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

• Decision Date: 12 September 1932
• Docket Number: 12727.
• Citation: 91 Colo. 255,14 P.2d 495
• Parties: CHICAGO, R.I. & P. RY. CO. v. CLINE.
• Court: Colorado Supreme Court

14 P.2d 495

91 Colo. 255

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

No. 12727.

Supreme Court of Colorado

September 12, 1932

In Department.

Error to District Court, El Paso County; Arthur Cornforth, Judge.

Action by John Cline against the Chicago, Rock Island & Pacific Railway Company. To review a judgment in favor of plaintiff defendant brings error.

Reversed and remanded.

William V. Hodges, D. Edgar Wilson, and James L Goree, all of Denver, for plaintiff in error.

Chinn &amp Strickler, of Colorado Springs, for defendant in error.

BUTLER J.

In an action under the Federal Employers' Liability Act (45 USCA §§ 51-59), John Cline obtained a judgment against the Chicago, Rock Island & Pacific Railway Company. The company seeks a reversal of the judgment.

The testimony, in important particulars, was in conflict. That in behalf of Cline tended to show the following facts: At the time of the accident (November 23 1929), Cline and W. E. Kaufman, the track foreman, and Clisby Kaufman, the foreman's son, were patrolling the track on a gasoline track car. Ordinarily the car was propelled at twenty-five or thirty miles an hour, but at the time of the accident it was going at about ten or twelve miles an hour. Immediately prior to the time of the accident the car was going up a grade, and snow on the rails caused the wheels to spin and slip and the car to lose traction. The foreman ordered Cline to jump off and get gravel to put under the wheels of the car to prevent its stalling on the grade. Cline thereupon jumped off the car, with shovel in hand, to carry out his orders. At that place the bank sloped down from the track to a drainage ditch, which was about 2 1/4 feet lower than the top of the cross-ties. In the ditch there was a patch of ice, covered with a thin film of snow. The car was going faster than Cline had supposed it was, and he was hurled down the bank with such force that he slipped on the ice and was thrown to the ground, breaking his leg. The foreman had patrolled this section of the track for twelve or thirteen years, and was familiar with the slope and the drainage ditch, whereas Cline went to work only three days Before the accident. Cline knew nothing of the presence of the ice. Cline knew that the company had a rule prohibiting employees from jumping off a running car.

1. The alleged negligence of the company consisted, not in the company's failing to remove the snow and ice, but in the foreman's ordering Cline to jump from the car, considering the rate of speed at which it was going, the slope of the bank, and the presence of ice and snow. We cannot say that, as a matter of law, the company was not chargeable with negligence. In the circumstances, the question of negligence was for the jury to determine.

2. The company contends that Cline assumed the risk, and that, for that reason, the trial court should have ordered a nonsuit. An employee assumes the ordinary risks of his employment, and also those extraordinary risks that are fully known to him, or are obvious, and that are appreciated by him. But where the employee does not know, or does not appreciate, the danger, and it is not obvious, he does not assume the risk. Denver & Salt Lake Ry. Co. v. Lombardi, 87 Colo. 311, 287 P. 648. In view of all the circumstances, we cannot say that Cline, as a matter of law, assumed the risk.

The trial court did not err in denying the company's motion for a nonsuit.

3. Counsel for the company admit--and it is the law--that in actions under the Federal Employers' Liability Act contributory negligence does not bar the action, but merely affects the amount recoverable. They contend, however, that Cline was contributorily negligent as a matter of law, and that the court erred in leaving that question to the jury.

The evidence in behalf of the company tended to show that when Cline got off the car it had come to a stop; that he walked ahead for some 60 feet trying to get gravel or sand from the bank near the track; that it...