Chicago, R.I. & P. Ry. Co. v. Rhodes

• Decision Date: 13 February 1912
• Citation: 21 Colo.App. 229,121 P. 769
• Parties: CHICAGO, R.I. & P. RY. CO. v. RHODES
• Court: Colorado Court of Appeals

121 P. 769

21 Colo.App. 229

CHICAGO, R.I. & P. RY. CO. v. RHODES

Court of Appeals of Colorado

February 13, 1912

Appeal from District Court, City and County of Denver.

Action by Charles B. Rhodes against the Chicago, Rock Island &amp Pacific Railway Company. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals. Reversed and remanded.

J.C. Helm, C.W. Waterman, and William A Jackson (M.A. Low, of counsel), for appellant.

Thos H. Hardcastle, R.W. McCrillis, and Arthur Ponsford, for appellee.

WALLING J.

Appellee brought suit against the appellant upon four separate alleged causes of action to recover damages for the killing of three cattle and the injuring of a cow by trains of the appellant in the vicinity of Deer Trail, Colo. The first two counts of the complaint charged, respectively, the killing of a steer and a cow, both belonging to the plaintiff; the steer having been killed on January 16, 1902, and the cow on August 4, 1904. The third count was based on the killing of a cow of one Spillane on October 24, 1904. Spillane subsequently, to wit, on January 6, 1905, assigned to plaintiff his claim against the defendant for the killing of the cow. Appellee concedes that the evidence was insufficient to justify a verdict for the plaintiff on the fourth count, and special reference to the allegations of that count is unnecessary. Each of the first three counts contained allegations to the general effect that the damage therein complained of was the result of negligent operation of one of defendant's trains; and there were statements in each of the second and third counts which were apparently intended to state a case within the provisions of chapter 1 of the Session Laws of 1902, sometimes called the "Railroad Fencing Act."

Probably it should be noticed that, after the cause was transferred into this court, a motion to remand it to the Supreme Court, under section 6 of the act creating this court, was filed by the appellant; the stated ground being that the determination of the appeal necessarily involves the construction of provisions of the federal and state Constitutions. Examination of the briefs on file indicates that it was at one time the supposition of counsel on both sides that the decision of the case required investigation of the constitutionality of the fence act of 1902. The motion to remand, however, was not pressed in any way, and at the oral argument was definitely abandoned; counsel on each side taking the position that the act of 1902 is not involved in the decision of this cause. It was the position of counsel for the appellant, in argument, that, since the Supreme Court has decided that the fence act mentioned was void in toto (Denver, etc., Railway Co. v. Moss, 50 Colo. 282, 115 P. 696), it never had existence in legal contemplation; while appellee's counsel insisted that the district court wholly disregarded the act, as being either invalid or inapplicable in the circumstances of the case, so that the case was actually tried and submitted to the jury on the theory alone of common-law negligence. For the purposes of this review, the statements of counsel on both sides in that particular may be accepted as correct, since, in either aspect, it is clearly our duty to proceed to a final decision of the cause.

All of the evidence at the trial was produced by plaintiff; the defendant offering no proof. After plaintiff rested his case, a motion was made on behalf of the defendant that the jury be instructed to return a verdict in its favor on all four counts. That motion was denied, and the case was submitted to the jury upon a series of instructions as to the law applicable to the case. Only one of the instructions given by the court is questioned here. The jury returned a verdict for the entire amount claimed under all four causes of action--$135. Motion for a new trial was made by the defendant. Upon the hearing of that motion, the court required the plaintiff to remit the sum of $30, and, upon his electing to do so, overruled the motion, and ordered judgment to be entered upon the verdict for $105. It seems to be agreed that the $30 remitted included the amount claimed in the fourth count, to wit, $25, and $5 excessive damages under the third count. Errors have been assigned on the appeal from the judgment, based upon the exceptions taken by the appellant to the overruling of its motions for a directed verdict and for a new trial, the entry of the judgment, the giving of the instruction numbered 7, as well as to various other adverse rulings of the court during the progress of the trial.

The animals were killed near a station on the Kansas division of the Union Pacific Railway, known as Deer Trail, 56 miles east of Denver. No witness saw any of the animals struck by a train, and none saw the train by which any of them was killed. The steer and cow mentioned in the first and second causes of action were found lying dead near the railroad track by sectionmen in the employ of the Union Pacific Company, when the men went to their work in the morning. There were some indications leading to the conclusion, in each instance, that the animal was struck by a train during the night before it was found.

No witness saw either of plaintiff's animals on or near the track, or at any stated time prior to the killing of the same. The evidence tended to show that the railroad tracks and property generally belonged to the Union Pacific Company, which also employed the sectionmen, and that the latter company, and also the defendant, operated their trains over the tracks between Denver and Limon; both companies running regular trains past the station of Deer Trail and the points where the various animals were killed. It appeared from the testimony of the witness Spillane that for seven years prior to 1904, and during that year, the defendant ran one east-bound and one west-bound passenger train every night over those tracks; and that night trains were also operated over them by the Union Pacific Company during the same period. The evidence was generally meager and unsatisfactory, and much is left to inference and conjecture.

The steer, which was the subject of the first cause of action, was found, on the morning of January 17, 1902, some 20 or 25 feet north of the railroad track, by one of the sectionmen in the employ of the Union Pacific Company, named Graff, and lying near by there were five other cattle, four of them dead, and one very badly hurt. The five cattle last mentioned belonged to a Mr. Epler, who was also a witness at the trial. It cannot be determined from the record how near the animals were to each other when they were found. The most definite statement in that particular was made by the plaintiff, who, after stating that he saw his dead steer near the railroad on the morning of January 17, 1902, further testified: "Q. Were there any other cattle there? A. Yes. Q. What cattle? A. Five of Mr. Epler's. *** Q. How were they lying when you saw them? A. Well, I think several of them were on the left-hand side of the track; I don't remember whether there were any on the right-hand side or not. Q. Were they all dead then? A. I think one of them showed some signs of life. If I remember rightly, the sectionmen killed him. That was not my steer."

The sectionman, Graff, said that the animals were all killed at the same time and by the same train, but this was evidently a mere supposition on his part; no facts appearing to support any such conclusion. It was stated by counsel for the plaintiff that the cattle were killed in the night, and it was impossible to prove the facts by anybody that saw the occurrence, and that statement is probably borne out by the testimony of all witnesses who had anything to say about that particular event. Epler testified, as a witness for the plaintiff, that the defendant's claim agent had made a settlement with him, in June, 1904, in which he (Epler) was paid $200 for his cattle killed prior to that time, and in that connection Epler was permitted to testify, against the objections of counsel for the defendant, as follows: "Q. Now, was this particular accident on the 16th of January, 1902, referred to between you and the agent? A. Yes, sir. Q. Were they included in the amount paid? A. Yes, sir. Q. And you actually received pay for them? A. Yes, sir." The record does not show that objection was made to the form of the questions; but repeated protests were made against Epler's entire examination, by the defendant's objections and motions to strike, on the grounds that the testimony was irrelevant and immaterial and incompetent to prove that plaintiff's steer was killed by the defendant. The admission of this testimony of the witness Epler is urged as one of the grounds for the reversal of the judgment. At the time of introducing the questioned testimony, counsel for plaintiff stated his purpose in so doing as follows: "But the question now is, What train killed those cattle? They were all killed at one time by one train and in one bunch, and all found together. Now, I propose to show this defendant company not only paid for part of those cattle, belonging to another owner, it is true, but their agents paid it in settlement and admitted the accident. I propose to follow the payment up by his admission that they were paying for those cattle killed by that train. The cattle were killed in the night, and it is impossible to prove it by anybody that saw it."

On behalf of the appellant, it is urged, first, that the payment for the Epler cattle by defendant's claim agent was in the nature of a compromise of a disputed claim, and, consequently, that the facts of the settlement were not admissible in evidence for any purpose; and, further, that the...