Denver & R. G. R. Co. v. Burchard

• Decision Date: 08 January 1906
• Citation: 35 Colo. 539,86 P. 749
• Parties: DENVER & R. G. R. CO. v. BURCHARD.
• Court: Colorado Supreme Court

86 P. 749

35 Colo. 539

DENVER & R. G. R. CO. v. BURCHARD.

Supreme Court of Colorado, En Banc.

January 8, 1906

On Rehearing, March 5, 1906.

Appeal from District Court, Arapahoe County; John I. Mullins, Judge.

Action by Adella Burchard against Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed on rehearing.

Wolcott, Vaile & Waterman, E. N. Clark, W. W Field, and Wm. N. Vaile, for appellant.

John H Murphy and Stuart & Murray, for appellee.

GUNTER, J.

This was an action by appellee to recover damages for the death of her husband, due, as it is alleged, to the negligence of appellant. From a verdict and judgment for appellee is this appeal.

The negligence charged was the location and maintenance of a mail crane in unnecessary and dangerous proximity to the road of appellant, and in the failure to notify deceased of such dangerous proximity. The answer denied the alleged negligence, and averred contributory negligence. At the close of the evidence for appellee, appellant moved a directed verdict. This was denied.

1. Appellant says there was error in this ruling because of the absence of evidence tending to show negligence. Deceased was employed as a fireman on a mail train running on the road of appellant. As the train was going through a station, and after it had passed the depot and signal board, but some feet before it had reached a mail crane located about 180 feet north of the station, deceased projected his head from the window of the engine cab and looked back, and while so occupied his head came into collision with the extended arm of the crane, causing the fatal injuries complained of. At the time of the accident the mail sack was suspended from the arm of the crane. When the motion for a directed verdict was made, the evidence tended to show that the crane in question was located so near the track that when its arms were extended for suspending the mail sack an arm came within 4 1/2 inches of the window of the cab of the engine; also that the crane was located from 13 to 20 inches nearer the track than was necessary to its efficient operation and that therefore the end of the arm was from 13 to 20 inches nearer the cab than was reasonably necessary; also that such unnecessary nearness of the crane was the proximate cause of the accident. There was also evidence tending to show that cranes of similar construction on other roads were located so as to bring the end of the arm not nearer than from 13 to 20 inches to the window of the cab, and that such cranes accomplished efficiently the purposes of their construction. To sum up, the evidence at the close of appellee's case in chief tended to show that appellant was guilty of negligence in having located its crane unnecessarily near the track, that thereby it unreasonably and unnecessarily endangered the lives of its employés, and that such unnecessary proximity of the crane was the proximate cause of the death of the deceased.

The law applicable to such a state of the evidence has been announced in what is known as the 'Mail Crane Cases.' In C., B & Q. R. Co. v. Gregory, 58 Ill. 272, decided 1871, a fireman was killed by collision with the arm of a mail crane. The negligence charged was the unnecessary proximity of the crane to the track. There was evidence that the crane was located nearer the track than reasonably necessary for its efficient operation, and that the fatality was due to such unnecessary proximity. The court held the defendant liable because guilty of negligence in unreasonably endangering the lives and safety of its employés by locating the crane unnecessarily near the track. It further held that the court was right in submitting to the jury a defense of contributory negligence. Sisco v. L. & H. R. Ry. Co., 145 N.Y. 296, 39 N.E. 958, decided 1895, was an action to recover damages for fatal injuries sustained by a brakeman through collision with the arm of a mail crane. Deceased, while climbing a ladder, on the outside of a box car, to set a brake, came in collision with a mail crane. The undisputed evidence was that the clearance between the end of the arm and the car was 12 inches; that the crane would not operate if further removed; that the crane was identical in construction and relative location to the track with other cranes along the line of the road. The judgment for plaintiff was reversed, because it had not been shown that the defendant was guilty of negligence; that is, it had not been shown that by the exercise of reasonable care defendant could have rendered the appliance less dangerous and retained its efficiency, by its location further from the track. In International & G. N. R. Co. v. Stephenson (Tex.Civ.App.) 54 S.W. 1086, decided in 1899, an engineer was struck by a mail crane. The charge was negligence in locating the crane too close to the track. The evidence showed the arm of the crane came within 10 inches of the cab of the engine, that the arms of other cranes on the road did not come nearer than from 17 to 19 inches, that the crane would operate efficiently when so located that the extended arm cleared the cab by from 17 to 19 inches. On the principle that the defendant was guilty of negligence in locating the crane unnecessarily near the track a verdict was upheld. The question of assumed risk, it was held, was properly put to the jury, because, said the court, 'it could not declare as a matter of law that the plaintiff knew how dangerously near the arm of the crane came to his cab, nor was such fact obvious.' Malott, Receiver, v. Laufman, 89 Ill.App. 178, decided in 1899, was an action to recover damages for fatal injuries sustained by a fireman through collision with a mail crane. The crane, on account of being out of repair, leaned unnecessarily near the track. Liability was declared because of the negligence in permitting the crane, from lack of repair, to incline too near the track. L. & N. R. Company v. Milliken's Adm'r (Ky.) 51 S.W. 796, decided 1899, was to recover for fatal injuries sustained by a brakeman. There was evidence that the arm of the crane came 8 1/2 inches nearer the car than was necessary for its efficient operation, or than was the case with other cranes on the line of defendant's road. This unnecessary proximity of the crane was due partially to its being out of repair, and partially to its being located too near the track. The court, inter alia, said: 'We cannot under this evidence say that he failed to show that the defendant might, by the use of reasonable care, have accomplished its purpose, and at the same time protected its employé from the injury. There was, therefore, sufficient evidence of negligence to submit the case to the jury, and the court did not err in refusing to give the peremptory instructions asked for.' The judgment below for plaintiff was reversed, but not because of an absence of proof of negligence in the location and maintenance of the crane. A defense of contributory negligence, it was held, was for the jury. Brown v. New York Central & H. R. R. Co. (Sup.) 59 N.Y.S. 672, decided in 1899, affirmed by Court of Appeals, 60 N.E. 1107, was an action to recover for fatal injuries sustained by a fireman from collision with a mail crane. Because of negligence in the crane being located nearer to the track than was necessary to its efficient operation, and because it leaned towards the track through being out of repair, defendant was held liable. As to the defense of contributory negligence, the court said it was a question for the jury.

In Kennedy v. Meddaugh, 118 F. 209, 55 C.C.A. 115, decided 1902, a fireman was killed by collision with a mail crane. The distance between the outer end of the arm of the crane and the car was 13 1/2 inches. The evidence was undisputed that the crane would not work efficiently located farther from the track, that is, that the crane was not located nearer the track than was necessary to its efficient operation. The trial court directed a verdict for the defendant. This was sustained upon review because under such state of facts the defendant was not guilty of negligence, and upon the further ground that the plaintiff had assumed an obvious risk. The court reviewed the Gregory, Sisco, and Milliken Cases, and recognized no conflict between them and its ruling. It observed, however, that it must not be considered as approving a statement, made in the Gregory Case, that, if mail cranes could not be placed at a distance that was entirely or approximately safe, they should be abandoned. The use of mail cranes necessarily, to some extent, increases the danger of railroading, and it is clearly the law, upon reason and under the authorities, that it was the duty of appellant to not unnecessarily increase this risk; that is, that it was its duty to exercise every reasonable care to render the use of this necessary appliance as reasonably safe as was practicable with its efficient operation. The evidence at the close of appellee's case in chief tended to show that appellant had not exercised this care. Therefore as to the question of negligence there was a case for the jury.

Appellants further contend that the court should have sustained this motion because the evidence showed that deceased had assumed the risk by reason of its obviousness, and that he was guilty of such contributory negligence as to preclude a recovery. If it was proper to send these questions to the jury at the end of the case, no prejudicial error was committed in refusing to take them from the jury on this motion. It will be more convenient to discuss them later on in the case, and we will only say at this time that the trial court did not err in refusing to take them from the jury. Our conclusion is that, although the trial court...