Colorado & S. Ry. Co. v. Thomas

• Decision Date: 05 June 1905
• Citation: 81 P. 801,33 Colo. 517
• Parties: COLORADO & S. RY. CO. v. THOMAS.[*]
• Court: Colorado Supreme Court

81 P. 801

33 Colo. 517

COLORADO & S. RY. CO. v. THOMAS.^[*]

Supreme Court of Colorado

June 5, 1905

Appeal from District Court, Arapahoe County; John I. Mullins, Judge.

Action by Luella A. Thomas against the Colorado & Southern Railway Company From a judgment in favor of plaintiff, defendant appeals. Reversed.

Dines & Whitted (J. G. McMurry, of counsel), for appellant.

T. W Hoyt, Clay B. Whitford, and Henry E. May, for appellee.

GODDARD J.

1. This is an action by Luella A. Thomas against the Colorado &amp Southern Railway Company to recover damages for the death of her husband, which occurred October 15, 1900, at a point where West Colfax avenue crosses what is known as the 'Colorado & Southern and Santa Fé Joint Track,' in the city of Denver. About 11 o'clock at night the decedent, in company with one Lester, was riding west on Colfax avenue in a light open buggy. At the place mentioned a train operated by appellant, coming from the south, struck the horse and buggy and killed both Lester and Thomas. About 200 feet east of this point the South Park tracks cross the avenue. From this crossing a train approaching from the south may be seen about a mile distant, and while passing north for a distance of about three-quarters of a mile. Between the South Park tracks and the place of the accident a power house and coal bin are situated on the south side of the avenue, which obstruct the view of an approaching train from one passing west along the avenue for a distance of about 100 to 150 feet. After passing the power house, and at a distance of 25 feet from the outer rail of the track upon which the train was running at the time, there is an unobstructed view south along the track for a distance of at least 225 feet, and at a point 20 feet from the outer rail for a distance of 1,000 feet. Two witnesses (Henry F. Wilson and his wife, Bertha C. Wilson) testify that on the night of the accident they were on the avenue where the South Park tracks cross the same, and saw the decedent and Lester pass west along the avenue, driving at a pretty fast trot; that they heard the whistle, and saw the train coming, and heard the parties in the buggy say, 'We will beat the * * * over the crossing;' that they urged the horse to a more rapid pace, and did not check their speed until they were struck by the train. William E. Brown testified that he was passing along Colfax avenue at the end of an ice plant which stands just east of the South Park tracks, and saw the two men in the buggy as they passed the west end of the ice plant, and, as the whistle blew, heard the one who was looking up the track say, 'The train is coming,' and the other say, 'Hurry up and get across the track;' that they then urged their horse into a fast trot, and did not decrease its speed until they struck the train. The fact that the horse was driven on a trot while going towards the crossing was corroborated by one of plaintiff's witnesses. In addition to the testimony of witnesses, it is demonstrated by physical facts that the horse collided with the side of the locomotive, and was not struck by the pilot. There is no testimony that in the slightest degree militates against the testimony of the Wilsons and Brown as to any material facts testified to by them, nor any circumstance developed in the case that throws discredit upon their evidence; and we are unable to perceive any reason that warranted the jury in disregarding their testimony and all the admitted circumstances surrounding the case, and base their verdict on some undiscernible inference or conjecture. Whether Thomas and Lester heard the whistle and saw the train, as stated by these witnesses, or not, the fact remains that they drove with more or less speed from the South Park tracks to the place of the disaster without stopping, and apparently without looking or listening for the approaching train, and without the slightest manifestation of that reasonable care or common prudence that the circumstances demanded and that the law exacts. The duty that the law imposes upon a person approaching a railway crossing is well settled by the decisions of this court. Railway Co. v Crisman, 19 Colo. 30, 34 P. 286; Railroad Co. v. Nuney, 19 Colo. 36, 34 P. 288; Railroad Co. v. Gustafson, 21 Colo. 393, 41 P. 505. Counsel for appellee insist that the decedent was excused from looking and listening because the noise created by the power house would prevent his hearing the approaching train, and the building would have prevented him from seeing the train if he had looked. Under such circumstances, it was his duty to resort to other means of ascertaining whether a train was approaching, and it was clearly his duty after passing this obstruction to stop, look, and listen. Had he done so, he would have seen the train in time to avoid the accident. As was said in Seefeld v. C., M. & St. P. Ry. Co., 70 Wis. 216, 35 N.W. 278, 5 Am.St.Rep. 168, and quoted in Railway Co. v. Crisman, supra: 'If the view of a traveler on the highway approaching a railroad crossing is so obstructed that he cannot see an approaching train in time to stop his team before colliding with it, if he knows that a train is due at such crossing at or about such time, and if he is unable to hear the approaching train when his team is in motion, whether by reason of the force and direction of the wind or of noises in the vicinity, whether made by his own wagon or by other causes, ordinary care requires him to stop his team while he may do so, and listen for the train.' And as was said in Brady v. Toledo, etc., Co. (Mich.) 45 N.W. 1110, speaking of the plaintiff's duties under the circumstances: 'He had no right to close his ears, and drive along without stopping, when he must have known that the noise of his wagon and of the mill would shut off the sound from the approaching train.' Lester and decedent not only failed to observe these reasonable and necessary precautions, but, with an utter disregard of the inevitable consequences, drove recklessly into danger. In these circumstances, it is unnecessary to determine whether the appellant was guilty of the acts of negligence charged, since the actual and gross neglect of Lester and the decedent directly contributed to produce the injury complained of. Instruction No. 3, while correct as an abstract proposition of law, was misleading. It is conclusively shown by the evidence that it was impossible for the engineer to avoid the collision, after he saw the situation of decedent, by the exercise of the utmost degree of care. It was therefore error to submit that proposition of law, in the absence of any facts to which it could be applied.

2. It is contended by counsel for appellee that, notwithstanding Lester may have been guilty of contributory negligence that would prevent a recovery for his death, it appearing that the plaintiff's husband, Thomas, was merely driving with Lester gratuitously upon his invitation, and having no control of the movements of the horse, the contributory negligence of Lester would not prevent a recovery by the plaintiff. The court below instructed the jury to this effect. The evidence is conflicting as to whether Lester or Thomas was driving the horse, but we think the jury were justified in finding that Lester was driving and that Thomas was riding in the buggy at his invitation, and we shall assume this to be the fact in deciding the question of law presented by this instruction. Upon the question of imputable negligence, as applicable to occupants of private conveyances, there is much conflict among authorities, and...