Colorado Midland Ry. Co. v. Brady

• Decision Date: 06 April 1908
• Citation: 101 P. 62,45 Colo. 203
• Parties: COLORADO MIDLAND RY. CO. v. BRADY.
• Court: Colorado Supreme Court

101 P. 62

45 Colo. 203

COLORADO MIDLAND RY. CO. v. BRADY.

Supreme Court of Colorado

April 6, 1908

Rehearing Denied April 5, 1909.

Appeal from District Court, El Paso County; Louis W. Cunningham Judge.

Action by John Brady against the Colorado Midland Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Rogers, Cuthbert & Ellis and Lewis B. Johnson, for appellant.

Thos J. O'Donnell, John M. Harnan, and Dan B. Carey, for appellee.

STEELE C.J.

The plaintiff, while engaged in the service of the defendant as a switchman, on the 18th day of July, 1899, received an injury which necessitated the amputation of his right leg below the knee. The testimony shows that, at the time plaintiff was injured, he was engaged in attempting to couple two cars loaded with coal on the coal trestle of the defendant in its yards at Colorado City; that the trestle is elevated about 10 feet above the ground; that that portion of the trestle track in front of the coal binds is planked, and the remaining portion, about two-thirds of the length, is unplanked; that one of the cars which plaintiff was attempting to couple was attached to a train consisting of a switch engine and several cars of coal which were at the time being backed upon the trestle; that plaintiff failed in his first attempt to make the coupling, owing to a difference in the height of the drawbars; that, while engaged in attempting to make the coupling, the train of cars was moving slowly along and plaintiff walked along the trestle in front of the foremost car, and that, while so walking and attempting to make the coupling, he stepped into a space between the planking and the first tie beyond, and fell; that his right leg was caught in the space; and that the cars, which were still moving, ran over his leg and crushed it. Other facts material to the decision will be stated in the course of the opinion. The plaintiff claims that the defendant was negligent in not having the trestle track planked throughout its entire length. The defendant denies that it was negligent in not having the trestle so planked, and insists that the plaintiff assumed the risk of receiving an injury such as he sustained, because he knew, or by the exercise of ordinary care should have known, that the trestle was unplanked, and also that, in the performance of his duty as switchman or brakeman, he was guilty of negligence contributing to his injury. The jury returned a verdict in favor of the plaintiff in the sum of $7,000, and the defendant has appealed.

The court erred, it is said, in submitting the case to the jury because it was not shown that the defendant was guilty of negligence; because the plaintiff had assumed the risk of an injury such as he received; because the plaintiff was guilty of negligence contributing to his injury. Although error is predicated upon certain relings of the court and the refusal of the court to give certain instructions, and the giving of certain instructions, counsel mainly rely upon the propositions that the defendant was not negligent and that the plaintiff assumed the risk. The witnesses for the defendant testified that the track was planked in front of the coal bins, not for the purpose of affording protection to the employés, but for the purpose of preventing coal from falling to the ground, and that a walk on the south side and outside the track was provided for the employés. It was shown that the coal-bin trestles on many of the railroads, principally in the West, were planked as the one on which plaintiff was engaged was planked. And because no higher degree of care was exercised by other roads than was exercised by the defendant, and because the trestle here was built in accordance with the general custom and usage, and is up to the ordinary and usual standard, defendant insists that, by submitting the case to the jury, the jury was permitted to invent a scheme of trestle of its own and determine the relative merits of the invention and of those trestles in general use and generally approved by railroad men. But a railroad company is not relieved of its obligation to furnish a reasonably safe place by showing what other railroads have furnished, and the fact that open trestles are used on other railroads constitutes no defense to an action of this kind, if, as a fact, the court cannot declare as a matter of law that the place furnished is reasonably safe. The question is not determined by showing that other railroads have been maintained in the same condition as the defendant's trestle, but it is the province of the jury to determine under all the circumstances of the case whether the defendant has or has not been guilty of negligence. 'Negligence in a particular case is generally a matter for the jury to determine, and it is always so when the measure of duty is ordinary and reasonable care.' Williams v. Sleepy Hollow Min. Co., 37 Colo. 62, 86 P. 337, 7 L.R.A. (N. S.) 1170; Rimmer v. Wilson, 42 Colo. 180, 93 P. 1110. And even though the facts are not disputed, but are such that different minds might honestly draw different conclusions from them, the case must be left to the jury for its determination. So here some persons might conclude that, in the exercise of ordinary diligence to provide a reasonably safe place for its employés, the defendant was not guilty of negligence in failing to plank between the rails of the track on the trestle while other persons would regard the failure to plank the entire portion of the trestle an act of negligence, and that a very slight degree of care would prompt the officers of the company to plank the track. And when it is considered that to plank the track involved but slight expense, and would not in the slightest degree interfere with the maintenance and operation of the road, and that there is no necessity for leaving the track in such a condition, we cannot say as a matter of law that the company was not negligent, and that the case should have been taken from the jury. Where the facts are not in dispute, and there can be but one opinion as to their effect, the question is one of law. Griffith v. Denver Consolidated Tramway Co., 14 Colo.App. 504, 61 P. 46; Farrier v. Colo. Springs Rapid Transit Ry. Co. (decided at this term) 95 P. 294; Liutz v. Denver City Tramway Co. (also decided at this term) 95 P. 600; Gilbert v. Burlington, etc., Ry. Co., 128 F. 529, 63 C.C.A. 27. Indeed, it would be extremely difficult to sustain a verdict for the defendant if based upon the ground that the defendant was not guilty of negligence.

Upon the question of the assumption of risk, the court instructed the jury fairly and fully. No objection was made nor exception saved by the defendant to the instructions given upon this subject. The instructions declare it to be the law that where an employé has or might by the exercise of due care have knowledge of defects or imperfections, and continues in his master's service without objection, he cannot recover for injury caused by such imperfections; that the employé is presumed to have taken notice of all risks and dangers open to observation that it is his duty to use reasonable care to examine his surroundings; that if the employé voluntarily continues in the service of his master with knowledge or means of knowledge equal to that of his master, and continues in the service without...