Denver Consol. Tramway Co. v. Rush

• Decision Date: 14 September 1903
• Citation: 19 Colo.App. 70,73 P. 664
• Parties: DENVER CONSOL. TRAMWAY CO. v. RUSH.
• Court: Colorado Court of Appeals

73 P. 664

19 Colo.App. 70

DENVER CONSOL. TRAMWAY CO. v. RUSH.

Court of Appeals of Colorado

September 14, 1903

Appeal from District Court, Arapahoe County.

Action by Mary G. Rush against the Denver Consolidated Tramway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

A.M. Stevenson, Chas. J. Hughes, Jr., and Albert Smith, for appellant.

H.W Spangler, George C. Norris, and Emerson J. Short, for appellee.

GUNTER J.

Seven errors are assigned. But two are discussed by appellant's counsel, and to these we confine the opinion.

1. Appellant (defendant) tendered an instruction which was refused. It says the instruction, in substance, charged that if appellee (plaintiff) was not injured, she could not recover. Assuming this, the instruction was given in substance in instructions 2 and 3, wherein the sustaining of an injury through the accident was made essential to recovery.

2. It is further urged that the evidence is insufficient to justify the verdict. The evidence for appellee (plaintiff) is, in substance: Appellant, as a common carrier, was operating a street railway system in the city of Denver, using electricity as the motive power. Appellee, having paid her fare, was a passenger on one of its cars. The car stopped at a regular crossing for her to alight. While she was doing so the car suddenly started, and by doing so threw her to the ground. Therefrom she sustained injuries, compensation for which is sued for. There was also expert testimony in her behalf that her injured condition was caused by a fall or a concussion of some kind, due to some external violence; also to the extent of her injuries. In making out her case, there was no evidence tending to show contributory negligence. The only testimony conflicting with that in behalf of appellee is that of the conductor that no one fell on that day in alighting from his car, and of experts that appellee's injured condition was not due to a fall, and as to the extent of her injuries. The position of appellant was that she had not fallen from the car, and that she was not injured by such cause. Appellant attempts no explanation of the cause of the sudden starting of the car, or of the cause of appellee's falling. The evidence of appellee that defendant, as a common carrier of passengers, was operating a street railway, with motive power (electricity) that appellee was a passenger thereon, having paid her fare and that the car had stopped for her to alight; that while she was doing so, and free from contributory negligence, the car started up suddenly, and thereby she was thrown to the ground and injured--raised the presumption of negligence on the part of defendant, and constituted sufficient evidence thereof to justify sending the case to the jury. The starting up and moving on of the car before plaintiff could or did alight would not ordinarily have happened, had appellant been using the high degree of care exacted of it by the law in its carrying passengers. The operating of the car was under the control of the appellant; and the explanation of the cause of the sudden starting of the car, presumably within its knowledge and capable of explanation by it. There was thus sufficient evidence to go to the jury that appellee sustained her injuries through the act of appellant, and that such act was negligently done. In Christie v. Griggs, 2 Campbell, 79, approved Wall et al. v. Livezay, 6 Colo. 465, and Sanderson v. Frazier, 8 Colo. 84, 5 P. 632, 54 Am.Rep. 544, the action was against the owner of a stage upon which appellant was traveling, when it broke down and she was injured. The first count imputed the accident to the negligence of the driver, the second, to the insufficiency of the carriage. The plaintiff having complained that the axletree snapped asunder, and that she was consequently thrown from the stage and injured thereby, defendant insisted that plaintiff was bound to go further, and give evidence of the driver being unskillful and of the stage being insufficient. The court said: "I think the plaintiff has made a prima facie case by proving her going on the coach, the accident, and the damage she has suffered. It now lies on the other side to show that the coach was as good a coach as could be made, and that the driver was as skillful a driver as could anywhere be found. ***" In Stokes v. Saltonstall, 13 Pet. 181, 10 L.Ed. 115, approved Wall et al. v. Livezay, supra; Sanderson v. Frazier, supra; and Denver & Rio Grande Railroad Co. v. Fotheringham (Colo.App.) 68 P. 978--the wife of the plaintiff was a passenger on the stage, and injured by its upsetting. The action was against the proprietor of the stage to recover damages. The lower court charged, inter alia: "It being admitted that the carriage was upset and the plaintiff's wife injured, it is incumbent on the defendant to prove that the driver was a person of competent skill, of good habits, and in every respect qualified and suitably prepared for the business in which he was engaged, and that he acted on this occasion with reasonable skill, and with the utmost prudence and caution. ***" This was approved upon appeal. The upsetting of the stage was due to the manner in which it was operated and the horses handled by the driver. In Wall et al. v. Livezay, plaintiff was a passenger on the stage of defendant. The horses became frightened at the whistle of an engine and overturned the stage. There was no insufficiency in the stage or harness. The driver had left the horses in the hands of a bystander while he buckled the hind boot of the stage. The jury found for plaintiff, and, in affirming, the court said: "A prima facie case, however, is made out by proof that the relation of carrier and passenger existed between the parties; that an accident occurred, resulting in injury to the passenger; and that it was occasioned by the failure of some portion of the machinery, appliances, or means provided for the transportation of the passenger. This proof being made, a presumption of negligence on the part of the carrier arises, and the plaintiff is not bound to go further and show the particular defect or cause of the accident, until the presumption is rebutted." In Sanderson v. Frazier, plaintiff was a passenger on a stage that was upset by the wheel striking a rock, and by the upsetting plaintiff was injured. Negligence in the driver was charged. In the course of the opinion affirming the judgment for plaintiff, the court said: "In such action the facts that the coach was upset and the plaintiff injured are sufficient prima facie evidence of negligence or want of skill of the driver, and shift the burden of proof upon the defendant to show that the driver was in every respect qualified to act with reasonable skill and the utmost caution; and, if the disaster was occasioned by the least want of skill or of prudence on his part, the defendant was answerable." In Rio Grande W. Co. v. Rubenstein, 5 Colo.App. 121, 123, 38 P. 76, the court said: "The general rule undoubtedly is that the passenger who shows that he is being carried for hire, and that the vehicle overturns and occasions his injury, has made out a prima facie case. The legal presumption, in actions of this description, is that the injuries are occasioned by the fault of the carrier or the condition of its vehicles, and the law casts on it the burden of showing that it has used reasonable care and skill to provide safe appliances and a safe road for...