Denver & R.G.R. Co. v. Da Vella
| Decision Date | 02 April 1917 |
| Docket Number | 8556. |
| Parties | DENVER & R. G. R. CO. v. DA VELLA. |
| Court | Colorado Supreme Court |
Rearing Denied June 4, 1917.
Error to District Court, City and County of Denver; John H Denison, Judge.
Action by Oresta Da Vella, Royal Italian Consul, as administrator of Vincenzo Plasteno, against the Denver & Rio Grande Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
E. N Clark and R. G. Lucas, both of Denver, for plaintiff in error.
F. W Sanborn and Geo. Allan Smith, both of Denver, for defendant in error.
Vincenzo Plasteno was accidentally killed while employed by plaintiff in error as a section hand on its railroad. He left, as his sole surviving heir, his mother, who was dependent upon him for support, and who at the time of the accident was a subject and resident of the kingdom of Italy. This action was instituted on her behalf by defendant in error as administrator of the estate of the deceased. The jury returned a verdict of $2,000 against the company and it brings the case here on error.
The complaint alleges substantially that defendant, a railroad corporation, is a common carrier engaged in interstate commerce; that deceased was in its service as a section hand and track repairer, and while so employed on September 21, 1912, near the station of Chester, Colo., was so badly injured by one of the trains of defendant, through its carelessness and negligence, that he died the next day. It was stipulated on the trial that defendant was, at the time stated, a common carrier by railroad, engaged in interstate commerce on its line of railroad, and at the siding or station near Chester, where deceased was injured, and is subject to the provisions of the federal Employers' Liability Act.
On defendant's narrow gauge line between Salida and Grand Junction is a station or siding called Chester. Two miles west of this, at a point called Tank 7, is a section house used as headquarters for two section crews, one working east and the other west. From Chester easterly there is a heavy upgrade to the top of Marshall Pass. Each section foreman had power to employ and discharge section hands, who worked under his direction and control. There is evidence showing that it was the duty of the foreman to go with the men each day over his section, inspect the track, keep it in repair for train service, and remove old ties and rails, and for this work he was furnished with a push car. It was the custom of the foreman to sit on the front end of this car, which the men pushed over the track, and in this way they inspected the track and roadbed, and, upon discovering anything out of repair, would stop and fix it. September 20, 1912, the foreman received orders from the roadmaster to gather up the old rails along the track on his section and put them on a car at Chester. The next morning the foreman, with three section hands, one of whom was the deceased, started out with the push car for the purpose of inspection and gathering old rails. When they reached Chester, they had picked up four rails, and, after placing these on a car, were intending to continue their work a mile and a half east of Chester, which would necessitate their purhing the car upgrade. About this time a heavy freight train, going east, came in, propelled by three engines, one of which was at the rear of and pushing the train. While this freight was standing on the main line, the...
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