Denver & R.G.R. Co. v. Vitello

• Decision Date: 05 June 1905
• Citation: 34 Colo. 50,81 P. 766
• Parties: DENVER & R. G. R. CO. v. VITELLO. [*]
• Court: Colorado Supreme Court

81 P. 766

34 Colo. 50

DENVER & R. G. R. CO. v. VITELLO. ^[*]

Supreme Court of Colorado

June 5, 1905

Appeal from District Court, Arapahoe County; S. L. Carpenter, Judge.

Action by Rosa Vitello against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Wolcott, Vaile & Waterman and W. W. Field, for appellant.

Carlton Skelton & Morrow, for appellee.

BAILEY J.

Before considering the merits of the exceptions made by appellant it may be well to state that something like two years after appellee had filed her written brief she filed a supplemental brief, wherein she claimed that the record and the abstract in this case are in such condition that the case cannot be reviewed, because: First. The motion to suppress the Farnum deposition is not before the court, for the reason that it is not incorporated in the bill of exceptions. Second. The sufficiency of the evidence cannot be considered, because the bill of exceptions does not include the depositions of certain of the witnesses, and because the Exhibits 1 to 6 are not attached to and made a part of the abstract.

It is not necessary to determine whether the motion to suppress the deposition of Farnum became a part of the record proper, or should be incorporated in the bill of exceptions, because the deposition, together with the objections made to it, appear both in the record proper and in the bill of exceptions. The same is true as to the depositions of Jesse T. Campbell, Axel Borg, John Lynch, and J. Kinney.

As to the exhibits, it affirmatively appears in the bill of exceptions that they were attached to and made a part of the bill of exceptions. These exhibits are photographs, which are somewhat unwieldy, and could not be conveniently inserted in the bill of exceptions in the order in which they were introduced, but, as stated therein, are attached to the same and properly identified. Counsel makes a further objection that these exhibits and depositions may not be considered by the court, because the exhibits are not incorporated in the abstract, and because only a portion of each deposition is incorporated in the abstract. This court has repeatedly held that it is not bound to go to the bill of exceptions in search of evidence; but it has at no time said that in a proper case, in its discretion, it may not do so if it desires more full information than appears in the abstract; and while we do not propose to relax this rule, yet in this particular case we do not see that any great burden is imposed upon the court to examine the bill of exceptions and inspect the photographs which could not be conveniently abstracted. Our opinion is that the contentions made by appellee in her supplemental brief are without merit, and we will now proceed to review the principal case.

In May 1901, appellant was operating a freight train which left Minturn and ran eastward to Red Cliff. At Red Cliff four cars and a caboose were left standing on the main track while the engine went forward in charge of the conductor and two of the brakemen to do the necessary switching. The rear brakeman, an old and supposedly competent employé, was left with the five cars remaining upon the main line. From Red Cliff to Belden Siding there is a grade, Belden Siding being lower than Red Cliff. The five cars remained standing on the track from 15 to 25 minutes. After remaining with the cars for a time, the rear brakeman left them. While he was absent, the cars, for some reason which has not been explained, began to move westward, and, being upon or soon reaching a downgrade, they ran with a constantly accelerating speed toward Belden Siding. At Belden Siding a gang of trackmen, among whom was Vito Vitello, the husband of appellee, were engaged in removing a mud and rock slide which had come down upon the track from the mountainside, which was quite steep, and extended in the neighborhood of 1,500 feet above the tracks.

The slide had occurred so recently before that during the time the men were working there, according to one witness, rocks were constantly rolling down the hill. At this point the valley of Eagle river is very narrow. Practically all of the level space between the mountain on one side and the river on the other is occupied by the tracks, which were laid on a curve, the outer or convex side of which was toward the mountain, and the inner or concave side toward the river. The approach of the cars was detected by the trackmen while they were 800 or 900 feet distant. The foreman called to his men to leave the track and come down to the edge of the river on the inside of the curve. Some of the men followed his advice, and others, including Vitello, started toward the outside of the curve. Upon reaching the curve, two of the cars were derailed, some 200 or 300 feet from the men, and the other three, including the caboose, continued to within about 100 feet of the point at which the men had been working, and there two of them left the track, going toward the outside of the curve. The caboose remained upon the track. These two cars ran along the ground in the neighborhood of 100 feet, and one of them passed the point at which the men were. When the cars stopped, and the trackmen returned to the point of the wreck, Vito Vitello was found lying dead between the main track and the side track. The evidence shows that he was injured on top of the head, which was broken. No person appears to know, or at least there was no testimony, as to just how this wound was received. No person saw him struck, and the cause of his death was one of the issues in the case. The appellee, who was Vitello's widow, brought suit against the appellant to recover damages for the death of her husband. The action was brought under the employers' liability act of 1893. Acts 1893, p. 129, c. 77.

The instructions of the court were in part as follows: 'This action is brought under a statute of this state, the first section of which, omitting those parts which are not brought in question here, is as follows: 'Where, after the passage of this act, personal injury is caused to an employé, who is himself in the exercise of due care and diligence at the time: * * * (3) By reason of the negligence of any person in the service of the employer who has the charge or control of any switch, signal, locomotive engine or train upon a railroad, the employé, or in case the injury results in death, the parties entitled by law, to sue and recover for such damages, shall have the same right of compensation and remedy against the employer as if the employé had not been an employé of, or in the service of the employer, or engaged in his or its work.' It appears from the undisputed evidence in this case that a freight train of the defendant company was run into the station yard at Red Cliff, in this state, on the morning of May 2, 1901; that at said station the engine was detached from the train for use temporarily in the yard there in moving other cars, leaving the cars which it had brought into the Red Cliff station yard standing upon the main track. The cars so left standing upon the main track were five in number--four freight cars and a caboose or way car. The main track of the defendant company at the place where the said cars were left standing was not level, but inclined downward in the direction of the place where the husband of the plaintiff was working as a sectionman, and it was downgrade the whole of the distance between these two points, namely, Red Cliff station yard, where the cars were left standing, and the place where the plaintiff's husband was working, the distance being in the neighborhood of 1 1/2 or 2 miles. Some few minutes after the locomotive had been detached at Red Cliff, and while it was in use in another part of the station yard there, the cars left standing upon the main track began to move in the direction of Belden switch. They had attained great velocity as they neared the latter point, and two of the cars left the rails near the place where the plaintiff's husband was working, struck and killed him.' 'There are two important questions to be determined by you, both of which must be resolved against the defendant company to entitle the plaintiff to recover: First. Was the escape of the cars at Red Cliff station caused by the negligence of the defendant or any of its servants? If the first question is resolved by you against the defendant, then it will be your duty to determine, second, whether such negligence was the negligence of a person who had charge or control of the train in question.' 'Evidence has been produced before you on behalf of the plaintiff tending to show that it belonged to the conductor of said train to see that proper precautions were taken to prevent the escape of said cars; and if you find from the evidence, by a preponderance thereof, that the conductor of said train was, by the rules and practices of the defendant company, charged with such duty, and that he failed in respect thereto, and that by reason of such failure the said cars escaped, then the plaintiff has brought herself within the terms of the statute which I have read to you, and she is entitled to recover, provided her husband was at the time the cars struck him in the exercise of due care and diligence. On the other hand, if you find from the evidence that the duty of securing the safety of said cars while standing upon said track at Red Cliff, and the prevention of their escape, rested upon a brakeman, and that the conductor was charged with no duty in respect thereto, then the plaintiff is not within the statute and cannot recover.'

After the jury had been considering its verdict for 24 hours, in answer to an interrogatory from the court the foreman stated that the jury...