Denver & R.G. R. Co. v. Ryan

• Decision Date: 16 November 1891
• Parties: DENVER & R. G. R. CO. v. RYAN.
• Court: Colorado Supreme Court

28 P. 79

17 Colo. 98

DENVER & R. G. R. CO. v. RYAN.

Supreme Court of Colorado

November 16, 1891

Appeal from district court, Arapahoe county; A. J. RISING, Judge. Affirmed.

Action by Mary Ryan against the Denver & Rio Grande Railroad Company for the death of her husband. Judgment for plaintiff. Defendant appeals.

The other facts fully appear in the following statement by ELLIOTT, J.

This action was brought by Mary Ryan, plaintiff below, to recover damages for the death of her husband, Patrick Ryan. In her complaint she alleges that on September 17, 1889, her husband was run over and killed by an engine and tender of the defendant, the Denver & Rio Grande Railroad Company, and that his death was so occasioned by the negligence of the defendant in operating its railway train at the intersection of Larimer and Sixth streets in the city of Denver. The action is founded upon the act of March 7, 1877,--a statute so familiar that it need not be quoted at length. 1 Mills Ann. St. p. 1003. The following ordinances of the city of Denver were set forth in the complaint, and shown to be in force at the time of the accident: 'It shall be the duty of the engineer or other person in charge of any locomotive engine within the city of Denver, on approaching any public crossing, street, or highway, to ring the locomotive bell sufficiently loud to warn all persons of the approach of such locomotive engine, and shall continue to ring such bell until such locomotive engine and train of cars shall have cleared such crossing. For every violation of this section the offender shall, upon conviction, be fined in a sum not exceeding one hundred dollars for each and every offense.' 'All railroad companies whose tracks cross Larimer, Holliday, and Seventh streets shall be required to keep a flagman at said crossings, whose duty it shall be to warn people of the approach of trains by waving a red flag at the time of the approach of any train or engine, so as to fully protect the public in their persons and property.' The plaintiff recovered a verdict and judgment. The defendant brings this appeal.

Syllabus by the Court

1. Municipal ordinances requiring the ringing of the locomotive bell whenever a steam-engine is approaching or crossing a public street, and requiring the presence of a flagman at important crossings, to the end that people may be suitably and seasonably warned of the approach of railroad trains, are reasonable and proper regulations; and failure by a railway company to observe such an ordinance is negligence.

2. It is negligence and carelessness for a person to go, stand, or be upon the track of a railroad without keeping watch both ways for trains; also it is the duty of a person going upon a railroad track to look and listen for the approach of trains and observe the surroundings; and a failure so to do is negligence.

3. In an action for negligence the plaintiff is not entitled to recover unless the negligence of defendant be affirmatively established by a preponderance of the evidence.

4. Where a defendant relies upon the contributory negligence of the plaintiff as a defense, such contributory negligence must be shown by a preponderance of the evidence, or the defense will be unavailing.

5. While the Code dispenses with the necessity of taking exceptions to the giving, refusing, or modifying instructions, it does not do away with the reason or necessity for making objections in some appropriate way to instructions in such time and manner as to give the trial court an opportunity to correct the same if found erroneous.

6. If an instruction be given at the request of the defeated party, or if the same be not prejudicial to such party, it is not ground for reversal, even if erroneous.

Wolcott & Vaile, for appellant.

Sullivan & May and S. L. Carpenter, for appellee.

ELLIOTT, J., ( atter stating the facts.)

The assignments of error sought to be maintained on this appeal relate mainly to the instructions given, refused, and modified. Of these in the reverse order:

1. Railway companies engaged in propelling locomotive engines and trains through large cities and thickly settled towns are bound to exercise all reasonable care and diligence to avoid injury to persons traveling upon the public streets intersected by such railroads. The care and diligence should be proportionate to the increased dangers and risks occasioned by such occupation of the public streets. In addition to the diligence which the common law exacts in such cases, local statutory regulations may be resorted to for the better protection of the public safety. Municipal ordinances requiring the ringing of the locomotive bell whenever a steam-engine is approaching or crossing a public street, and requiring the presence of a flagman at important crossings, to the end that people may be suitably and seasonably warned of the approach of railroad trains, are reasonable and proper regulations; and it is the duty of railroad companies to faithfully observe such ordinances. The district court did not err in modifying defendant's request to charge the jury upon this subject. The evidence tended to show that Ryan was attempting to cross the public highway diagonally at the intersection of Sixth and Larimer streets at the time he was struck by the engine; so he might have been warned and protected if the bell had been rung, or if the flagman had been present, as the ordinances provide. It was properly left to the jury to determine from the evidence whether the locomotive bell was or was not rung; also whether the flagman was or was not present at or immediately before the happening of the accident. So, too, the jury were correctly charged that, if they were satisfied from the evidence that the defendant company had failed to comply with said ordinances, or either of them, at the time of the accident, such failure was negligence on the part of the defendant. But it was not in any manner indicated by the charge of the court that such negligence, if found to exist, was conclusive of the defendant's liability in the action. Proof of such negligence would not suffice to make the defendant liable, unless it was also shown to be the proximate cause of the death of the plaintiff's husband, Patrick Ryan; and not then if the evidence also showed that Ryan's own negligence contributed to cause his death. Such was, in substance, the charge of the court. Shear. & R. Neg. § 13; Whart. Neg. § 798; 2 Thomp. Neg. 1232; Behrens v. Railway Co., 5 Colo. 403; Jackson v. Crilly, 16 Colo. ----, 26 P. 331; Briggs v. Railroad Co., 72 N.Y. 30; Siemers v. Eisen, 54 Cal. 418; Bott v. Pratt, 33 Minn. 323, 23 N.W. 237. While the law is thus stringent in imposing duties and responsibilities upon railroad companies, it is not less exacting in its requirements of individuals or natural persons. The learned judge who presided at the trial very properly charged the jury that, 'as a matter of law, it is negligence and carelessness for a person to go, stand, or be upon the track of a railroad without keeping watch both ways for trains;' and further, that it was the duty of Ryan, in going upon the track of the defendant company, 'to look and listen for the approach of trains, and observe the surroundings,' and that, if he failed so to do, it was negligence on his part. Railroad Co. v. Holmes, 5 Colo. 197, 516; Fletcher v. Railroad, 149 Mass. 132, 21 N.E. 302; Railroad Co. v. Houston, 95 U.S. 702; Aiken v. Railroad Co., 130 Pa. St. 380, 18 A. 619; Kennedy v. Railway Co., 10 Colo. 495, 16 P. 210.

2. The defendant's counsel requested the court to instruct the jury to the effect that the burden of proof devolved upon the plaintiff to show affirmatively that the killing of Ryan...