Colorado Springs & Interurban Ry. Co. v. Allen

• Decision Date: 06 October 1913
• Citation: 135 P. 790,55 Colo. 391
• Parties: COLORADO SPRINGS & INTERURBAN RY. CO. v. ALLEN.
• Court: Colorado Supreme Court

135 P. 790

55 Colo. 391

COLORADO SPRINGS & INTERURBAN RY. CO. v. ALLEN.

Supreme Court of Colorado

October 6, 1913

Appeal from District Court, El Paso County; J. W. Sheafor, Judge.

Action by Eva M. Allen against the Colorado Springs & Interurban Railway Company for injuries received while boarding a street car. From a judgment for plaintiff in the sum of $9,000, the defendant appeals. Affirmed.

Chinn & Strickler, of Colorado Springs, for appellant.

Orr &amp Cunningham, of Colorado Springs, for appellee.

BAILEY J.

The plaintiff, appellee here, an unmarried woman 38 years of age brought suit in the district court of El Paso county against the defendant, appellant here, a street railway company engaged in carrying passengers for hire. The complaint charged, in substance, that on or about the 3d day of August 1909, she was at the southeast corner of the intersection of Fifth avenue and Colorado avenue in the city of Colorado City, at which time and place a street car of the defendant company, managed, operated, and controlled by its employés, approached and stopped at that corner, a regular stopping place for its cars, to admit her for transportation to the city of Colorado Springs; that while the car was standing still she undertook to board it, and stepped upon the lower step of the rear platform, the ordinary means provided for admission of passengers to its cars; that when she was entering the car, with one foot upon the step, and was in the act of placing her other foot upon the platform of the car, the defendant company carelessly and negligently started the car with a sudden and violent jerk; that she was then and thereby thrown from her balance backward with great violence upon and against the ground; that because of such carelessness and negligence of the company she sustained a fracture of the right femur bone, severe bruises and wrenches about the back and spine, and great mental and nervous shock; that since the date of injury she has been confined to a hospital; that she is permanently crippled and injured as a result of such negligence; that at the time of the injury she was in good bodily health, and capable of earning $75 a month as a teacher, to which work, or any work whatever, she is informed and believes she will never be able to return; and that by reason of such negligence she has suffered damage to the extent of $15,750, for which amount and costs of suit judgment was prayed.

A demurrer to the complaint as amended was overruled. Defendant answered first by a general denial, and for a further and second defense denied that the injuries alleged to have been received by the plaintiff, if any, were due to or owing to or caused by any negligence or want of care or caution on its part, but were due to and caused by the default, omission, and want of ordinary care and caution on the part of the plaintiff herself. The replication denies the averments of the second defense and all allegations of new matter in the answer contained. Upon trial, a jury found the issues for the plaintiff, and assessed her damages in the sum of $9,000, for which amount, with costs, after defendant's motion for a new trial had been overruled, judgment was entered. The defendant brings the case here for review by appeal.

The propositions urged for a reversal of the judgment relate chiefly to the giving of instructions and the admission of testimony. The first contention is that prejudicial error was committed in the giving of instruction No. 5, which reads, in part, as follows: 'And as to the contributory negligence alleged by the defendant against the plaintiff, the like burden of proof is upon the defendant, and it must show, by a preponderance or greater weight of the evidence, affirmatively, unless it appears from the testimony of the plaintiff herself or her witnesses, that the plaintiff so contributed to the injuries sustained, if any, by her own act, to entitle the defendant to a verdict at your hands, and that such contributory negligence was the direct and proximate cause of the injury.'

Counsel contend, in this connection, since a preceding instruction defined 'proximate cause' as 'that which, in a natural and continual sequence, unbroken by any new, independent cause, produced the injury complained of, and without which such injury would not have occurred,' that to instruct the jury that it should find the contributory negligence of the plaintiff, if any, to be the direct and proximate cause of the injury, to entitle defendant to a verdict at its hands, was in effect to tell them that no matter how flagrant the contributory negligence of the plaintiff it did not avail the defendant unless it was the proximate cause of the alleged injury. The term 'proximate cause' as there used was entirely proper, and correctly stated a fundamental principle of law applicable to the case. 'Proximate cause' is defined in 6 Words & Phrases, pp. 5759, 5760, as follows: 'The proximate cause of an injury may in general be stated to be that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another, which, had it not happened, the injury would not have been inflicted, notwithstanding the latter.' 'The proximate cause of an injury, within the rule of law which relieves a defendant from liability where the contributory negligence of the plaintiff is the proximate cause of the injury, does not mean the sole and direct cause; but it includes all such acts or omissions as may have contributed to the injury complained of, and there may be more than one proximate cause.' 'To constitute a negligent act the proximate cause of the injury, it need not be the sole cause; but it is sufficient if it is the concurring cause, from which such a result might reasonably have been contemplated as involving the result under the attending circumstances.' Thus used it is apparent that proximate cause is by no means equivalent to sole cause. In an action of this character it is no less essential to establish that the negligence of the plaintiff, if any, contributed directly and proximately to the injury complained of, to defeat recovery, than it is to establish that the negligence of the defendant, if any, was the sole, direct, and proximate cause thereof, as a ground of recovery.

Counsel say further: 'No matter how materially plaintiff's negligence may have contributed to the injury, she was entitled to a verdict under this instruction, if the defendant was also negligent.' This assumption is wholly unwarranted. The instruction simply told the jury that, in order to conclude that plaintiff, either by act or acts of omission or commission amounting to a want of ordinary care, so contributed to the injuries complained of as to disentitle her to a verdict, they must also find that such act or acts were in natural and continual sequence, without which the injury would not have occurred, unbroken by any new, independent cause producing it. This did not require, as counsel contend, that defendant establish, if it does not appear from plaintiff's case as made, that her negligence was the sole, direct, and proximate cause of the injury; it merely requires the contributive act to be so directly and proximately connected, with the injury that but for such act the injury would not have happened, which is a correct statement of the law applicable.

The case of Colorado Central R. R. Co. v. Holmes 5 Colo. 197, 200, states the proposition as follows: 'The simplest rule applicable, deduced from...