Denver City Tramway Co. v. Wright

Citation107 P. 1074,47 Colo. 366
PartiesDENVER CITY TRAMWAY CO. v. WRIGHT.
Decision Date07 June 1909
CourtSupreme Court of Colorado

Rehearing Denied March 7, 1910.

Appeal from District Court, City and County of Denver; P. L. Palmer Judge.

Action by Elizabeth J. Wright against the Denver City Tramway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles J. Hughes, Jr., Gerald Hughes, Albert Smith, and H. S. Robertson for appellant.

Talbot Denison & Wadley, for appellee.

WHITE J.

Appellee as plaintiff below, instituted this action against appellant, as defendant below, to recover damages alleged to have been sustained by reason of the death of her husband, William G. H. Wright, through the negligence of the defendant.

The complaint as it stood after a motion to strike certain portions thereof had been ruled upon, in substance, charged that defendant, a Colorado corporation, operated a street railroad on Broadway in the city of Denver, whereon there were double tracks--one on the east and the other on the west side of said street, with a space of about eight feet between the two--and was using cars thereon propelled by means of electricity; that said Wright was riding his bicycle and came upon Broadway from the west on West Sixth avenue, turned north towards East Seventh avenue, and traveled along a certain pathway or portion of said street customarily, and with full knowledge of defendant, used by wheelmen for such purpose; that said bicycle path lay about two feet west of and parallel to the east track of defendant; that while the said Wright was then and there in the exercise of due and proper care and without negligence on his part a train of defendant's electric cars traveling behind him, and in the same direction on said east track, was carelessly and negligently operated by defendant's servants; that it was propelled on said street in a northerly direction 'at a greater rate of speed than 12 miles an hour, to wit, at the rate of 25 miles an hour'; that the servants of defendant in charge of said train by keeping a vigilant watch could have seen said Wright, and that he was in danger of being run against and injured by said train, and could have averted said injuries by slowing up or stopping said train, but wantonly, negligently, and recklessly failed to so do; that the said deceased did not know of the proximity of said train to him and was unaware of its approach; that the failure of defendant to ring or sound its bell or gong at said Sixth avenue street crossing or after it passed over the same was in violation of a duty imposed by city ordinance; that by reason of the negligence of the defendant the said train of cars overtook, ran down, and killed the said Wright; that by an ordinance of the city of Denver the speed limit for cars on said street was not to exceed 12 miles per hour; and that in exceeding such speed defendant company was acting in violation of said ordinance. The answer admitted the corporate existence of defendant and the operation of its railroad on Broadway and over the tracks situate as above, denied all other allegations in the complaint, and alleged contributory negligence on the part of deceased. The new matter in the answer was denied by the replication.

At the close of plaintiff's evidence, defendant moved for a directed verdict in its favor on the grounds that plaintiff had failed to show any negligence on the part of the defendant which could be held to be the approximate cause of the accident; that the evidence showed plaintiff guilty of contributory negligence in riding between the tracks; and that deceased was never up to the time of the accident in a dangerous position. This motion was overruled, and likewise one for nonsuit based upon the same grounds. After all the evidence was in, the motion for directed verdict was renewed, but denied. Objections were made by the defendant to the giving and the refusal to give certain instructions, and to the introduction in evidence of the speed limit ordinance. A verdict was returned in favor of the plaintiff. Thereupon motion for new trial was filed, but subsequently withdrawn, and a motion interposed by defendant for judgment non obstante veredicto. This was denied and judgment given upon the verdict, from which this appeal is prosecuted.

A motion for judgment non obstante veredicto cannot be interposed by a defendant in a law case. It was therefore not error to overrule it. Quimby v. Boyd, 8 Colo. 194, 6 P. 462; Hall v. Linn, 8 Colo. 264, 5 P. 641; Floyd v. C. F. & I. Co., 10 Colo.App. 54, 56, 57, 50 P. 864. The motions for directed verdict and for nonsuit were also properly denied. What constitutes negligence and reasonable care is a question for the court, but whether the facts relied upon to show either have been proved is for the jury. In the determination of such matters all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences favorable to him, which the evidence warrants, must be accepted as true. Nichols v. Chicago, B. & Q. R. Co., 44 Colo. 501, 98 P. 809. Therefore, when the facts or the inferences to be drawn therefrom are in any substantial degree doubtful, or fairminded men might reach different conclusions from the facts, the only proper rule is to submit the question to the jury for determination. It is only where the facts are undisputed, and but one inference can be drawn from them, that it becomes the duty of the court to determine as a matter of law whether there was such lack of negligence or the presence of such contributory negligence as to preclude a recovery. Behrens v. K. P. Ry. Co., 5 Colo. 400; Denver S. P. & R. R. Co. v. Wilson, 12 Colo. 20, 27, 20 P. 340; Lord v. Pueblo S. & R. Co., 12 Colo. 390, 21 P. 148; Guldager v. Rockwell, 14 Colo. 459, 24 P. 556; Horn v. Reitler, 15 Colo. 316, 25 P. 501; Union C. & C. Co. v. Sundberg, 36 Colo. 8, 85 P. 319. We are clearly of the opinion that there was ample evidence in this case to warrant its submission to a jury under proper instructions. The evidence in behalf of plaintiff, considered in its most favorable light, proved her case, or, at least, sufficiently established it to support a verdict in her favor. Moffatt v. Tenney, 17 Colo. 189, 30 P. 348.

From the testimony of witness Lott, it appears that he was riding beside deceased from Sixth avenue, where he had overtaken him, saw a car on west tracks coming south towards them. Witness was riding near the south-bound track, deceased near the north-bound track between the double tracks. Witness, who had come from further south on Broadway, knew that car was coming from the south, but did not think that deceased did, dropped behind deceased so that car going south could pass. Wright was riding from six to eighteen inches west of the inside rail of the north-bound track. Witness did not hear any bell sounded or any warning from the car at that time, though had heard whistle or gong further back. After striking Wright, the car ran half a block--200 feet--before it stopped.

Witness Collins testified, in substance, was riding on bicycle about 200 feet behind Wright; saw him for a distance of 240 feet. He rode from a foot to a foot and a half from the left rail of the north-bound track; was watching him; did not deflect himself nor make turn in front of the car.

Witness Dillon testified, in substance, saw Wright come on to Broadway from Sixth avenue. The car that killed him was 25 or 30 yards in his rear. This car was coming behind him, and there was another car going south on the other track. Deceased 'layed over' to the north-bound track for the car that was coming meeting him on the south-bound track to pass, and came down the track until the car hit him. Nothing between Wright and the car to obstruct the motorman's view. The car was going 18 or 20 miles an hour. The car went from 120 to 125 feet after it struck the man.

Witness Swingle testified, in substance, had crossed Cherry Creek bridge going south; saw deceased and two other men riding bicycles north between double tracks; a car was coming on the east tracks going north; another car on the west line was going south. The other two bicyclists turned out of the way of the car. Wright rode some distance after they turned out and seemed to be 'laying over' for the car that was coming from town going south. This car was about 200 or 300 feet back north. Car going north was traveling not less than 18 miles an hour. Nothing to obstruct the motorman's view; could have seen Mr. Wright if he had been looking. Wright rode between the four tracks and was overtaken by the car that was going north, struck, and run over. Car traveled after it struck him before it stopped at least 125 feet. Other evidence gave speed of car at from 15 to 20 miles an hour.

The defendant's testimony was to the effect that deceased appeared to be out of the reach of the car, but, just as the car got opposite to him, he turned abruptly in front of it, and was picked up with the fender; that he was about 4 or 5 feet in front of the car when the turn was made; that car was gonged and blew whistle as it came to Sixth avenue, and just before Wright was struck whistle blew again; that speed of the car was between 10 and 12 miles an hour; that after deceased turned in on track car could not help hitting him, even if speed had been 5 or 6 miles an hour; car coming in opposite direction; was no obstruction between the two; nothing to have prevented Wright from turning to left or even crossing west track entirely; customary for wheelmen to ride between double tracks; hundreds of them every day; their general custom on the approach of a car is to 'lay over' to the other side.

Under the evidence we are of the opinion that the jury might properly have found that...

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