Denver & B.P. Rapid-Transit Co. v. Dwyer

• Decision Date: 04 June 1894
• Citation: 20 Colo. 132,36 P. 1106
• Parties: DENVER & B. P. RAPID-TRANSIT CO. v. DWYER.
• Court: Colorado Supreme Court

36 P. 1106

20 Colo. 132

DENVER & B. P. RAPID-TRANSIT CO. v. DWYER.

Supreme Court of Colorado

June 4, 1894

Appeal from district court, Arapahoe county.

Action by Michael Dwyer against the Denver & Berkeley Park Rapid-Transit Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

In July, 1890, the Denver & Berkeley Park Rapid-Transit Company owned and operated a line of street railway extending from the city of Denver to Berkeley lake. It operated the road by means of passenger cars drawn by steam motors, and was a common carrier of passengers for hire. The plaintiff, Dwyer at the date mentioned, was an employé of the defendant company, working, with others, under the direction and control of a section boss or foreman, and engaged in the repair of the roadbed and track. At its eastern terminus the road connected with a cable line running into and through the city of Denver. It was the custom of the defendant company to transport its section men, including plaintiff, to and from the work by means of a hand car. At the close of work on the day in question, this hand car being out of repair, plaintiff and his fellow workmen were directed by the section boss to board one of defendant's passing trains, and to get on so as not 'to bother the passengers.' This train consisted of a motor and two cars. The cars were filled with passengers, and the platforms and steps crowded, and for this reason plaintiff seated himself on the front platform of the motor. This platform was an open space about 18 inches wide running across the motor, with an iron guard in front, and bars or steps perpendicularly under the end of the platform on the sides. Plaintiff took his seat on the right-hand side of the motor, resting his feet on the step below. This necessarily caused his knees to project somewhat beyond the edge of the platform, which was on a line with the side of the motor. At the Denver terminus of the road there was a Y with an automatic switch at the point where the first arm of the Y left the main track, and a hand switch where this arm joined the other, to make the stem of the Y. On the stem of the Y there was a coal house, where the engine was accustomed to take on coal and water. This Y was in a cut, and on the side occupied by the plaintiff the embankment was perpendicular, and so close to the track that in places the motor in passing grazed it. There was evidence to show that trains in running to the city were accustomed to stop between the automatic switch and the hand switch, and that at this place passengers usually left the train, after which it would pass over the stem of the Y to the coal house, and would remain there 10 or 15 minutes for the purpose of replenishing its stock of coal and water, and, having done this, would back down a short distance, to make connection with the cable cars. It was plaintiff's intention, when he boarded the motor on this occasion, to alight when he reached the usual stopping place between the switches. As he mounted the motor he spoke to the engineer, saying that he thought this as comfortable a place as he could get, to which the engineer replied that it was. The evidence shows that the engineer from his position on the engine, could plainly see plaintiff where he was sitting. On the day in question, before the arrival of the train at the stopping place between the switches, the hand switch was thrown by an employé of the company, referred to by the witnesses as the relief conductor. For this reason the train did not stop at the switches. Plaintiff, however, in expectation of the train making the usual stop, arose from his sitting posture, and was standing on the bar or step, with his knees slightly projecting; not more so, however, than when in a sitting posture, and holding to the iron guard or rail of the platform. Plaintiff endeavored to signal the engineer to stop, but failed to attract his attention. The train did not stop, but, passing the switch, entered the cut at a considerable rate of speed, and by so doing brought the plaintiff into violent contact with the embankment in the cut, and so broke his leg, and otherwise injured him. At the close of plaintiff's evidence the defendant moved for a nonsuit on the ground that plaintiff was guilty of such contributory negligence as barred a recovery. This motion was denied. The defendant declined to introduce evidence, and the case was submitted to the jury upon the evidence of plaintiff and his witnesses. The negligence relied upon is charged in the complaint as follows: 'That upon approaching the terminus of said road nearest to the city of Denver, said defendant, not regarding its duty in that behalf, did so carelessly, negligently, and unskillfully conduct and operate its said train of cars as not only to fail to stop the same, and bring the same to a halt, at the regular and proper place for stopping, and permit and enable this plaintiff to debark from said train, but did carelessly and negligently run the same past the regular stopping place at a high rate of speed, thus rendering it impossible for plaintiff to debark therefrom, and did carelessly and negligently run its said train on, to, and upon a switch or side track there situate, and against and into a cut in the embankment thereof, which said embankment had been theretofore carelessly and negligently left by defendant company so near to its said switch or side track as to leave no space for plaintiff to escape, so that plaintiff was caught between the steps of said motor engine and said bank in such wise as to break plaintiff's leg, and to inflict other and further permanent injuries upon plaintiff.'

Brown & Smith, for appellant.

George D. Talbot, W. H. Wadley, and Ralph Talbot, for appellee.

HAYT C.J. (after stating the facts).

It is contended by appellant that under the allegations of the complaint the breach of duty charged consisted in the defendant company negligently carrying plaintiff past his destination, and that for this breach at best only nominal damages are warranted. This argument is manifestly unsound. The...