and dangerous rate of speed, to wit, at the rate of 20 miles per hour.' The defendant's answer denied negligence, and pleaded contributory negligence on the part of the deceased.

The only eyewitness to the accident was the fireman on the engine of the train which struck Catlett. The tracks from the depot to the coal chutes were straight, slightly upgrade, and with an entirely unobstructed view between these points. The time of the accident was between 6:40 and 7 o'clock in the evening. The train was known as the regular 6:40 train. It was the time of day when the employés of the sugar factory, who lived on the west side of defendant's tracks, were accustomed to cross the tracks along the path before mentioned, in returning to their homes after the day's work.

Just how or why Catlett came to be lying prostrate on the tracks is unknown. Witness Osborne, an employé of the sugar factory, and who lived on the west side of the defendant's tracks, testified that he was returning to his home, and that he overtook Catlett, who was walking along the path on the sugar road in the direction of his home, at a point where Tenth street crosses the sugar track, and about 300 feet from where the sugar road connects with the main line, and that within 10 or 15 minutes thereafter he saw Catlett's dead body. He says: 'I was on my way home from the sugar factory where I worked, and I passed Will Catlett at the Tenth street crossing. He spoke to me. He said, 'Hello,' and I said, 'Hello.' I said to him, 'If you are going with me you will have to hurry.' He made no reply to that. I saw nothing out of the way with him. He could walk straight and talk straight, and did not exhibit any indication of intoxication. If he had been intoxicated to any appreciable extent I would have observed it. I did not discover any evidence of intoxication.' There is no testimony in the record showing that any other person saw him that day before the accident, though he was living with his parents at their home west of the tracks.

The absence of testimony on the part of the plaintiff in this regard may be explained by the following proceedings as disclosed by the record:

'Q. What sort of a headlight was carried by that train, or was at that time? A. An electric headlight.

'The Court: They admit that in their answer; admit the train, admit running over the man. The only question to be determined is what the facts and circumstances were in regard to his being on the track, and what degree of care they exercised.

'Mr. Whitted: All of this is immaterial. It is admitted by the pleadings that this man had fallen upon the track, and was lying there at the time; how he got there is irrelevant and immaterial.

'The Court: In the statement made this morning, they admitted those matters.

'Mr. Whitted: We don't make any point on that.'

It will be seen from this that the defendant proceeded with the trial of the case upon this theory, and upon which its counsel insisted; that is to say, it was sufficient for plaintiff to show that Catlett was on the track in his then helpless condition, and hence how he got there was irrelevant and immaterial, and that the question was solely one of the alleged negligence of defendant company. Apparently acting upon this theory of the defendant, which seems to have been adopted by the trial court, the plaintiffs offered no further evidence upon this point.

The engine of the train was equipped with an electric headlight. As to the power of this headlight, and as applied to the track in question, the witness Osborne testified in substance: 'I could see from the depot to the coal chutes by the headlight, four or five blocks. Prior to the time Catlett was killed I had observed the distance in which objects could be seen on the track by aid of the headlight. I observed it in crossing the track, the light shone so bright. An object on the track as big as a man could be seen, but whether you could distinguish it was a man or not I don't know. I could distinguish an object much smaller than a man.'

Another witness testified that on the night of the accident it was quite light for three or four blocks, and that if a person was looking along the track he could see an object the size of the body of a man for a distance of 600 or 800 feet.

Martindale, another witness, testified: 'When I first got down there I looked up the track to see what had stopped them. I could see anything crossing the track between there and the coal chutes--I could not see a bug, but I could see a cat or a dog; anything of that kind could have been seen between the engine and the coal chutes.' This distance was about 900 feet.

The testimony shows that there were dwellings on both sides of the track at the point where Catlett was killed.

The defendant's fireman on the train at the time of the accident, testified in part as follows:

'On the night Catlett was killed, the traveling engineer, George Gray, was on the engine with the engineer and myself. I could not say whether the engineer and Mr. Gray were holding any conversation at the time we pulled out from the depot in Loveland. Immediately upon pulling out from the depot in Loveland I put in fire. It is one of my duties, in passing through the limits of a town or city to watch the street crossings. When we left the depot in Loveland, I got down to put in the fire and watched the first crossing, which would be Fifth street crossing, then after I got over that, I put in another fire, and got over the next crossing, which would be Sixth street, then I lit a torch, and was going to take coal up there and had a coal ticket in my hatband, and when I went to get the ticket it blew away, and just then I looked and saw a body on the track, but I could not tell what it was for a second or two until I got within 75 or 100 feet of it, when I recognized it was a man by a hat lying inside the track. Q. So you were at the Sixth street crossing when you first observed he was on the track? A. I could not say what crossing. Q. It was the second crossing after you left the depot going north, was it not? A. I was over the second crossing. Q. Was it the third crossing then? A. I could not say what crossing it was. Q. Do you mean to say that it was not true that after you got over the second crossing you felt for your coal ticket in your hatband, that you looked up and saw the body on the track, and could not tell what it was for a second or two? A. Yes, I might have went over another crossing or two before that time. Q. How many blocks away were you when you discovered it to be a man's hat? A. About 75 or 100 feet I should judge. Q. You say you kept a lookout for the crossings? A. I did in a way.

...