Denver & R.G.R. Co. v. Buffehr

• Decision Date: 02 June 1902
• Parties: DENVER & R. G. R. CO. v. BUFFEHR.
• Court: Colorado Supreme Court

69 P. 582

30 Colo. 27

DENVER & R. G. R. CO. v. BUFFEHR.

Supreme Court of Colorado

June 2, 1902

Appeal from district court, Lake county.

Action for personal injuries by Christina Buffehr against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff defendant appeals. Reversed.

The complaint attempts to state a cause of action based on acts of the defendant showing wanton, willful, and intentional misconduct. The answer is a general denial and a plea of contributory negligence by plaintiff. The evidence is not voluminous or substantially conflicting. The statement of the parties is accepted as to the case thereby made, with such additions from the record as the court deems material. On the 6th of September, 1895, appellant railroad company owned and operated a line of railroad which passes through the town of Glenwood Springs, Colo. Its passenger station is at the corner of Pitkin avenue and Seventh street, whence the track easterly therefrom runs on a curve diagonally across Seventh street, leaving it a block east of the station, from which point on eastward the track is entirely upon private property of the appellant, except at the crossing of Grand avenue which is about 600 feet east of the railway station. The track crosses Grand avenue, passing under a large wagon bridge which there spans Grand river. The approach to this bridge leaves Grand avenue at a point about half a block south of its intersection with Seventh street, and passes thence over Seventh street, the railroad track, and Grand river. Immediately underneath this wagon bridge is a foot bridge, the southern approach to which begins between the railroad track and the river bank. These two bridges afford practically the only means of access between the town of Glenwood Springs proper and the Hotel Colorado, which, with its baths and other improvements, is located on the northern side of the river. Travelers using the foot bridge in coming from the northern to the southern side, on their way to the town proper, necessarily cross the railroad track on Grand avenue at grade. For the convenience of its passengers,--not only those whose destination is the Hotel Colorado, but those going into the business portion of the town,--the company at times stops its trains at Grand avenue, and there has erected a platform about 8 feet wide, and extending upon its private property about 190 feet easterly from Grand avenue. The level of this platform is lower than that of Seventh street, and three flights of steps have been erected,--one at each end and one in the middle,--leading up from the platform to Seventh street. There are no buildings or improvements of any kind between the railway track and the river, and the land between Seventh street and the river from the railway station for several blocks east of Grand avenue is the private property of the company. Some distance east of Grand avenue and between the railroad track and the river, is a cave, in which is a hot spring, to which persons resort for bathing. Seventh street and the public road into which it merges at the eastern limit of the town lead directly to this cave, but at certain seasons of the year the railroad track affords better walking than the street or the sidewalks, and persons going to the cave frequently go upon or alongside of the railroad track. The plaintiff in this case claims that this custom had existed for so long a time and was so general that the public acquired a right to use the tracks and right of way of the railway company as a highway in passing from Grand avenue to the cave. The defendant denies that any such right was thereby acquired, and says that persons so using its track are mere trespassers. The uncontradicted facts in the case are that, while the tracks had been used as a passageway for the general public, it was against the repeated protests of the agents of the railroad company, and that signposts had been by the company put upon its right of way, warning persons against entering and crossing the company's tracks, or using the property for their own convenience. On the morning of September 6th, appellee, a resident of Leadville, had been on the north side of the river, in the vicinity of the Hotel Colorado. She returned to the south side by the foot bridge, apparently intending to return to her place of temporary abode in the town. On arriving at the railroad track, where it crosses Grand avenue, she concluded to go to the cave east of the town and south of the river and, with that object in view, turned eastwardly from Grand avenue and walked along and upon the railroad track of the defendant, between the rails. By continuing along or upon Grand avenue a few rods further south, plaintiff would have reached Seventh street, and might have continued her journey to the cave by walking on that thoroughfare, free from all danger from defendant's trains. This, however, she elected not to do. Before stepping onto the track she says that she looked along it in both directions, and although there was an unobstructed view from the point where she was standing to the passenger station of the defendant, 600 feet away, where was then standing the passenger train that afterwards collided with her, she says that she did not see it. After walking a few steps on the track, as the day was warm and the sun shining, she raised an umbrella over her head and rested it on her shoulder, and without looking back, or keeping any watch, or using any of her senses for the purpose of ascertaining whether or not trains were approaching her from either direction, thus continued between the rails for a distance of about 150 or 160 feet, when she was struck by the passenger train, which came up behind her, and caused the injuries for which she sues. The engineer did not see plaintiff on the track, and did not know of the accident until his train reached some station farther east, though he maintains that a lookout was kept while passing through the town. There is an ordinance of the town which requires a flagman to be stationed at every railroad crossing, or other suitable precaution to be taken against injury to persons and property in the operation of railroads; and there is a further requirement that no locomotive or train shall be run at a speed to exceed eight miles an hour within the town limits, and the bell attached to the locomotive is required to be rung while running therethrough. No evidence was produced by plaintiff as to the speed at which the train was running, only one of her witnesses saying 'it looked as if it ran pretty swift.' The testimony of a number of witnesses for the defendant was that the speed did not exceed six miles an hour. Some of plaintiff's witnesses testified that there was no sounding of the whistle or ringing of the bell, others said they did not remember whether the bell was rung, while the testimony of the fireman and engineman was that the bell was continuously rung from the station till the limits of the town were passed, and the whistle was sounded on approaching street crossings. The foregoing we think is a fair summary of the material points of the evidence, in so far as it affects the questions raised upon the appeal.

Walcott, Vaile & Waterman (W. W. Field, of counsel), for appellant.

James Glynn and Clinton Reed, for appellee.

CAMPBELL, C.J. (after stating the facts).

Numerous errors are assigned, relating chiefly to the instructions of the court. The important questions discussed are: Was the plaintiff a licensee or a trespasser? Was the plaintiff guilty of negligence that directly or proximately contributed to the injury? Was the defendant guilty of what plaintiff characterizes as gross or willful negligence? Or speaking more accurately, was the conduct of defendant such as indicated a willful or malicious intent to inflict injury? We do not notice in detail the objections raised, but shall discuss and lay down the principles by which this controversy should be determined.

1. The negligent acts or mischief charged against defendant in the complaint as constituting the sole proximate cause of the injury are that its servants did not give any warning of the approach of the train, and that its speed was greatly in excess of the limits prescribed in the town ordinance. As we read the complaint, these, and these only, are the particulars as to which defendant is said to have been remiss. The court, however, submitted this branch of the case upon the alleged negligence of the engineman in not seeing plaintiff upon the track, or in failing to keep an outlook in front of his engine, as it was said to be his duty to do in the circumstances of this case. There was objection to this and the court should have confined the case to the issues made by the pleadings.

2. Under the facts of the case before us, we do not consider it very important whether plaintiff was a trespasser or a licensee, though the latter may, as a general rule be entitled to more consideration...