Denver City Tramway Co. v. Hills

• Decision Date: 03 April 1911
• Citation: 116 P. 125,50 Colo. 328
• Parties: DENVER CITY TRAMWAY CO. v. HILLS.
• Court: Colorado Supreme Court

116 P. 125

50 Colo. 328

DENVER CITY TRAMWAY CO. v. HILLS.

Supreme Court of Colorado

April 3, 1911

Rehearing Denied June 5, 1911.

Appeal from District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by Henry A. Hills against the Denver City Tramway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles J. Hughes, Jr., Gerald Hughes, and Howard S. Robertson, for appellant.

James H. Pershing and William E. Hutton, for appellee.

HILL J.

Appellee brought this action against appellant to recover for personal injuries which he received while in the act of alighting from one of its cars. The jury found for appellee and fixed his damages at $3,500, from which this appeal is prosecuted.

The evidence shows that the appellee entered one of the appellant's street cars at the corner of Glenarm and Seventeenth streets, in the city of Denver, taking his seat in the rear, or next to the rear seat, at the back end of the car, intending to ride down Seventeenth to Market street near where his place of business was situate. When approaching the last-named street, the appellee gave the necessary signal for the car to stop, the conductor responded, and the car proceeded to slow down and had come to, or nearly to, a standstill at the time the appellee attempted to alight. The evidence is conflicting as to whether the car had stopped or was still very slightly in motion. The car was inclosed in the center and open at each end. The rear seats, where the appellee was sitting, extended the full width of the car, and there were long steps upon each side of the car where these seats were for ingress and egress to these seats and the other parts of the car. At the time the appellee was stepping down to get off of the car, a rope, partially coiled, was lying upon the floor of the car in front of this seat, or on the steps where the appellee stepped down in getting off the car. The result was that in alighting in some manner this rope (which was quite light) became entangled around one of appellee's feet as he stepped from the car. The car immediately started or increased its speed. The appellee's feet were jerked from under him by this rope, and he was dragged some distance, by which accident he received the serious injuries complained of. It developed further that this rope was fastened to, or was a part of, the trolley rope used in holding the trolley upon the wire overhead. It was not in the place where it belonged, and the conductor, even in the exercise of ordinary care, could have ascertained that fact. No explanation was furnished upon behalf of the company or otherwise as to how it got in the place or position where it was at the time of the accident. It is not disclosed whether it was through a defect of the appliances used in connection with the operation of this trolley rope, or in the negligence of the employés of the company, that it became unfastened after it was last changed, if it had then been so fastened or otherwise, in order to reach this unusual position where it never belonged, and where it became a menace to the safety of passengers.

A large number of the assignments of error pertain to a motion of the appellant for a directed verdict in its favor, the admission and rejection of certain evidence, the giving and refusal to give certain instructions, all of which are along the same line, and are covered by the same principles of the law, and will be considered together. It is claimed that the doctrine of res ipsa loquitur is not applicable to the facts for the following reasons: (a) That the relation of carrier and passenger did not exist when the accident occurred; (b) that the accident was not due to any defect in the roadbed, machinery, appliances, or equipment of the appellant, nor to any failure upon its part to provide a proper place for the disposal of this trolley rope; (c) that the appellee at the time of the accident was not passive and under the control of the appellant, but was engaged in attempting to get off this car, and that his own voluntary act might just as reasonably have contributed to the injuries. Referring to this last, counsel say: 'It is just as probable that this accident should happen without any neglect upon the part of the appellant as it is that it was due solely to negligence upon its part; in other words, intervening agencies might just as reasonably have been responsible for its occurrence.' Had the injury occurred through the intervention of anything else upon the street after the appellee had alighted, not connected with the car which he was then attempting to leave, and over which the employés of the appellant in charge of this car had no control, the contention of counsel might be applicable but that is not the fact here.

In the case of Atchison, etc., R. Co. v. Shean, 18 Colo. 368, this court, at page 371, 33 P. 108, at page 109 (20 L.R.A. 729), quotes with approval from Pennsylvania Railroad Co. v. White, 88 Pa. 333, the following: 'It is the duty of the company to provide for the safe receiving and discharging of passengers. It is bound to exercise the strictest vigilance not only in carrying them to their destination, but also in setting them down safely if human care and foresight can do so.' As well said by the Court of Appeals of Missouri in the case of Senf v. St. Louis & Suburban Railway Company, 112 Mo.App. at page 85, 86 S.W. at page 891; 'The relation of carrier and passenger does not end until the passenger is off the car and on the street in safety. O'Brien v. St. Louis Transit Co. , 84 S.W. 939 [105 Am.St.Rep. 592]; Fillingham v. St. Louis Transit Co., 102 Mo.App. 573, 77 S.W. 314; Lehner v. Railway , 85 S.W. 110; Richmond Street Railroad Co. v. Scott, 86 Va. 902 [11 S.E. 404]. To the same effect is the case of Spangler v. Saginaw Valley Traction Company, 152 Mich. at page 411, 116 N.W. at page 375, where that court said: 'It would be a narrow application of the rule to hold that the carrier's duty was in all cases performed if a passenger reached and stood upon the surface of the street in safety. If a passenger alighted in the night, in a dark place, at a point where a step made in any direction would be into an excavation made by the carrier in a street, the surface of which had been theretofore smooth and comparatively level, the existence of the excavation being unknown to the passenger, it would be doing violence to terms to say that the car was stopped and the passenger invited to alight at a proper place, or that the passenger had safely alighted.' We cannot agree to the correctness of the argument of counsel wherein they contend that this passenger was set down safely because he got both feet squarely upon the ground, when, as a matter of fact, a rope fastened to the car with a noose in one end of it was on the platform or steps, and in his alighting, without negligence on his part, it got fastened about his leg and was still connected with it when he stepped upon the street. Our views from the facts disclosed are that the appellee had not ceased to be a passenger of the appellant, and that such relation did not cease so long as, under the circumstances here shown, he had, through the negligence of the appellant, anything attached to him connected with this car, which, when it started, would tend to take him with it.

The appellee was a large portly man. When standing upright he could not observe the condition of his feet, nor the danger to them from the rope. There is no evidence to show that he failed to exercise reasonable diligence as to any danger which he might reasonably expect. His testimony is positive to the fact that he did not know of the existence of the rope nor of the danger until after the accident had occurred. Under these circumstances, only one conclusion could have been reached, that the company had not yet complied with its duty in respect to his leaving the car, or given him an opportunity to safely alight therefrom. In the case of Kansas Pacific Railway Co. v. Miller, 2 Colo. at page 457, this court said: 'The presumption of negligence however, does not attach itself to every injury which may overtake a passenger while being transported in a car. It belongs only to that class of accidents where the injury is caused by a defect in the road, cars, or machinery, or by want of diligence or care in those employed, or by some other thing which the company can and ought to control.' Applying this principle to the case under consideration, a trolley rope is something which a tramway company can and ought to control. Wall et al. v. Livezay, 6 Colo. 465; Sanderson v. Frazier, 8 Colo. 79, 5 P. 632, 54 Am.Rep. 544; Western Md. R. Co. v. Shivers, 101 Md. 391, 61 A. 618; Montgomery Street Ry. Co. v. Mason, 133 Ala. 508, 32 So. 261. We conclude that the doctrine of res ipsa loquitur is applicable to the facts here. Melton v. Birmingham Ry., L. & P. Co., 153 Ala. 95, 45 So. 151, 16 L.R.A. (N. S.) 467; Hutchinson on Carriers (2d Ed.) § 651; Denver Con. Tramway Co. v. Rush, 19 Colo.App. 70, 73 P. 664; McDonnell v. Chicago City Ry. Co., 131 Ill.App. 227; D. & R. G. R. Co. v. Hodgson, 18 Colo. 117, 31 P. 954. We cannot agree with the appellant that the evidence introduced by it was sufficient to overcome any presumption raised in the appellee's favor, when he showed the conditions under which the accident occurred and the result. In this respect counsel contend that the evidence disclosed the fact that this car was being run from the Union Depot up Seventeenth street to somewhere above the Brown Palace Hotel near Broadway, where it switched to the opposite track on the same street and made the return trip to the depot, at each of which points the trolley rope and pole were reversed, which necessitated the loosening of...