Colorado & S. Ry. Co. v. Webb

• Decision Date: 05 February 1906
• Citation: 85 P. 683,36 Colo. 224
• Parties: COLORADO & S. RY. CO. v. WEBB.
• Court: Colorado Supreme Court

85 P. 683

36 Colo. 224

COLORADO & S. RY. CO. v. WEBB.

Supreme Court of Colorado

February 5, 1906

Appeal from Summit County Court; William Thomas, Judge.

Action by George D. Webb against the Colorado & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

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

James T. Hogan, for appellee.

CAMPBELL J.

Action for damages to recover the value of plaintiff's horse which was run over and killed by defendant's railway train, as he says, through negligent operation thereof by its servants. Form a judgment for plaintiff, defendant appeals.

1. There is no merit in the assignments of error based upon the rulings on evidence. That plaintiff's witness, without qualifying himself as an expert concerning the market value of horses in that vicinity, testified as to the quality, and not the money value, of plaintiff's horse, was not prejudicial error. Other competent witnesses on the subject of value showed the horse to be worth as much as, or more than, that returned by the jury. Plaintiff's testimony as to the lateness, and rate of speed, of the train at the time of the accident was properly admitted. It is true that the mere fact that the train was late, or that it was at the time running at the rate of 25 miles an nour, or both together are not proof of negligence, and the jury were so instructed at defendant's request; yet this testimony was admissible as throwing light, in connection with other evidence in the case, upon the particular acts of negligence on which, it seems, plaintiff relied. This was the failure by defendant's servants to make any effort to stop the train before colliding with the horse, which might have been avoided had reasonable care been used. This we gather from an examination of the proceedings of the trial, for there were no written pleadings, the action having originated in the court of a justice of the peace. Neither did the court err in permitting a witness, who was not an expert, to testify as to the speed of the train. That he was not an expert goes to the weight of his testimony. But one of ordinary experience familiar with trains, and possessed of a knowledge of time and distance, without being skilled in handling trains, is a competent witness as to the velocity of their movement. D. & M. R. R. Co. v. Van Steinburg, 17 Mich. 99; Chipman v. U. P. R. R. Co., 12 Utah 68, 41 P. 562; C., B. & Q. R. R. Co. v. Gunderson, 174 Ill. 495, 51 N.E. 708.

2. The most serious question in the case concerns the legal sufficiency of the evidence to establish negligence. Briefly, the facts are that plaintiff's horse was standing in a lot, in the town of Breckenridge, belonging to Mrs. Louage, which was adjoining, or close to, defendant's railroad track, when one of its passenger trains was approaching. Shortly before reaching this lot, and before the train began to round a curve, the whistle of the engine, according to the usual custom, was blown, which frightened the horse. The animal at once started toward the track, and, while attempting to cross it, or to run down the track, was struck by the engine, thrown upon the cow catcher, and carried for several hundred feet before the train was stopped. There was testimony by plaintiff's witnesses that after the whistle was sounded as the train began to round the curve, and after the engineer saw, or by the exercise of ordinary diligence might have seen, the horse running towards or down the track, no effort whatever was made by the trainmen to stop the train before the horse was struck, which might have been accomplished had the usual and ordinary means been resorted to. It is true that the fireman and engineer say that as soon as the horse was visible from the engine, the engineer, though he did not have time to blow the whistle, reversed the engine and applied the air brakes, and thus sought by every means within his power to avoid striking the horse, which he could not prevent. The question with us, however, is not as to the weight of the evidence, or whether the facts are detailed correctly by the trainmen or by plaintiff's witnesses. The credibility of the witnesses and weight of evidence were for the jury. It is sufficient to say that there was evidence tending to show that the trainmen made no effort to stop the train, and because of such neglect the injury occurred. In other words, the evidence before the jury was legally sufficient to sustain the verdict, though were we the triers of fact, we might not agree with their decision. If, therefore, there was no error of the court in its instructions, or in the admission of testimony, this verdict must stand. As already stated, we find no prejudicial error in the ruling of the court upon the evidence.

3. Defendant, however,...