Colorado & S. Ry. Co. v. Ford

Decision Date07 November 1921
Docket Number10189.
PartiesCOLORADO & S. RY. CO. v. FORD.
CourtColorado Supreme Court

Department 1.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Action by J. J. Ford against the Colorado & Southern Railway Company. Judgment for plaintiff, and defendant brings error.

Application for supersedeas denied, and judgment affirmed.

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

W. E Clark, of Denver, for defendant in error.

ALLEN J.

This is an action for damages resulting to an automobile in an accident at a railroad crossing. The plaintiff recovered a judgment, and the defendant brings the cause here for review applying at this time for a supersedeas.

The complaint charged negligence, and as to that matter there is now no controversy. The answer set up the defense of contributory negligence.

Counsel for plaintiff in error state, and we likewise find, that the assignments of error present but one question for our determination, and that is whether or not as a matter of law the plaintiff was guilty of such contributory negligence as to bar recovery. Only so much of the evidence as is sufficient to dispose of this question will be hereinafter stated.

On April 17, 1920, at about 10 o'clock p. m., the plaintiff, accompanied by other persons, was driving an automobile, proceeding south on Logan street, in the city and county of Denver. The railroad track of the Colorado & Southern Railway Company, the defendant, crosses Logan street diagonally at a point toward which plaintiff was driving. As plaintiff was nearing this place, the crossing was being approached by a passenger train of the defendant. The train was being drawn by a locomotive traveling backward, the tender being ahead. The plaintiff's evidence is to the effect that he was driving at the rate of from 10 to 12 miles per hour when approaching the crossing, and that when he was '30 to 50 feet' from the crossing he saw a dark object, the tender of an engine, approaching.

On seeing the moving locomotive tender, the plaintiff believed that his machine would collide with it if he attempted to stop; in other words, that the automobile could not be stopped before reaching the track. Plaintiff thereupon stepped upon the accelerator, increasing the speed of the car, in an attempt to cross the track ahead of the train. In doing so, he steered the automobile toward the right, so that it would reach the track at a point a short distance away from where the locomotive then was, and approaching the crossing from his left. He succeeded in getting his machine across the track at that point before it was reached by the train. A collision was avoided. The track at the point where plaintiff crossed it is beyond or near the edge of the intersection of the street and the railroad right of way, and crossing arrangements are not provided for, the rails not being planked. As a result of driving the automobile across the track, over unplanked rails, beyond the usual crossing place, the machine was damaged.

The plaintiff testified that at the time of the accident no bell was ringing upon the locomotive, no bell signal system was in operation at the crossing, and that there were no lights of any kind upon the approaching locomotive tender.

The street on which plaintiff was traveling was wet, muddy, and slippery. The curtains of the automobile were in use, so that the car was inclosed, except for an open space at the driver's, the plaintiff's, left.

Referring to the occasion of approaching the crossing, the plaintiff testified:

'I looked and listened because I always was familiar that there was a track there, and always bore that in mind. I didn't hear anything and didn't see anything, and all of a sudden this black object appeared. I stepped on it and turned it off to one side to get across because I knew if I went to stop it would hit me.
'Q. Now, when you stepped on it, as you say, you mean you put your foot on the accelerator? A. Yes.
'Q. In an endeavor to get ahead of the tender to avoid a collision? A. Yes.'

The plaintiff did not stop in approaching the railroad crossing but it is not claimed, and it could not be held, that because of such fact alone the plaintiff was guilty of contributory negligence. In section 685, Berry, Automobiles (3d...

To continue reading

Request your trial
3 cases
  • Interstate Motor Lines, Inc. v. Neal
    • United States
    • Colorado Supreme Court
    • April 7, 1947
    ...179 P.2d 665 116 Colo. 242 INTERSTATE MOTOR LINES, Inc., v. NEAL. No. 15854.Supreme Court of Colorado, in Department.April 7, 1947 ... Rehearing ... Denied April 21, 1947 ... Error ... to District Court, Larimer County; Claude ... looking and listening would be reasonably effective. This ... he did not do. Colorado & S. R. Co. v. Ford, 70 Colo ... 408, 201 P. 892 ... 2. It ... is next alleged that the court erred in giving instruction ... No. 8, particularly that ... ...
  • Brice v. Miller, 16189
    • United States
    • Colorado Supreme Court
    • April 24, 1950
    ...when so judged, to be that of a reasonably prudent person, he cannot be said to be guilty of negligence. Colorado & Southern Railway Co. v. Ford, 70 Colo. 408, 201 P. 892. One must use care proportioned to the probable We are fully persuaded that the defendant MacDonald could not be charged......
  • Kendrick v. Price
    • United States
    • Colorado Supreme Court
    • November 7, 1921
    ... ... Application ... for supersedeas denied, and judgment affirmed ... Orr & ... Little, of Colorado Springs, for plaintiff in error ... W. D ... Lombard, C. B. Horn, and Eugene D. Preston, all of Colorado ... Springs, for defendant in ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT