Denver & R.G.R. Co. v. Gustafson

• Decision Date: 03 June 1895
• Citation: 21 Colo. 393,41 P. 505
• Parties: DENVER & R. G. R. CO. v. GUSTAFSON. [1]
• Court: Colorado Supreme Court

41 P. 505

21 Colo. 393

DENVER & R. G. R. CO. v. GUSTAFSON. ^[1]

Supreme Court of Colorado

June 3, 1895

Appeal from district court, Arapahoe county.

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

This action was brought by the appellee in the district court to recover from the appellant damages alleged to have been sustained by him through its negligence. The jury returned a verdict for the plaintiff in the sum of $3,000, upon which the court entered judgment. From this judgment the defendant appeals.

The accident occurred about 5 o'clock in the afternoon, in the city of Denver, where Sixth street (along which defendant's railroad is constructed) intersects Market street. From the Union Depot, on Seventeenth street, to a point on its line about two blocks north of the crossing in question, the defendant's road runs in an easterly and westerly course; thence, by a sharp curve, to this crossing in a substantially north and south direction. There were five or six tracks at this street crossing, the west one being owned and used by the Union Pacific Railroad Company, the others by the defendant. A flagman had been stationed at this place for nearly 10 years. He was employed and paid by the Union Pacific Company, and not by the defendant, but during all this time he had flagged trains for the defendant as well as for his employer, and, so far as the public could know the flagman was serving both companies, and protecting their property, as well as guarding travelers along the highway from injury at their hands. The jury, in answer to special questions, found that the crossing was an unusually dangerous one, with which the plaintiff was familiar; that the train was running at a speed of from 15 to 18 miles per hour; but the jury were unable from the evidence to answer as to whether or not the bell on the engine was rung in the vicinity of the accident. Box cars and a locomotive standing on the second, third, or fourth track from the east line of Sixth street and immediately to the north of the north line of Market street would have obstructed plaintiff's view had he been looking in the direction from which the train came; but had he looked he could have seen the approaching train 100 feet away, after such obstructions were passed. The plaintiff was driving two horses, drawing an ice wagon, which was covered with a hood, within which plaintiff was sitting. As he was approaching this crossing, going west on Market street, a freight train from the south passed along one of the tracks and over this crossing, and stopped just north of the north line of Market street, and it formed a part of the obstruction referred to by the jury in their special findings. Plaintiff stopped, about 10 or 15 feet from the track furthest east, till this freight train passed, and, as he says, waited till the flagman signaled him to go ahead. There is conflicting evidence as to the nature of the signal given, as there is upon most of the material questions in issue. Plaintiff himself testifies that, after he stopped and waited for the signal to cross, he neither looked nor listened for approaching trains, but relied solely upon the flagman for a safe transit. It is difficult, if not impossible, to determine how far the plaintiff could have seen to the north had he looked before starting to cross over, and it is uncertain what distance he was from the track on which the train was running just after he passed the obstruction, when he could have seen a train 100 feet away had he looked in that direction. A number of witnesses in the vicinity, about 100 feet distant from plaintiff, testified that as soon as the plaintiff started to cross the tracks they saw the approaching train, and, by calling to the plaintiff, endeavored to stop him before he reached the place of danger. The plaintiff heard the calls, and looked first to the left, then to the right, but before he could check his team the train from the north struck the horses and wagon and threw the plaintiff from the wagon, causing the injuries sued for.

It is error to instruct that plaintiff, if he started across a track on a signal from the flagman, was not guilty of contributory negligence unless he actually saw the train in time to avoid it, and failed to do so; the duty to listen not being referred to.

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

Wells McNeal & Taylor, for appellee.

CAMPBELL, J. (after stating the facts).

There being a substantial conflict in the evidence, the verdict of the jury cannot be disturbed if they were properly instructed as to the law. Assuming, then, that the defendant was negligent, there are but two questions to be considered which are seriously urged by the appellant for a reversal: First, that the defendant is not liable, under the circumstances of this case, for the negligence of the flagman; second, if it is liable, the court erred in instructing the jury that the plaintiff might rely solely upon the flagman, and was not obliged to look or listen for approaching trains, and his failure to do so did not constitute contributory negligence on his part.

1. Employment and payment of a person are not indispensable elements to charge one, as a matter, for the negligence of such one who renders him service. When one knowingly and without objection receives the benefits of labor, or holds out to the public one as engaged in his service, he is liable, as a master, for the negligence of such servant, when the act or failure constituting the negligence comes within the...