Denver City Tramway Co. v. Gustafson

• Citation: 21 Colo.App. 478,121 P. 1015
• Parties: DENVER CITY TRAMWAY CO. v. GUSTAFSON.
• Decision Date: 11 March 1912
• Court: Court of Appeals of Colorado

121 P. 1015

21 Colo.App. 478

DENVER CITY TRAMWAY CO. v. GUSTAFSON.

Court of Appeals of Colorado

March 11, 1912

Rehearing Denied April 8, 1912

Appeal from District Court, City and County of Denver; Harry C Riddle, Judge.

Action by John W. Gustafson against the Denver City Tramway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Gerald Hughes, H.S. Robertson, and James H Brown, all of Denver, for appellant.

Stark &amp Martin and George S. Redd, both of Denver, for appellee.

KING J.

At the hour of 7:35 o'clock on the morning of June 23, 1906, plaintiff, a pedestrian, collided with a car of the defendant, the Denver City Tramway Company, receiving injuries for which he brought suit and recovered judgment against the defendant, from which judgment the defendant took an appeal to the Supreme Court.

The accident occurred about 3 1/2 miles from the business center of the city of Denver at or near a point where the north line of Forty-Fifth avenue intersects the street car line on the east side of Josephine street. The complaint alleges: That at that time a south-bound car was standing still taking on passengers at or near the place where the south line of said Forty-Fifth avenue intersects the street car line on the west side of Josephine street, and partially within said avenue--diagonally across the street southwesterly from the point of collision. That plaintiff was approaching the intersection of said streets from the east, on the north side of Forty-Fifth avenue, on a rapid run, intending to take the south-bound car standing as aforesaid. That when he reached a point about 36 feet east from the track he saw the north-bound car approaching, and believing he had plenty of time to cross the track before that car reached the said intersection, he continued to run, with his head bent over to protect his face from the rain, until struck by the car. That if said car had been running at its usual rate of speed he would have had plenty to time to pass over the track before the car reached said intersection, but that the car was caused to run at an unusual rate of speed, and by reason thereof to collide with plaintiff. The complaint specifies five acts of negligence on the part of the defendant, namely: (a) That the motorman neglected to sound or ring the gong or bell upon said car within a distance not exceeding 60 feet from said street crossing, as provided by city ordinance; or, (b) while approaching said intersection so as to warn plaintiff of the near approach of said car, although said motorman knew and had reason to believe that plaintiff was about to cross the track; (c) that said motorman neglected to bring his car to a stop before crossing said intersection of streets, and permitted said car approaching said street to pass the other car while standing upon the opposite track upon said intersection of streets, in violation of the city ordinance; (d) that said motorman permitted said car to run at a rapid and dangerous rate of speed while crossing said street intersection; (e) that the motorman neglected to slacken the rate of speed of said car after he knew or had reason to believe plaintiff was about to cross said car track. The ordinances mentioned were set forth in haec verba.

I. Upon the question of the alleged negligence of the defendant the evidence was conflicting as to the speed of the car, and as to whether the gong was sounded, or the speed was slackened while crossing the street. Some of the witnesses for plaintiff testified that the car was running at full speed, estimated to be in excess of 20 miles per hour; that no gong was sounded before reaching the street intersection, or thereafter before the collision occurred; and that no effort was made to slacken the speed while crossing the street. The motorman and conductor testified that the car was not running at a greater speed than 10 or 12 miles an hour when approaching the crossing, and slowed down while passing the south-bound car, and was not going to exceed 8 miles an hour while crossing the street. Witnesses for the defendant also testified that a test was made at the same place with the same car and under similar conditions, excepting the car was not so heavily loaded; that the full current was used and the car was run for several blocks without stopping, with result showing a maximum speed of 17 1/2 miles per hour. The employés of the defendant also testified that the gong was rung upon approaching the crossing. It was shown by the testimony of the employés of the defendant that, under the conditions existing that morning, the tracks being wet, it would take from 80 to 100 feet to stop the car if running at a speed of 10 to 12 miles an hour. The evidence tended to show that the car ran somewhere from 40 to 150 feet, or more, before coming to a full stop after the accident. Upon these questions there was a sharp conflict in the evidence, and the finding of the jury as to the matters hereinbefore set forth is conclusive upon this court; and in the further consideration of the case it will be assumed that the defendant's negligence in the matters stated was established by the evidence.

II. Upon the question of the alleged negligence or want of care of the plaintiff, there appears to be no dispute as to plaintiff's acts and omissions from which his contributory negligence must be held to be established as a matter of law; the allegations of the complaint and the testimony being considered together. Plaintiff testified that when a half block or more from Josephine street he saw the south-bound car approaching at such a distance that he could reach it in time only by going upon a fast run; that while so running, and when about 35 feet from the street car track, he saw the north-bound car at or near Forty-Fourth avenue, approaching at about its usual speed. In his complaint he alleges that the car was about 260 feet from the street intersection, and that he could not tell the speed at which the car was approaching on account of being nearly directly in front of it. He further testified upon cross-examination that after he had gone 5 or 10 feet he saw the car again about 300 feet away from him; that thereafter he continued to run, without again seeing or looking for the car, until he was struck; did not know what part of the car hit him, because he had his eye and his mind on the other car which he was running to catch; that he had lived in that vicinity about a year previous to the accident and had been accustomed to riding upon these cars to and from the city. Plaintiff's witnesses who saw the accident testified that they saw him running toward the car line with his head down and that at the instant he approached the car line and was about to step upon the track, the north-bound car passed, and that he struck the car back of the fender and about the front corner of the car. The motorman testified that when approaching the street intersection, probably 100 or 150 feet from Forty-Fifth avenue, he saw the plaintiff near the alley, running toward Josephine; that he was sure plaintiff saw the car, as he seemed to look around toward it; that he did not think the man would attempt to cross the track in front of his car; that he did not attempt to stop the car on account of plaintiff's approaching it until he saw that plaintiff was apparently intending to cross the track ahead, and then he threw off the current, but was so close that it was impossible to stop the car in time to avoid the accident; that when his car was opposite the end of the sidewalk that plaintiff was running upon, and the front end of the car was just a little past the walk, plaintiff ran against the front corner of the car. He further testified that his reason for not believing that plaintiff would attempt to cross ahead of the car was that plaintiff could, without loss of time or distance, and with perfect safety, pass behind the car in order to reach the south-bound car then taking on passengers. The testimony of the motorman is stated to show that, in every material point except as to the sounding of the gong and his effort to stop the car, it is supported by the testimony of plaintiff's own witnesses and not disputed by plaintiff himself. The attorneys for plaintiff, in their oral argument, admit that plaintiff's testimony is obviously incorrect as to his situation when he first saw the south-bound car, for the reason that that testimony cannot be true if other matters shown by his testimony are true, and they say that he must have been at least 75 feet from the crossing when, as he testified, he saw the car at or near Forty-Fourth avenue. But in that respect plaintiff is precluded by the positive allegations of the complaint and his own testimony absolutely fixing his situation at 35 or 36 feet from the track. It necessarily follows that the approaching car was much nearer than he stated and must have been somewhere near the place stated by the motorman. All the testimony shows that from the time plaintiff reached a point 25 to 35 feet from the railway track he ran with his head down, without looking or paying any attention to the car which he knew was approaching, until he struck the car, which had reached the point of attempted crossing before plaintiff had reached it. Counsel for plaintiff urge that plaintiff's error in making his calculation as to the time he had to get over the track to his car cannot be charged to him as negligence; that he had a right to make such calculation and exercise his judgment thereon, and if it turned out that he miscalculated, he cannot thereby be held to a breach of duty to exercise ordinary care. Under the circumstances of this case, it does not appear that he exercised either the care or the judgment of an ordinarily...