Denver & R. G. R. Co. v. McComas

• Decision Date: 11 November 1895
• Citation: 7 Colo.App. 121,42 P. 676
• Parties: DENVER & R.G.R. CO. v. McCOMAS.
• Court: Colorado Court of Appeals

42 P. 676

7 Colo.App. 121

DENVER & R.G.R. CO. v. McCOMAS.

Court of Appeals of Colorado

November 11, 1895

Appeal from district court, Chaffee county.

Action by David McComas against the Denver & Rio Grande Railroad Company for personal injuries. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

Wolcott & Vaile and C.S. Libby, for appellant.

Lee Champion and E.F. Richardson, for appellee.

BISSELL J.

It is quite impossible to determine from the record whether our conclusion will enforce the fair measure of duty which the master owes to the servant, or permit the company to escape the liability which such obligation would justly impose. The failure to establish what is prerequisite to a recovery in this class of cases must reverse the judgment. In May, 1891 the Denver & Rio Grande Company was operating its trains on that portion of the road which extends from Salida to Buena Vista. A few miles from Salida the road, in following the course of the Arkansas river, enters what is known as "Brown's Cañon," which is characterized, like all other gorges along that river, by rocky and precipitous bluffs, which are a constant menace to the safety of railway travel. The gorge is narrow, the roadbed confined and subject to slides and rock falls, which endanger the safety of trains. Some two or three months prior to the accident, the road had broadened its gauge from the narrow to the standard, and in doing this work had blasted some sections of the cañon, to furnish space for the roadbed. At a point about 12 miles from Salida was a place known by the name of "Jackson's Curve," near Arena. At this point the rocks were precipitous and rugged, and at the exact place of the accident seemed to be some 30 or 40 feet high and from thence sloped gradually to the top of the mountain. When the blasting was done, the contractor sloped the bluff at the rate of about one in four, to provide, as well as might be, for the safety of trains. Wherever such work was done, the contractor went over the surface of the mountain, removed all loose formations and projecting rocks, to prevent accidents. The road had been running for some two or three months after the widening of the gauge. On the day named a rock fell upon the track, the engine ran into it, and McComas, who was a brakeman on the train, was quite severely hurt. McComas was what is known as a front brakeman, and rode in the engine, on a board seat placed from the fireman's seat across to the boiler, whereby he faced the train, and kept watch over his section of it while the train was in motion. Brakemen of this class are barred from the caboose on the rear of the train, and there is no other place where they can ride between stations in most seasons of the year. The rock which fell on the track seems to have been something like a cube, and of three or four feet either way in dimensions. The engine was derailed, and McComas went over with it. Some other facts will be stated respecting this rock, but those matters will be reserved for the later discussion.

The general rules which determine the care and responsibilities and rights and privileges as between master and servant are tolerably well understood. There will be no effort to formulate or express this law with an exactitude which will make it applicable to all cases of this description or to future controversies. The danger of attempting this thing is well understood. The course of judicial history is marked, as with milestones, by the lamentable failures which usually characterize the efforts of judges who strive to express, in rules and by definitions the principles which must control particular phases of legal controversies. The intellectual perception and ability to grasp principles and foresee the exceptions and the limits to a particular doctrine are given to none. Nothing is attainable but relative accuracy. Safe appliances and a safe way must be provided. Railroad companies are bound to use ordinary care and reasonable prudence to provide a safe roadway, as well as sufficient machinery. The employé cannot, by a lack of watchfulness and care, be unduly exposed to risks in this particular. Of course, the care is measured by the danger which attends the service, though the employé is assumed to take the ordinary hazards which are incident to a dangerous employment. Railroad Co. v. Ogden, 3 Colo. 499; Murray v. Railroad Co., 11 Colo. 124, 17 P. 484; Wilson v. Railroad Co., 7 Colo. 100, 2 P. 1; Railroad Co. v. Liehe, 17 Colo. 280, ...