Colorado & S. Ry. Co. v. Western Light & Power Co.

• Citation: 73 Colo. 107,214 P. 30
• Decision Date: 05 March 1923
• Docket Number: 10076.
• Parties: COLORADO & S. RY. CO. v. WESTERN LIGHT & POWER CO.
• Court: Colorado Supreme Court

214 P. 30

73 Colo. 107

COLORADO & S. RY. CO. v. WESTERN LIGHT & POWER CO.

No. 10076.

Supreme Court of Colorado, En Banc.

March 5, 1923

Rehearing Denied April 2, 1923.

Error to District Court, Boulder County; Neil F. Graham, Judge.

Action by the Western Light & Power Company against the Colorado &amp Southern Railway Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

E. E. Whitted, J. L. Rice, and J. Q. Dier, all of Denver, for plaintiff in error.

Paul W Lee and George H. Shaw, both of Ft. Collins, for defendant in error.

CAMPBELL J.

The Western Light & Power Company, having been compelled to pay a joint judgment of $10,000 rendered against it and the Colorado & Southern Railway Company by the district court of Boulder county in an action by Edward Hoyle against both of them, wherein the complaint charged each of them with separate acts of negligence which resulted in a collision of the railway company's coal train with the power company's street car at the intersection of their tracks in Boulder, Colo., and caused the death of Hoyle's wife and daughter, who were passengers in the street car at the time, thereupon brought the present action against the railway company to recover indemnity in the amount paid in satisfaction of the joint judgment and, in a separate count, or cause, of action of the complaint, for the destruction of its street car. In a trial before a jury there was a general verdict for the plaintiff on both causes of action, and the judgment upon this verdict is brought here for review by the defendant.

The theory of the plaintiff power company is that, though the unreversed Hoyle judgment is conclusive that each of the defendants was guilty of negligence that contributed to the accident, yet, as between themselves, there was not, and upon that record there could not have been, a determination as to which of them, if either, was solely and primarily its producing cause; therefore, if, as alleged in the complaint here and as found by the jury at the trial, the collision which resulted in the death of the injured parties in the Hoyle case was primarily, solely, and proximately caused by acts of negligence of the railway company, positive, active and subsequent in time to the merely passive, negative, and antecedent negligence of the power company, that the negligence of the wrongdoers was different in kind and the power company less culpable than the railway company, which had the last clear chance, but failed to avail itself thereof, to avoid the accident, the case falls within an exception, or is not subject, to the general rule that contribution or indemnity may not be had by one joint wrongdoer of another for an injury done by their concurrent acts.

The contention of the defendant railway company as shown by the several defenses of its answer in which the points are appropriately made are: General denial; negligence, and contributory negligence of plaintiff; that plaintiff, and not defendant, had the last clear chance to avoid the collision and failed; that in the Hoyle personal injury case, plaintiff power company was adjudged guilty of negligence proximately contributing to the accident resulting in the death of the passengers, and that question was not, and is not, open to review or consideration in this case; and if the verdict established such negligence, this operates as a bar or estoppel on the power company to claim either indemnity or contribution in this or any other action, and upon the same principle the estoppel applies to the recovery of damages asked in the second cause of action for destruction of the street car; that by the terms of an indemnity contract between the parties, the same operates as a bar to both causes of action in the complaint.

These objections, which appear in appropriate separate defenses of the answer, and the errors assigned to rulings of the court during the trial; refusal to order a nonsuit, and to direct a verdict for the defendant, the adverse rulings on defendant's objection to testimony, and to the instructions given--fairly present the questions for our determination.

The foregoing statement shows that plaintiff, to escape the general rule, alleges facts which it says brings the case within the exception. There is no question as to the general rule, which prevents one wrongdoer from recovery over of indemnity or contribution from another wrongdoer. The parties are in accord as to that, but disagree about the exceptions. The difficulty, we think, is not so much in stating the correct rule or principle of law applicable to indemnity or contribution as in applying it to the particular facts. If therefore neither the former judgment in the Hoyle case, nor the indemnity contract, is a bar to this action, and if the court committed no error in its rulings during the trial, or in its instructions, the judgment here should be affirmed if the exception exists and the case, as made, falls within it.

We shall first discuss the two pleas of estoppel, separately pleaded; the one, based upon the former Hoyle judgment, the other, upon the indemnity contract.

The first really involves two propositions: One, whether there is an exception, as asserted by plaintiff, to the general rule; the other, the effect of the former Hoyle judgment, if the exception exists.

As to the first proposition, the authorities, if not in real, are in apparent, conflict. To attempt a reconciliation would be fruitless. In a recent case, Ellis v. C. & N.W. Ry. Co., 167 Wis. 392, 167 N.W. 1048, the court declared that one of two wrongdoers may, in a proper case, like the one before it, have contribution from the other. In the opinion is a spirited review of some leading English and American cases. The action there was for contribution. While indemnity may not in all respects be subject to the same rules, what is stated in the opinion applies equally to both kinds of redress. After adverting to the general rule, the opinion states the exception which we think controls the present case. The Wisconsin court said that in England the rule against redress 'is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.' In other cases, where there is no willful or conscious wrong, redress may be allowed. In the American authorities the court said there is a lack of harmony. Some of the courts, in some of the cases, declare the general rule and apparently without an exception, and in other cases, in the same court, an exception is recognized in cases like that before us, which some courts, as in New Hampshire, say is not an exception to, but that cases ordinarily designated as an exception, do not fall within, the rule. Possibly some of the apparently inconsistent statements in the opinions may be reconciled by applying the almost universal rule that general statements in an opinion are to be interpreted in the light of the particular facts of the case in which they are made. Even so, it would seem that the doctrine is not uniform.

In the Ellis Case, supra, the court referred to the Union Stockyards Co. v. C. B. & Q. R. R. Co., 196 U.S. 217, 224, 227, 25 S.Ct. 226, 49 L.Ed. 453, 2 Ann.Cas. 525, an indemnity suit, which was there, as here, strongly relied upon as against redress by way of indemnity or contribution. There the Wisconsin court said that the facts in the Stockyards Case were quite different from the facts then before the court, but if they could not be distinguished, which the court thought doubtful, the federal decision would not be followed. As the Stockyards Case is, perhaps, most strongly relied upon here by the defendant, as it was in the Wisconsin case by the party holding the same view, and as this court is committed to the custom and practice of following the lead of the United States Supreme Court on a point of general law, a study of that case is well worth while, particularly as it is so essentially different in its facts from the facts we have before us, that this difference brings our case clearly within the exception to the general rule which the federal court recognizes.

The railway company, which received a freight car from its owner in bad condition, turned it over to the stockyards or terminal company in the same defective condition. Neither company made any inspection of the car. An employee of the terminal company was injured by reason of its defective condition, which even a slight inspection by either company would have revealed. An employee, Goodman, sued the terminal company, his employer, on the ground of its negligence in not discharging its duty to him of inspecting the car, and recovered a judgment which the terminal company was compelled to pay, and thereupon brought suit for indemnity against the railway company for its failure to inspect. The Supreme Court of the United States held that because the negligence of the two wrongdoers was of the same character, namely, failure of the duty of inspection, and therefore each wrongdoer was equally guilty in kind, that case fell within the general rule which precludes recovery over by one joint wrongdoer against another where the former is compelled to pay a joint judgment against them for separate acts of negligence which contributes to the injury. But the court said, and in its statement the difference between that and this case clearly appears:

'In many instances, however, cases have been taken out of this general rule, and it has been held inoperative in order that the ultimate loss may be visited upon the principal wrongdoer, who is made to respond for all the damages, where one less culpable, although legally liable to third persons, may escape the payment of damages assessed against him by putting the ultimate

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