Denver City Tramway Co. v. Brown

• Decision Date: 01 June 1914
• Docket Number: 7631.
• Court: Colorado Supreme Court
• Parties: DENVER CITY TRAMWAY CO. v. BROWN.

143 P. 364

57 Colo. 484

DENVER CITY TRAMWAY CO. v. BROWN.

No. 7631.

Supreme Court of Colorado

June 1, 1914

On Motion for Rehearing, October 5, 1914.

Appeal from District Court, City and County of Denver; J. W Sheafor, Judge.

Action by William Shirley Brown, by Frank M. Brown, his next friend against the Denver City Tramway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Gerald Hughes and Howard S. Robertson, both of Denver (Frederick P. Smith, of Denver, of counsel), for appellant.

Stephen W. Ryan and Horace N. Hawkins, both of Denver, for appellee.

SCOTT J.

This is a proceeding to review a judgment of the district court of the city and county of Denver, awarding the defendant in error $7,500 as damages in a case of personal injury.

The plaintiff below, at the time of the accident, was a child a few days under five years of age. He was struck and severely injured by one of the defendant company's cars, causing the amputation of one foot, and other severe injuries. The accident occurred on Cherokee street, in the city of Denver, where the defendant company has two tracks, outgoing and incoming. This street runs north and south, and the boy was injured by a north-bound car. Cherokee street is intersected by the following streets, named in their order from south to north: Cedar, Bayaud, Archer, Ellsworth, Irvington place, and First avenue. The accident occurred between Irvington place and First avenue.

The plaintiff's parents lived in a terrace situated on the northwest corner of the intersection of Cherokee street and Irvington place. There was a passageway at the rear or north end of the house. The little boy and a playmate had purchased toy kites, and the plaintiff had called to his mother to come out and see him fly his kite. She went out with him into the passageway and toward the street, and just prior to the accident was on or near the sidewalk next to their home, which was on the west side of Cherokee street. The boy started into the street, going in a southeasterly direction toward the car tracks, looking backward at the kite that he was attempting to fly. The north-bound car came along and struck him, causing the injuries. The acts of negligence relied on are: The failure to sound a gong or bell, or to otherwise give warning; that no brakes were applied, and no attempt made to stop the car until after it struck the boy; and that by the exercise of due diligence the motorman could have seen the danger to the boy in time to have avoided the accident. The testimony justifies the conclusion that the boy started backward into the street, not directly toward the tracks, but in a diagonal direction leading toward the tracks, and facing or looking back at the kite, which was attached to a short string about three feet long, and which he held in his hands. As to the rate of speed at which the boy was proceeding, how long he stopped on the sidewalk, or if he did so at all, there is a conflict of evidence, and this was submitted to the jury under proper instructions. It is not within the province of this court, in the absence of palpable wrong, to disturb the finding of the jury.

The distance from the house line to the inner rail upon which the car was running was about 40 feet. In the diagonal direction in which he proceeded this distance would be greater. After striking the plaintiff, the car proceeded about 120 feet before it was stopped. It appears that the car had not stopped for any purpose for a distance of about 3 blocks, and did not stop at Irvington place, the last street crossing, before the accident. This statement of fact is not given as evidence of or constituting negligence, but as showing one of the surrounding circumstances. The tracks at that point are upon substantially level ground, with a clear view along the street for 3 or 4 blocks distant from the point where the accident occurred. The evidence shows the car to have been running at normal speed, estimated by defendant's witnesses at from 12 to 15 miles per hour.

The testimony is very conflicting. The contention of defendant below was that the boy darted suddenly from a position of safety on the sidewalk out into the street, and ran into the side of the car; that of the plaintiff that at the time of the accident he was in a position of danger, which, by the exercise of due care, could have been seen by the motorman in time to have prevented the injury, and that the boy was in front of the car when he was struck.

At the close of plaintiff's testimony the defendant moved for a directed verdict, and again for a nonsuit, and at the close of all the testimony the defendant again moved for a directed verdict, all of which motions were denied by the court, and these rulings, among others, are assigned as error in the case.

The testimony of plaintiff's witnesses shows that the boy was struck by the fender of the car while he was at a point between the rails of the track upon which the car was running. The testimony of the defendant's witnesses tend to show that he ran directly into the car at the side of it, and at a point where the number of the car was placed, being on the side of the front part of the car, which was inclosed. The rear portion of the car was open and furnished with cross seats, while the front part of the car was inclosed, and with seats running along the side. There is testimony to show that the lower part of the figures constituting the number on the car, between which it is testified the boy struck the car, is very much higher from the ground than the height of the plaintiff, and this together with the character of the injuries sustained, may well have caused the jury to doubt testimony to the effect that the child ran into the side of the car.

The mother of the boy, and other witnesses, testified that the car did not stop at Irvington place, and that no gong or bell was rung, nor brakes applied, nor other warning of its approach. Mrs. Brown, the mother, testified that she was looking at the child as he was trying to fly his kite, and supposed that when he left the curbing he intended to go down the street; that she did not hear the car; and that there was no warning whatsoever of its approach; also that there was sufficient time for the motorman, after he could have seen the danger, to have stopped the car and prevented the injuries.

There was also the testimony of witness Maher, who says that he was a passenger on the car and boarded it at a point three or four blocks from the accident; that during that time, and shortly prior to reaching Irvington place, somebody in the car called to the motorman, who opened the door between the car proper and the vestibule, and with his face turned to the inner part of the car, engaged in a conversation with a passenger, but that the witness was reading a paper or magazine, and could not say that the motorman was so engaged either at the time of the accident or at the time of crossing Irvington place. This testimony was denied by the motorman, and is not corroborated by any other witness, although there were but two other persons in the particular compartment of the car.

There is an assignment of error as to other testimony of this witness, to the effect that he had for a long time passed over this street on the car each day going to and from his work, and that it was customary for children to be playing in and about the street at the place where the accident occurred. It appears from the evidence also, that there were some vacant lots just across Cherokee street from plaintiff's home, and on the corner, commonly used by children as a playground, and where some were playing at the time of the accident. It is urged by the plaintiff in error that this evidence establishes the existence of conditions at other times, disconnected from the time of this accident, and for the purpose of establishing what care the motorman should have exercised under the particular circumstances shown to have existed at the time this accident occurred, and had for its object and purpose the fixing of a standard of care and caution not in accordance with the conditions confronting the motorman on the occasion in question, but upon other occasions. This contention cannot be sustained, for there was no other particular occasion suggested in the testimony, and no other fact than that the street had been used by children in crossing and for play at other times. In fact, the testimony amounts to but little, if anything, more than a commonly known fact derived from experience, and of which courts take judicial knowledge, that in populous portions of the city street car tracks may be, and are likely to be, obstructed by children using the street for play and otherwise. There is no testimony in the case that indicates that at the time of the accident, or at any other time, there were other children in a position of danger, save and except in the case of the plaintiff; so that the jury cannot have been misled into drawing any inference to the effect that there was at some other time any particular or specially dangerous occurrence. It is entirely competent in such a case to show that the accident occurred in a thickly populated portion of the city, and it is but a natural and lawful inference to be drawn therefrom that children are likely to play in the residence streets where the city is so thickly populated; so that the testimony in this case amounts to no more than what the jury might have justly inferred.

The court very properly instructed the jury as to the law in this regard as tending to define ordinary care under such circumstances, as follows:

'That in the operation of such cars it is the duty of the defendant company to recognize that children may from time to time be

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