Colorado & S. Ry. Co. v. McGeorge

• Decision Date: 07 June 1909
• Citation: 102 P. 747,46 Colo. 15
• Court: Colorado Supreme Court
• Parties: COLORADO & S. RY. CO. v. McGEORGE.

102 P. 747

46 Colo. 15

COLORADO & S. RY. CO. v. McGEORGE.

Supreme Court of Colorado

June 7, 1909

Appeal from District Court, City and County of Denver; P. L. Palmer Judge.

Action by Percy McGeorge against the Colorado & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Dines Whitted & Dines and J. G. McMurry, for appellant.

S. H Thompson, Jr., and Daniel Prescott, for appellee.

BAILEY J.

Appellee here, plaintiff below, Percy McGeorge, sued the Colorado &amp Southern Railway Company, defendant below, appellant here, to recover damages for personal injuries said to have been sustained by him while a passenger for hire on one of the defendant's trains. The accident was occasioned by a slide of dirt from the mountain side to and upon the track of the company, into which the train was precipitated on rounding a curve. The sudden shock to the train threw the plaintiff, who was then standing, across one of the car seats, and injury resulted to him, for which damage is here sought. Negligence on the part of the defendant is alleged as to maintenance of its roadbed, embankments thereto adjacent, its track, and the operation of its train. There seems, however, no doubt but that the landslide was the direct cause of the injury which plaintiff sustained. Issue was joined on all of the averments of the complaint, except formal matters. In addition to other separate defenses the defendant specially pleaded unavoidable accident, alleging, in substance, that the approximate and efficient cause of the injury was the result of an act of God, unforeseeable and irresistible, and which no human foresight could guard against or prevent. Issue was joined on all affirmative defensive matter, and a trial had, which resulted in a verdict and judgment for the plaintiff, to review which the defendant brings the cause here by appeal.

Since the judgment must be reversed, because of error in instructions given, other assignments will not be considered. The trial judge, in defining the duty which a common carrier owes to a passenger for hire, told the jury this in its instruction No. 2: 'The jury are instructed that carriers of passengers for hire are bound to exert the utmost skill and prudence in conveying their passengers, and are responsible for the slightest negligence or want of skill, either in themselves or their servants. They are bound to use such care and diligence as the most careful and vigilant man would observe in the exercise of the utmost prudence and foresight. The law, in tenderness to human life and limb, holds railroad companies liable for the slightest negligence, and compels them to repel by satisfactory proofs every imputation of such negligence. Carriers of passengers are bound to carry safely those whom they take into their carriages, as far as human foresight and care will go. They are bound to the most exact care and diligence, not only in the management of the train and cars, but also in the structure and care of the track, and in all subsidiary arrangements necessary to the safety of passengers. They are bound to exercise all the care and skill which human foresight and diligence can suggest.'

And again, by and in its instruction No. 3 the court said: 'It is the duty of the railway company, engaged in transporting passengers, to do all that human care, vigilance, and foresight can reasonably do, consistent with the mode of conveyance and the practical operation of the road, in providing safe roadbed and track and embankment along the roadbed, and to use like care to keep the same in repair, and have like care in the conduct and management of its train, for the safety of its passengers. The utmost degree of care which the human mind is capable of inventing or producing is not required, but the highest degree of care, vigilance, and foresight that is reasonably practicable in the conduct and management of its road and business is required. Common carriers of passengers are held to the very highest degree of care and prudence that human care, vigilance, and foresight could reasonably do, which is consistent with the practical operation of their road and the transaction of their business, yet they are not absolute insurers of the safety of their passengers; and, if you find that the defendant exercised all reasonably practical care, diligence, and skill in the location, construction, inspection, and repairs of its roadbed, tracks, and embankments, in the management and operation of the train at the time of the accident, alleged and shown to have occurred, and that the accident could not have been prevented by the use of the utmost practical care, diligence, and skill consistent with the practical operation of its road and the transaction of its business, then plaintiff cannot recover in this action.'

The foregoing instructions undertake to state the rule which governs the liability to, and duty of, the common carrier to its passenger for hire. No argument is needed to show that they are in hopeless and irreconcilable conflict. The first clearly states a higher and stricter rule as to the degree of care and diligence required. Both cannot be right. If the first is, then there was no prejudicial error in giving the latter, as it states a rule more favorable to the defendant than it was entitled to have. In that case, upon whichever one the jury may have based its finding, the defendant has no ground of complaint as to these instructions. On the other hand, if the first of said instructions incorrectly states the law, then the case must be reversed, because of the conflict between it and the true rule, for it is impossible to determine upon the doctrine of which instruction the jury acted, or by which it was governed, in reaching its verdict. We have examined practically all of the cases at hand wherein this precise question has been considered, and reach the conclusion that the clear result of all of them is to the effect that 'For the safety of their passengers common carriers are required to exercise the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the mode and character of the conveyance adopted and consistent with the practical prosecution of their business.' 1 Fetter on Passengers, § 8. This is the rule expressly enunciated in some of the cases, and has the approval of nearly all of the courts of final resort in this country which have made any pronouncement upon the subject. Wright v. Railroad Company, 4 Colo.App. 102, 35 P. 196; Denver Electric Co. v. Simpson, 21 Colo. 376, 41 P. 499, 31 L.R.A. 566; Denver Electric Co. v. Lawrence, 31 Colo. 310, 73 P. 39; Chicago & A. R. Co. v. Byrum, 153 Ill. 131, 38 N.E. 578; Ark. Mid. Ry. Co. v. Canman, 52 Ark. 517, 13 S.W. 280; Pershing v. Railroad Co., 71 Iowa 561, 32 N.W. 488; St. Louis, I. M. & S. Ry. Co. v. Sweet, 57 Ark. 287, 21 S.W. 587; Murray v. Railroad Co., 66 Conn. 512, 34 A. 506, 32 L.R.A. 539; Chicago, P. & St. L. Ry. Co. v. Lewis, 145 Ill. 67, 33 N.E. 960; Chicago & A. R. Co. v. Arnol, 144 Ill. 261, 33 N.E. 204, 19 L.R.A. 313; Meier v. Penn. R. Co., 64 Pa. 225, 3 Am.Rep. 581; Pittsburgh, etc., R. R. Co. v. Thompson, 56 Ill. 138; Southern K. Ry. Co. v. Walsh, 45 Kan. 653, 26 P. 45; Tuller v. Talbott, 23 Ill. 357, 76 Am.Dec. 695; Phila. W. & B. Ry. Co. v. Anderson, 72 Md. 519, 20 A. 2, 8 L.R.A. 673, 20 Am.St.Rep. 483; Kennon v. Gilmer, 5 Mont. 257, 5 P. 847, 51 Am.Rep. 45; Elliott v. Ry. Co., 18 R.I. 707, 28 A. 338, 31 A. 694, 23 L.R.A. 208; Ford v. Railway Co., 2 Frost & F. 730; Indianapolis & St. L. R. Co. v. Horst, 93 U.S. 291, 23 L.Ed. 898; Michigan Cent. Ry. Co. v. Coleman, 28 Mich. 440. Tested by the foregoing rule the instruction first quoted is fundamentally wrong. By the use of the words, 'They [common carriers of passengers] are bound to exercise all the care and skill which human foresight and diligence can suggest,' contained in the last clause thereof, without condition or modification, the highest care and diligence which human foresight could suggest--that is, conceive or imagine--was here imposed upon the defendant by the court, without restriction of limitation. Thus we think the rule too broadly stated, and...