Denver & R. G. R. Co. v. Reiter

• Decision Date: 07 March 1910
• Citation: 107 P. 1100,47 Colo. 417
• Parties: DENVER & R. G. R. CO. v. REITER.
• Court: Colorado Supreme Court

107 P. 1100

47 Colo. 417

DENVER & R. G. R. CO. v. REITER.

Supreme Court of Colorado

March 7, 1910

Appeal from District Court, Fremont County; M. S. Bailey, Judge.

Action by Louis T. Reiter against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Joel F Vaile, Waldo & Dawson, J. G. McMurry, E. N. Clark, and William W. Field, for appellant.

Champion & Blunt and Richardson & Hawkins, for appellee.

WHITE J.

The appellee was plaintiff below, and sued appellant to recover damages for personal injuries sustained by him through the alleged negligence of the latter. Plaintiff recovered a judgment, from which the defendant prosecutes this appeal.

The plaintiff claimed that his injury was caused directly and approximately by the negligence and carelessness of the defendant in causing to be used and maintained in the switch on its railroad track, at or near the point where he was injured, old, worn, unsafe, and unfit frogs, which would not perform the function and purpose for which they were designed, in causing to be used and maintained in said switch certain rails, called 'guard' or 'wing' rails, when the same were out of proper position, in that they were out of gauge, to such an extent as to render the passage of trains over said switch dangerous and hazardous and in using and maintaining in said switch, as a part thereof, an old and rotten switch block and switch chairs and in allowing the railroad tracks constituting a part of said switch to be and remain out of repair and out of gauge. The defendant denied any negligence whatever upon its part, and alleged the assumption of the risk by the plaintiff, that he was a man of mature years and experience in the business and occupation in which he was then engaged, and familiar with the track, switch, frog, and guard rails mentioned in the complaint, and with the manner in which the same were used, and that plaintiff was guilty of contributory negligence.

The appellant owned and operated a railroad, the main line of which passed through the city of Florence in Fremont county. From Florence in a westerly direction to the town of Coal Creek, in the same county, it owned a branch line, having three rails, permitting the operation over and upon the same of both standard and narrow gauge locomotives and cars. At a point between the city of Florence and Coal Creek, and about one-half mile from the latter town, the line of railroad was divided by means of a double pointed railroad switch; one branch extending to a coal mine called the 'Old Slope,' and the other branch extending to said Coal Creek. The appellee was employed by the defendant in the summer of 1904, at which time he represented himself to be of the full age of 21 years, though he did not attain his majority until October 26, 1905. A rule of the company required that minors 'must not be employed in engine, train or switching service, or in other service, only upon the release from the parents or guardian.'

Upon entering the employment of appellant the appellee was assigned to work as a brakeman on the Coal Creek branch above designated, passing back and forth over it at least once a day each way, and sometimes oftener when the traffic was such as to require it. October 12, 1905, a train was made up at Florence and started to Coal Creek. It consisted of a narrow gauge car ahead, loaded heavily, with 12X12 green pine timbers; behind this narrow gauge car were six standard gauge empty cars, and behind these an engine, pushing the cars to their destination. The appellee was front brakeman on this train, and was properly riding upon the narrow gauge car. On approaching the double point switch at the east end of the left wing or guard rail, the left wheel of the forward truck of the narrow gauge car mounted the wing rail, and ran along the top thereof for several feet. The left wheel of the front truck took the wrong side of the frog, and eventually left the rails altogether, and ran along the ties, being deflected from the Coal Creek track to the Old Slope track. The wheels of the rear trucks of the narrow gauge car kept the Coal Creek track, as did all the other cars and locomotive constituting the train. By reason of the derailment appellee was jolted or thrown off the narrow gauge car, and fell in such way that the rear wheels of the car passed over his left leg, and injured it so seriously that it had to be, and was, amputated above the knee. The road through the switch was on a slight curve to the left, thus throwing the higher tracks to the right. The following diagram will aid in an understanding of the conditions where the injury occurred, and the facts of the case:

(Image Omitted) The lower track, marked No. 7, is the one upon which the left wheels of the trucks of the standard gauge cars and locomotive were traveling, No. 8 is the lower rail upon which the left wheels of the narrow gauge car were traveling, and No. 9 is the upper rail upon which the right wheels of all the cars were traveling. The double point frog extends from the point marked No. 1 to the point marked No. 2; the rail marked No. 3 is the lower wing or guard rail of the double point frog; the rail marked No. 4 is the upper guard rail of the double point frog; No. 10 is the head block of the switch; the dotted lines show the course of the derailed trucks of the narrow gauge car as shown by wheel marks on cross-ties; A is the point of the wing rail where the left-hand wheel of the front truck of the narrow gauge car first struck, and X is where the wheel finally mounted to the top of the wing rail, along which it traveled to point B. The evidence discloses that the wing or guard rail at point A was very much worn as the result of car wheels striking against it, and glancing off; that the whole corner was worn off the ball of this rail three-quarters of an inch from the center down. After the wheel mounted the wing or guard rail at X it traveled along the top of the rail until it reached point B, where it dropped on the right-hand side of the point of the frog, instead of the left-hand side, and upon reaching the west end of the wing rail of the switch, jumped to the ties. The double point frogs were 'badly worn five or six inches back, a full length of a hand.' The width of the frog at the point where it was flush with the surface rail was seven-eighths of an inch. The switch block and switch chairs were old, rotten, and cracked. The proper width or gauge of a standard truck is 4 feet 8 1/2 inches, and of a narrow gauge is 3 feet. The tracks comprising the switch were from three-fourths to seven-eights of an inch wider than the proper gauge. Rails on curves should be from one-half to three-fourths of an inch wider than the regular gauge, except in switches. 'In a switch they should be laid to gauge.' A car in running sticks to the outside of a curve, and a loaded car will hug the rail closer than an empty one. Appellant's section foreman testified: 'Went to place of accident next day; the gauge was three-fourths of an inch out where wheel dropped into frog, catching the wrong side of the point [at point B].' If the track was out of gauge, three-fourths of an inch at point of frog (B), it would probably be more likely to make the flange of the wheel catch the wrong side of the point than if it had been in gauge. 'I think it is a bare possibility it would derail a train there on that gauge.'

The evidence conclusively shows that appellant, as to the branch line in question, had no inspection service, and that, while it was the duty of the section foreman to inspect the tracks, as to the tracks in question he had not done so. He testified that he had three men most of the time, sometimes two, and with the condition the track was in there was enough work for two gangs; that while he had authority to get more men, he was short because he could not get them at the wages he was authorized to pay.

The first contention of appellant is that the evidence wholly fails to establish any negligence on the part of the appellant in the matters alleged in the complaint. Appellant assumes that the worn and battered condition of the point of the frog at B in no wise contributed to the injury, and proceeds to eliminate that feature of the evidence, and case from consideration. This assumption is based upon the fact that the evidence clearly shows that the wheels left the track rail at point X, some 10 feet before the point B of the frog was reached, and that therefore the condition of the frog at point B had no effect whatever in causing the accident. We cannot accept the assumption indulged by counsel. When we collate in the mind the facts: That a car on a curve hugs the...