Denver & R.G.R. Co. v. Spencer

• Decision Date: 21 May 1900
• Citation: 61 P. 606,27 Colo. 313
• Parties: DENVER & R. G. R. CO. v. SPENCER et al.
• Court: Colorado Supreme Court

61 P. 606

27 Colo. 313

DENVER & R. G. R. CO. v. SPENCER et al.

Supreme Court of Colorado

May 21, 1900

Appeal from district court, Arapahoe county.

Action by Henry C. Spencer and others against the Denver & Rio Grande Railroad Company. From a judgment for plaintiffs defendant appeals. Reversed.

This action was commenced by the appellees to recover damages for the death of their father, caused by the alleged negligence of the appellant. From a verdict and judgment in their favor the defendant appeals.

Wolcott & Vaile and Henry F. May, for appellant.

N. Q Tanquary, for appellees.

GABBERT J.

At the station of Colorado Springs appellant maintains several parallel tracks. At the time deceased received the injuries resulting in his death, one of these tracks, adjacent to the station proper, was occupied by a Rock Island trian, which was 'cut' to allow access to trains arriving on tracks beyond. Employés of appellant left a truck, used for handling baggage, between the track occupied by the Rock Island train and the one next beyond, so situate, it is claimed, that trains upon each of the tracks between which it was placed would clear it. When these tracks were each occupied by trains, the space between the sides of the cars would be 5 feet 8 inches in width. The width of the truck was such that, if placed equidistant between the two tracks, it would clear the trains upon each by 1 foot and 7 inches. The space between these tracks where the truck was placed was used by appellant to receive and discharge passengers. The deceased went upon this space for the purpose of meeting his daughter-in-law, whom he expected upon one of appellant's trains, which arrived over the track next to the truck, and next to the one upon which the Rock Island train was standing. He was moving up and down this space, in the near vicinity of the truck, when the expected train arrived. The engine, baggage, and smoking cars cleared the truck, but for some unexplainable cause, other than the inference that it must have been moved by some one, the next, though no wider than those that had passed, did not, but hurled it against deceased, inflicting injuries from which he shortly expired. He was seen to have passed and repassed this truck before the arrival of appellant's train. The truck was noticed by the engineer and fireman of the incoming train, who concluded that their train would clear it. The engineer also noticed people in the vicinity of the truck. It was so constructed that it could be easily veered at either end. Upon this state of facts, counsel for appellant contend that no negligence upon its part has been shown, and, even if there was, the accident would not have happened but for the negligence of the deceased.

The first question presented is, was the placing of the truck between the tracks in the limited space provided, and in the immediate vicinity of where the trains of appellant received and discharged passengers, negligence? Although originally so placed that a moving train upon either track next to which it stood would clear it, yet its construction was such that it could be easily veered, when its position would be such that it would come in contact with a moving train. This would result in danger to those within that space, in line with the direction the truck would be impelled by contact with a moving train. From these facts and circumstances, the jury concluded that appellant was guilty of negligence. When the question of negligence is dependent upon inferences to be drawn from acts and circumstances of that character that different intelligent minds may honestly reach different conclusions on the question, it is for the jury to determine, under appropriate instructions, whether or not negligence has been established. Lord v. Refining Co., 12 Colo. 390, 21 P. 148; 2 Thomp. Neg. 1236; Railroad Co. v. Martin, 7 Colo. 592, 4 P. 1118; Shear. & R. Neg. § 11; Packing Co. v. Vaughn, 26 Colo. ----, 59 P. 749. Under this rule, the evidence is clearly sufficient to support the conclusion of the jury that placing the truck between the tracks was negligence on the part of appellant.

The next question presented is whether or not deceased was guilty of negligence, but for which the accident would not have occurred. In this connection counsel for appellant make some suggestions relative to the comparative degrees of care which a carrier is required to exercise as between passengers and those who are not. We do not believe it is necessary to go into a discussion of this question. Deceased was lawfully at a place provided by appellant for the purpose for which he was there, at the proper time to carry out that purpose; and injuries received by him at this place through the negligence of it employés, while in the exercise of due care and caution upon his part, appellant is responsible for. Hamilton v. Railway, 64 Tex. 251; Pierce, R. R. 275; Tobin v. Railroad Co., 59 Me. 183; Railroad Co. v. Mushrush (Ind. App.) 37 N.E. 954.

It is urged by counsel that, as deceased must have seen the truck he should have comprehended the situation, realized the danger to which he was exposed, could have avoided it, and, having failed to do so, such failure was contributory negligence upon his part, which caused the accident. When, on the question of contributory negligence, the facts and circumstances are such that different minds may honestly draw different conclusions therefrom on this subject, it is within the province of the jury to determine that question. Railroad Co. v. Twombly, 3 Colo. 125; Lord v. Refining Co., supra; Moffatt v. Tenney, 17 Colo. 189, 30 P. 348; Tramway Co. v. Reid, 22 Colo. 349, 45 P. 378. While, on the other hand, if the undisputed facts are such that the inference of contributory negligence is the only conclusion which can be logically deduced, the question is one of law, for the court. For the purpose of ascertaining whether or not, on the extablished facts, deceased was so clearly guilty of negligence that this question is one of law alone, or whether, from the evidence, it was for the jury to determine, as a matter of fact, it is only necessary to refer briefly to the evidence, and the acts of the employés of appellant. If the presence of the truck, in the position it was, should have at once suggested to the mind of an ordinarily prudent person that it was liable to come in contact with the incoming train, then certainly it would have been the duty of the engineer and fireman, who were aware of its location, and who knew that persons were in its immediate vicinity, to have taken steps to prevent such a disaster, and their failure to do so would have been wantonly reckless conduct upon their part. When this case was here before (25 Colo. 9, 52 P. 211), it was held, upon evidence which is substantially the same as now presented by the record in the case at bar, that an instruction to...