Davidson v. Denver Tramway Co.

• Decision Date: 12 February 1894
• Parties: DAVIDSON v. DENVER TRAMWAY CO.
• Court: Colorado Court of Appeals

35 P. 920

4 Colo.App. 283

DAVIDSON v. DENVER TRAMWAY CO.

Court of Appeals of Colorado

February 12, 1894

Error to district court, Arapahoe county.

Action by David Davidson against the Denver Tramway Company. Judgment for defendant. Plaintiff brings error. Affirmed.

Felker & Dayton, for plaintiff in error.

James H. Brown and Milton Smith, for defendant in error.

BISSELL P.J.

An electric car operated by the tramway company collided with the wagon in which Davidson and his wife were riding, and did considerable damage to their persons and property. Davidson brought suit, but at the conclusion of his proof he was nonsuited, and has brought error to reverse the judgment. He was evidently nonsuited because of his negligence, which contributed to the injury. Only so much of the evidence will be stated as bears upon this single proposition, and is necessary to an easy apprehension of our conclusions respecting it. The tramway company operated an electric line out Broadway for several miles beyond the limits of Denver. That street runs due north and south, and at the point of the accident consists of a single track, with turnouts or switches to enable the cars to pass each other. Davidson had lived at Petersburgh for nearly a year prior to the accident, and was accustomed to drive to town several times a week. The streets crossing Broadway run at right angles to it, and this was true of Myrtle street, along which Davidson drove eastwardly on the morning of the 10th of April, when he was hurt. In pursuing his journey, he crossed the railway track at the intersection of Myrtle and Broadway, to the east side of the road, turned to the left, and went north along the line to a point some 210 feet beyond Myrtle, where he attempted to cross the track to a store on the other side of the way. His course was some 7 or 8 feet distant from the track, and of course coincident with that of the car coming from the south, which afterwards struck his vehicle. According to his testimony, when he crossed the track at Myrtle, he looked south, and saw no car coming. As he turned and went north, he saw a car on the switch, about 900 feet from that point, headed southward, and waiting for a car which was coming from the south, headed in the opposite direction, but which, as he states, he did not see. He noticed the car on the switch, and evidently knew it was waiting for the car bound north to pass, which, of necessity was coming behind him, running in the same direction that he was traveling. At this part of Broadway the road is comparatively level, and, as Davidson testifies, any one could see southward from Myrtle street a distance of three-quarters of a mile. There was a grocery store on the west side of Broadway, between Myrtle and the next street crossing Broadway to the north, at which Davidson and his wife were in the habit of trading. It would appear, although the evidence is not very clear upon this subject, that travel was somewhat common across Broadway at that point, and that the customers who drove on the eastwardly side of the road at about the location of the grocery crossed the track to do their trading. Davidson and his wife both testified that such was their custom, and on this particular morning they started to cross the track, and were run into by the car. They were driving in an open wagon between 8 and 9 o'clock in the morning, and neither was bundled up, nor had their ears covered. The morning was fair, although somewhat cloudy, but there was nothing in the conditions of the weather to prevent these persons from either hearing or seeing the approaching car. Davidson says that, after he crossed the track at Myrtle, he noticed the car standing on the switch, but that when he turned to cross the road he neither listened nor looked back, to discover whether a car was coming from the south. After they got onto the track, his wife looked, and discovered the car almost onto them, when Davidson did the best he could to get out of the way, but failed, and was injured. One of his witnesses testified that the car was coming along at the rate of 10 or 12 miles an hour, while, according to Davidson, his horse was being driven in a sharp walk or a slow trot, at the rate of 4 or 4 1/2 miles an hour. This is only important as bearing upon the degree of watchfulness or care which Davidson used at the time.

The great development of rapid surface transportation, and the almost universal appropriation of the streets of the cities and the roads running therefrom to the suburbs, by the various cable and electric systems, have resulted in the springing up of a very large and increasing class of suits for personal damages, and in the development of a new body of the law, which has been formed by the application of old rules to the new conditions, and the evolution of some relatively modern doctrines applicable to the use of streets and highways. The roads have always been the king's highway, along which all persons had an equal right to pass. The learning which has been expended in the settlement of the rights of the pedestrian and the driver of a vehicle, and their relative duties and obligations when passing or meeting upon the highway, has developed a most interesting branch of the law. In this action, we are concerned with but a very slight element of it. The difference between the rights of steam railways and street railways is marked and unquestioned, although in many respects somewhat similar. The distinguishing difference is in the exclusiveness of the right of a steam-railway company to occupy its track as against all other persons or modes of locomotion. The street railway, however, occupies the surface of the highway subject to the common use, not only of the balance of the road, but also of that part covered with the tracks by either the pedestrian or the driver of a vehicle. The cases are not entirely agreed in their description of the easement enjoyed by the transportation company. It is always conceded not to be exclusive, but is generally held to be superior. Whether or not this is an accurate description of their right, their privilege is undoubtedly a preferential one, as against all other...