Colorado Cent. R. Co. v. Martin

• Decision Date: 31 October 1884
• Citation: 4 P. 1118,7 Colo. 592
• Parties: COLORADO CENT. R. CO. v. MARTIN.
• Court: Colorado Supreme Court

4 P. 1118

7 Colo. 592

COLORADO CENT. R. CO. v. MARTIN.

Supreme Court of Colorado

October 31, 1884

Appeal from the district court of Arapahoe county.

Teller & Orahood, for appellant.

Browne & Putnam, for appellee.

BECK C.J.

It appears from the transcript of the record that there have been two trials of this cause in the court below, the first resulting in a verdict for the plaintiff of $7,000, and the second in a verdict of $2,000. Counsel for the appellee, who was plaintiff below, insist that no error intervened on the second trial, and cite authorities to sustain the rulings and instructions of the district court, but say in the concluding paragraph of their brief:

'The verdict of the jury was so small that if the court can grant a new trial without violating any of the known principles of the law governing the case, we will not complain.'

The disposition of this court is to sustain the judgments of nisi prius courts when it can be done without violating the known and settled principles of the law governing the cases and questions presented for review. In the present case, the judgment can only be sustained on the theory that the defendant was guilty of negligence in failing to provide proper and safe means of conveying guns upon its trains for their defense against train-robbers, and that the plaintiff was not guilty of such contributory negligence as tended to produce the injury complained of. One of the well-known and well-settled principles of the law upon the subject of negligence is that when the plaintiff so far contributed to the disaster by his own negligence, or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened, he is not entitled to recover. The jury was informed of this rule, but it is apparent, upon a review of the evidence, that it was ignored by them in their deliberations.

We are of opinion that the verdict is not supported by the evidence and also that the court committed two errors upon the trial. The first error was in instructing the jury, as a matter of law arising upon the facts proven, that the defendant was undoubtedly guilty of negligence. The other error was in the refusal to instruct the jury, as prayed by defendant's counsel, 'that under the evidence in this case, in view of the law of the case, the plaintiff is not entitled to recover, and your verdict should be for the defendant.' The effect of the instructions given was to declare the defendant guilty of negligence, as a matter of law, and to leave it for the jury to say whether, under all the facts and circumstances of the case, the plaintiff was guilty of such negligence as contributed to the injuries received by him, or whether he acted as a man of ordinary prudence in remaining in the service of the defendant, in view of the negligence of the latter after the same became known to the plaintiff. These instructions were certainly misleading, when applied to the facts disclosed by the proofs of both parties to the controversy.

The material and uncontradicted facts are that an attack by train-robbers had been threatened upon defendant's train on the portion of its railroad extending from Denver, Colorado, to Cheyenne, Wyoming territory, which lies north of Fort Collins, in the state of Colorado. Trains had been attacked upon the Union Pacific Railroad shortly before, and the officers of the defendant company, having private information that an attack of its trains was contemplated, deemed it prudent to provide arms and ammunition for their defense, which was done about September 1, 1878. Prior to that date the train officers carried their own arms. The arms and ammunition provided by the railroad company were three breech-loading shot-guns and 100 cartridges charged with buck-shot. These guns were placed by the superintendent of the defendant company in charge of the train baggage-master, there being but one passenger train on the road, which train made the round trip from Denver to Cheyenne and back each day. The instructions of the superintendent were to keep the guns unloaded and wrapped up in a quilt or blanket, which was provided, except when passing over that portion of the road upon which the attack was apprehended. After passing Fort Collins, outward bound, the guns were to be unpacked and charged ready for use, and after reaching or passing the same point on the return the cartridges were to be withdrawn and the guns again wrapped up in the blanket. Upon reaching Golden, (the headquarters of the company,) the package was to be delivered to the station baggage-master, to keep until the return of the train from Denver next morning, when he was to return the package to the train. Two conductors, the plaintiff and one Davis, ran the train upon this route, upon alternate days, each taking command of his train at Golden in the morning, upon its return from Denver. Both conductors knew of these regulations, and had frequently seen them carried out. The work of inserting the cartridges, and of afterwards withdrawing them, was easily and quickly done, and it does not appear that any accident occurred in carrying or handling the guns upon the train.

The injury complained of occurred at Golden, on the twenty-sixth day of September, 1878. The immediate cause of the accident was the failure of the train baggage-master, on the twenty-fifth day of September, 1878, to withdraw the charges from the guns upon the return trip from Cheyenne, and before delivering the package to the station baggage-master at Golden. The plaintiff was in charge of this train on the latter day as conductor. As usual, he spent the night in Denver, and after leaving the train next morning upon reaching Golden, that Conductor Davis might make his regular trip thereon, one of the guns was accidentally discharged while being put on board the train by the station baggage-master, the charge taking effect in the body of the plaintiff, and seriously injuring him. The guns were in the same condition at the time of the accident as when delivered to the station baggage-master the evening previous, all being rolled up in the blanket.

Respecting the duties and authority of the conductors of this train, the testimony is that it is the duty of the conductor to take charge of the train and everything on board from the time it leaves the depot until it arrives at its destination. All tools and other things carried for the use of the train, all treasure-boxes and property, are in charge of the conductor and all the employes on board are subject to his orders. In case of an attack upon the train he would be in command of its defense and have control of the arms. These are the affirmative facts disclosed by the evidence which we deem pertinent to the controlling questions presented by the record. The plaintiff testified that he had received no instructions concerning the guns, but admitted that the train baggage-master was subject to his orders, and that, in case of an attack on his train, he, the plaintiff, would have had charge of the guns and control of the defense. He admitted that he had never inquired whether the charges were removed from the guns before being placed in the care of the station baggage-master at Golden or not, and did not know whether they were being handled at that point in a loaded or unloaded condition. He made no inquiry whether the guns were loaded or not, on the twenty-fifth day of...