Denver City Tramway Co. v. Nicholas

• Decision Date: 08 January 1906
• Parties: DENVER CITY TRAMWAY CO. v. NICHOLAS.
• Court: Colorado Supreme Court

84 P. 813

35 Colo. 462

DENVER CITY TRAMWAY CO. v. NICHOLAS.

Supreme Court of Colorado

January 8, 1906

Rehearing Denied Feb. 5, 1906.

Appeal from District Court, Arapahoe County; F. T. Johnson, Judge.

Action by Joseph H. Nicholas, a minor, who sues by Joseph Nicholas his next friend, against the Denver City Tramway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The amended complaint, inter alia, avers: 'That the Denver Consolidated Tramway Company, predecessor of the defendant was possessed of certain cars moved and propelled by means of an electric current conveyed thereto by wire stretched over the railway. That the motor cars were equipped with an arm attached thereto upon the top of the cars, and moved vertically upon a hinge, and with a wheel upon the movable end thereof, called a trolley wheel, by which wheel and other devices the particulars whereof are unknown to the plaintiff the electric current was conveyed to the car and the apparatus thereof, and by means thereof the cars were wont to be moved along the railway. That the motor cars were so adjusted that to suspend the motion thereof, the arm attached to them could be and was wont to be drawn and tied down, so that the trolley wheel was no longer in contact with the wire; that the cars were equipped with levers and other devices, the particulars whereof are unknown to the plaintiff, whereby, on releasing the arm and placing the trolley wheel in contact with the wire, and by moving the levers and other devices or some of them, the motor cars would again be set in motion at great speed; that the company was, and for a long time had been wont to assemble and store upon its tracks, upon Alaska street, the cars not at the time in use, and on the occasion in question was unlawfully maintaining and storing on one of its tracks, in the public street aforesaid, among other cars, one of the motor cars equipped as aforesaid. That the cars standing upon the street aforesaid were, as defendant well knew, attractive to children and youths, and that children and youths were and for a long time had been wont to resort to them to amuse themselves by imitating the actions, motions, and conduct of the employés of the company operating the said cars. That defendant had, during all the time aforesaid, omitted to erect any fence about the cars, or place said cars within any inclosure, or station any watchman or other person to warn off or exclude children therefrom; and during all the time aforesaid, had been wont to leave, and on the day and year in question had left, and was leaving and maintaining the cars aforesaid, including one of said motor cars in said Alaska street, entirely exposed, not inclosed, without maintaining any watchman or guard to warn or exclude any children therefrom, or by any means attempting to protect children attracted thereto, from injury by means of such cars; that on the day and year aforesaid, plaintiff and one Nelson Vaille, each being under the age of 13 years, and each being ignorant of the machinery and devices whereby said motor cars were set in motion, and all the uses of said devices, and ignorant of and not appreciating the great danger of attempting to move or operate and interfere with said cars, and plaintiff by reason of his youth being unable to appreciate or understand the danger of attempting to move or operate said cars, or interfere therewith or play about the same, and unable to resist his natural propensity to amuse himself with such cars, went to and got upon one of the said motor cars, and plaintiff and said Nelson were there amusing themselves for one-half hour or thereabouts pretending to move, stop and again set in motion the said car. That in front of the car, upon the same track, was another car of defendant, unlawfully placed and maintained in the public street aforesaid, and that plaintiff and the said Nelson Vaille, or one of them, having untied the rope whereby said arm was drawn down, and having caused said movable arm to rise, so that the trolley wheel was against the wire conveying the electric current as before set forth, plaintiff being ignorant of the uses and devices upon the front platform, and incapable to understand, know or appreciate the great danger of meddling or interfering therewith, carelessly moved one of said levers or some other of the devices aforesaid, and thereby suddenly set the car in motion at great speed and towards and upon and against the other cars standing in front thereof; and plaintiff being overcome with fright, and ignorant and unconscious of the great risk thereof, hastily attempted to dismount from said car, and in said attempt was caught between the moving car aforesaid and the car in front thereof, and one of the legs of plaintiff was thereby broken.'

The instructions given by the court which are reported in the abstract are as follows: Instruction No. 1: 'Plaintiff claims that the defendant was possessed of certain electric cars and left them exposed in a public street and with the appliances thereof unguarded and so insecure that the cars might be set in motion by children amusing themselves thereat, the defendant knowing that children were attracted and frequently had been attracted to such cars at the same place, and that plaintiff, being of tender years, seeing the cars so left, yielded to his natural propensity to amuse himself, and resorted thereto, and while playing about the cars the same were accidentally or ignorantly set in motion, and that by this means plaintiff was injured. Plaintiff's claim is that the injury was a permanent one, and will render him always incapable of labor or active movement. Plaintiff seeks to recover not only for this disability, but for the sufferings resulting from his injury.' Instruction No. 2: 'If the jury believe from the evidence that the defendant knowing that its cars were attractive to children and exposed them in a public street unfastened and unguarded, and in such a condition that a child playing thereat might ignorantly or accidentally set the same in motion, and that plaintiff was so inexperienced that he was unconscious of the danger which he incurred by amusing himself at the said cars and resorting thereto, and, by reason of the accidental or ignorant turning on of the current by the plaintiff, or the boy who was with him, the car was set in motion, and plaintiff, endeavoring to dismount therefrom, was injured, the verdict should be for the plaintiff.' Instruction No. 4: 'But the plaintiff is not to be allowed to recover if, upon all the evidence, it appears to you that he was conscious of the hazard and danger of resorting to the cars to amuse himself. But the conduct of plaintiff is not to be measured by the discretion of an adult person. No greater measure of prudence, circumspection, and discretion can be required of him than that reasonably to be expected of a child of the same age, capacity, and experience.'

The facts appear to be that plaintiff, then being 13 years old and a boy of about the same age were playing in the cars of appellant, the one assuming to be motorman, and the other...