Denver & R. G. R. Co. v. Sipes

• Decision Date: 16 November 1896
• Citation: 23 Colo. 226,47 P. 287
• Parties: DENVER & R. G. R. CO. v. SIPES.
• Court: Colorado Supreme Court

47 P. 287

23 Colo. 226

DENVER & R. G. R. CO. v. SIPES.

Supreme Court of Colorado

November 16, 1896

Error to district court, Arapahoe county.

Action by Hattie Sipes against the Denver & Rio Grande Railroad Company. From a judgment in favor of plaintiff, defendant brings error. Reversed.

This is an action brought by Hattie Sipes to recover damages for the death of her husband, George Sipes, who was killed on the night of May 7, 1890. His death was caused by the derailing of an engine upon which he was engaged in the line of his duty as fireman, while in the service of the defendant company. The accident occurred near a place called 'Fountain,' where the company, in the operation of its road, had a side track for the purpose of allowing its trains to pass. The engine upon which deceased was employed was pulling a passenger train going south. A few moments prior to the arrival of his train a freight train going north had reached this point, and had gone onto the side track for the purpose of allowing the passenger train to pass. In order to enable it to do so, the forward brakeman on the freight train had opened the switch at the south end of the side track, and left it to be closed by the rear brakeman, who being at the time asleep in the caboose, neglected to do so. The fireman of the freight train had covered the headlight on his engine to indicate to the coming passenger train that all was right. The red light customarily kept in the caboose of the freight train had been left several days previous at the company's shops to be repaired, and which, by the rules of the company, when displayed, signified danger, and was a signal for any approaching train to stop. The passenger engine passed the freight train, ran into the open switch and Mr. Sipes was killed. Verdict and judgment in favor of plaintiff for the sum of $5,000. To this judgment defendant prosecutes this writ of error.

Rule 117 of the company provides: 'Conductors will be held responsible for the proper adjustment of the switches used by them and their trainmen, except where switch tenders are stationed.' Inter alia, the court instructed the jury as follows: '(3) If you find that under the rules of defendant that were in existence at that time, and by which its trains were operated, that it was the duty of the conductor of the freight train going north to see that the switch was closed at the side track on which he placed his train, and that said conductor had exclusive charge and control of said freight train, and had command and control of the train hands on said train, and that he failed to see that said switch was closed, but negligently left it open, or negligently allowed it to be left open, and on account of such negligence of said conductor the accident occurred which resulted in the death of said George Sipes, then the negligence of the conductor would be the negligence of the defendant company, and the defendant cannot claim protection on the ground that said conductor was a co-servant or fellow servant of said George Sipes.' And refused the following asked by defendant: '(7) The trainmen upon the freight train were fellow servants with the deceased, who was fireman on the other train, and for their negligence the defendant is not liable to this plaintiff.' Upon the giving and refusing of these instructions defendant assigns error. Error is also assigned to the giving of other instructions touching the liability of the company for failure to furnish customary signal lights, which, in our view of the case, it is unnecessary to consider upon this review.

Wolcott & Vaile and H. F. May, for plaintiff in error.

Stuart & Murray, for defendant in error.

GODDARD J. (after stating the facts).

It is undisputed that the switch at the south end of the side track was negligently left open by the employés of the company, and that the derailment of the engine upon which the deceased was employed was caused thereby. It may also be conceded that under the rules of the company the conductor in charge of the freight train was responsible for that neglect. The question therefore, of the liability of the company for such neglect on his part, is squarely presented, and the correctness of the law given by the court below upon this branch of the case is the principal question presented for our determination; and that is whether a railroad company is liable for the injury to an employé on one of its trains, caused by the negligence of a conductor on another train in leaving a switch open that it was his duty to see closed. The solution of this question depends upon whether the default on his part consisted in a dereliction of duty imposed by law upon the company, or is one the performance of which it may delegate to another. If the former, the company is liable; if the latter, the rule that exempts the employer from liability for the negligence of a fellow servant applies. The personal duties that the law imposes upon the master are well defined and understood, and are such as relate to the furnishing and keeping in repair of reasonably safe machinery and appliances for carrying on his business; a reasonably safe place...