Denver City Tramway Co. v. Cowan

• Decision Date: 05 June 1911
• Citation: 116 P. 136,51 Colo. 64
• Parties: DENVER CITY TRAMWAY CO. v. COWAN.
• Court: Colorado Supreme Court

116 P. 136

51 Colo. 64

DENVER CITY TRAMWAY CO. v. COWAN.

Supreme Court of Colorado

June 5, 1911

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Action by Edwin R. Cowan against the Denver City Tramway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Gerald Hughes and Howard S. Robertson, for appellant.

Richardson & Hawkins and Stephen W. Ryan, for appellee.

WHITE, J.

Appellee as plaintiff below, sued the appellant and recovered judgment in damages for personal injuries sustained while attempting as a passenger, to get upon a street car then owned and operated by the latter, upon the public streets of the city of Denver. From the judgment, the defendant company appeals.

The original complaint stated the facts as constituting one cause of action. A motion, interposed by defendant to 'separate, and separately state, the two alleged and pretended causes of action,' was sustained, and thereupon appellee filed an amended complaint. Omitting the formal parts thereof, it is alleged, substantially, as a first cause of action, that plaintiff, desiring to board one of the cars of the defendant at Fifteenth and Platte streets, signaled an incoming car traveling along Fifteenth street; that the car in obedience thereto, came to a stop; that thereupon plaintiff attempted to board the same, and as he was in the act of getting on, and before he could land, the car was suddenly and violently started by defendant, and thereby plaintiff was thrown therefrom across, over, and upon the street, and by reason thereof his right clavicle was broken and contused, and the flesh, muscles, and tissues surrounding the same were greatly injured, the neck of the right femur was broken, and the flesh, muscles, and tissues surrounding the same were greatly injured, lacerated, and torn, and his body was severely bruised, beaten, and wounded, whereby and by reason of which he was compelled to, and did, keep his bed for a period of 12 weeks, during which time he suffered immeasurable pain, anguish, and distress, and was permanently injured and disabled. And further: 'That the said injuries occurred and were brought about wholly by reason of the negligence of the said company in each and every, all and singular, of the following particulars, to wit: (a) That the said company should not have caused its said car to be started until this plaintiff had fully gotten onto the said car, and into a place of safety thereon. (b) That the said company should not have started its said car in any event so violently, hurriedly, and rapidly as it did start the said car. (c) That the said car was started at a time and under the circumstances hereinbefore detailed in disregard of the safety of the lives and limbs of the passengers who were about to board said car, and particularly of the life and limbs of said plaintiff. (d) That the servants of the said company who were responsible for the operation of said car were reckless, inexperienced, and inattentive to their duties, all of which was known to, or in the exercise of reasonable diligence would have been known to, said company. (e) That, in trusting the said servants to operate the said car, the said defendant was guilty of neglect thereby endangering the lives and limbs of the passengers on said car, in the operation thereof, and particularly the life and limbs of this plaintiff.' The second cause of action, in its formal parts and in the alleged manner in which the accident occurred, was identical with the first, but particularized as follows: '(a) That the said company wantonly and recklessly caused its said car to be started before this plaintiff had fully gotten onto the said car and into a place of safety thereon. (b) That the said company started its car wantonly, recklessly, violently, hurriedly, and so hastily and rapidly as to endanger the life and limbs of this plaintiff, by reason of which he suffered the injuries as aforesaid. (c) That the said car was started at a time and under circumstances showing a wanton and reckless disregard of the safety of the lives and limbs of the passengers who were about to board said car, and particularly of the life and the limbs of this plaintiff. (d) That the servants of the said company who were responsible for the operation of said car were reckless, inexperienced, and inattentive to their duties, all of which was known to, or in the exercise of reasonable diligence would have been known to, said company, and which it wantonly and willfully countenanced in continuing the said servants in its said employment. (e) That in trusting the said servants to operate the said car the said defendant was guilty of wanton and inexcusable neglect in endangering the lives and limbs of the passengers on said car in the reckless operation thereof, and particularly the life and limbs of this plaintiff.'

Upon mortion of defendant, and order of the court thereon, the plaintiff filed a bill of particulars as to the portions of this body 'bruised, beaten, and wounded.'

The defense interposed, denied the alleged negligence of defendant, and the injury sustained by plaintiff, and pleaded contributory negligence on the part of the latter.

The evidence on behalf of plaintiff was to the effect that the car came to a full stop in obedience to his signal, but before he had an opportunity to board the same, and while in the act thereof, the car started forward, and he was thrown to the pavement and received the injuries set forth in the complaint. That of defendant tended to show that the accident occurred while plaintiff was attempting to board a car which was in repid motion, and which had not stopped, after crossing the intersecting street, where plaintiff attempted to get on. The court, in its instructions, dismissed the second cause of action, and directed the jury to confine itself to consideration of the first.

1. The first assignment of error argued pertains to the reception of alleged improper evidence on behalf of plaintiff, and the rejection of alleged proper evidence offered on behalf of defendant.

A witness for plaintiff was permitted to testify, over the objection and exception of defendant, concerning an accident which occurred to him a few minutes before the one in question. The substance of this testimony is that, on the evening of the accident, witness, for the purpose of taking a car into the city, went to the junction of Central and Fifteenth streets, which is one block west of the point where the accident to plaintiff occurred; that a car came to where he was waiting and stopped, and thereupon witness understook to get upon the same, but before he could do so the conductor rang the bell, and the car started forward, with a jerk, and threw witness therefrom. Then the following question and answer: 'Q. What became of you? A. I rolled off about 15 feet to one side of the car. That is what became of me then and there.'

The general rule is that, when a party is sued for damages arising from a particular act of negligence imputed to him, disconnected, though similar, negligent acts, are inadmissible. A different rule applies when the purpose of the evidence is to establish a previous and continuous defective or dangerous condition of a thing, and knowledge or notice thereof upon the part of the person sought to be charged, or, perhaps, when its purpose is to charge one with notice of another's incompetency, and probably, in a few other instances, not necessary to notice here. Rio Grande Southern R. Co. v. Campbell, 44 Colo. 1, 96 P. 986; Colo. Mtg. & In. Co. v. Rees, 21 Colo. 435, 42 P. 42; Last Chance M. & M. Co. v. Ames, 23 Colo. 167, 173, 47 P. 382; T. & H. Pueblo Bldg. Co. v. Klein, 5 Colo. App. 348, 351, 38 P. 608; Wigmore on Evidence, §§ 199, 208, 250.

In Wigmore on Evidence, § 199, after stating that 'in a few jurisdictions the character of a defendant or of an employé or of a plaintiff for negligence or prudence may be used to show that he probably was not or was careful on a given occasion,' the author puts the question, 'Is it proper to evidence that character by particular instances of the trait?' and, after stating the argument negativing the proposition, proceeds: 'For these reasons, almost all courts exclude such evidence, whatever their views may be * * * as to the propriety of using the character, if otherwise evidenced, to show the probability or improbability of carelessness on a particular occasion.' The author then states the rule permitting the use of single acts for the purpose of establishing notice of incompetency, and proceeds: 'This is not inconsistent with rejecting particular acts as evidence of the objective fact of incompetency.'

In the case at bar, neither the condition of the car nor the incompetency of the servants is involved. The plaintiff could recover only by showing that the servants of defendant in charge of the car were guilty of negligence, resulting in his injuries at the time and place alleged. The only way in which to establish such negligence was by showing that such servants, then and there, started the car without giving plaintiff sufficient time to safely board the same. Indeed, that is the only issue made by the pleadings or sought to be sustained by the evidence. If defendant's servants were not negligent at the time plaintiff sustained the injuries of which he complains, it was wholly immaterial how habitually and recklessly negligent they might have been prior thereto; or, if they were negligent then, how careful and prudent they had previously been. The incompetency of the servants, and notice thereof on the part of defendant, because of the nature of the case, were wholly immaterial, and the case must necessarily be determined under the general rule.

The...