Chicago, R.I. & P.R. Co. v. Crisman

• Decision Date: 02 October 1893
• Citation: 34 P. 286,19 Colo. 30
• Court: Colorado Supreme Court
• Parties: CHICAGO, R.I. & P. R. CO. v. CRISMAN.

34 P. 286

19 Colo. 30

CHICAGO, R.I. & P. R. CO. v. CRISMAN.

Supreme Court of Colorado

October 2, 1893

Error to district court, Arapahoe county.

Action by Albert Crisman against the Chicago, Rock Island & Pacific Railroad Company.Judgment for plaintiff, and defendant brings error.Reversed.

This suit was brought to recover damages for the destruction of plaintiff's wagon and the killing of his horses by being struck by an engine of a passenger train belonging to plaintiff in error while coming east on the Kansas Pacific Railroad at a point at or about the intersection of Market and Forty-Fourth streets, in Denver.A judgment was recovered in the district court of Arapahoe county for the value of the team and wagon.

William Harrison, A. E. Pattison, and Thomas H Edsall, for plaintiff in error.

Browne & Putnam, for defendant in error.

GODDARD J.

It appears from the record that at the point of collision there were four tracks.The one furthest from the city is designated 'the transfer track.'This departs from the main track at a point about 750 feet easterly from the crossing, and crosses the highway at a point 367 feet from where the accident occurred.The second track is a siding which crosses the highway at a distance of 40 feet from the main track The third track is also a siding, crossing the highway about 15 feet from the main track.At the time of the accident cars were standing on either side of the highway upon all of these tracks except the main track, and so obstructed the view of the main track that it was difficult for a person driving on the highway to see a train approaching from the east after the transfer track had been passed, and while between the transfer track and the main track.The wagon destroyed was a covered milk wagon, loaded with milk cans.On either side of the wagon there were sliding doors, with a window in front, which hung upon hinges, and could be opened and hooked up at the top of the cover.The doors and window were open at the time of the accident.One Nuney, the servant of defendant in error, who was driving the team at the time of the accident, had been driving over the road for four days previous to the accident and had passed over the railroad crossing at least once each day during that time, at about the same hour the accident occurred.There is a serious conflict in the evidence as to whether the whistle was blown before, or the bell was being sounded at, the time of the accident; also as to the manner in which Nuney approached the crossing; and, the jury being the exclusive judges of the credibility of the witnesses and of the weight of the evidence introduced upon these questions of fact, their finding thereon cannot be disturbed unless error intervened in the instructions.

Error is assigned upon the giving of instruction No. 3, wherein the court attempts to define the duty of a railway company in approaching a crossing, and is as follows: 'The jury are instructed that if you find from the evidence that the view of the railroad track over which the defendant's train was approaching at the time of the alleged accident was obstructed by box freight cars on the side tracks described in the evidence, so as to make the view of the approaching train impossible or difficult, then the omission of the company to give signals of its approaching train, if you find such omission from the evidence, was negligence on the part of the defendant so as to make it liable.'This instruction is erroneous in declaring the company liable upon failure to give such signals, regardless of the fact whether such failure was the proximate cause of the accident.The jury might, under this declaration of law, if they found the signals were not given, find against the company, whether the accident was in any measure caused by such failure or not; and also in disregard of any question of contributory negligence on the part of the plaintiff.'Failure to ring bell or blow whistle at crossing, though required by law, will not render the company liable unless that be the proximate cause of the injury, and there be no such negligence by the plaintiff as will prevent his recovery.'Beyel v. Railway Co., 34 W.Va. 538, 12 S.E. 532;Artz v. Railroad Co., 34 Iowa 153;Railway Co. v. Jones, 76 Ill. 311.

Further error is predicated upon the refusal of the court to give the following instruction, as prayed for: 'If Nuney's view of the railroad track, in the direction from which the train was approaching, was obstructed to such an extent as to prevent him from seeing the approaching train from the wagon then he was bound to use greater care than would have been required if the view had been unobstructed, and should, if necessary, have stopped the team and listened for approaching trains before driving on the crossing;' and in giving it with the following modification: 'Provided you find the defendants were not guilty of gross negligence, such as failing to ring the bell orgive any notice of their approach, or running their train at the rate of twenty or thirty miles per hour.'The degree of care to be used by a traveler in crossing a railroad is measured by the conditions surrounding the place of crossing; and where, by reason of obstructions, his view of the...