Denver & R. G. R. Co. v. Elliott

• Decision Date: 01 March 1915
• Docket Number: 7791.
• Parties: DENVER & R. G. R. CO. v. ELLIOTT.
• Court: Colorado Supreme Court

148 P. 269

59 Colo. 29

DENVER & R. G. R. CO. v. ELLIOTT.

No. 7791.

Supreme Court of Colorado, En Banc.

March 1, 1915

Rehearing Denied May 3, 1915.

Error to District Court, Fremont County; Charles A. Wilkin, Judge.

Action by Marguerite Elliott against the Denver & Rio Grande Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

White J., dissenting.

E. N Clark and J. G. McMurry, both of Denver, and Waldo, Dawson &amp Stump, of Canon City, for plaintiff in error.

James T. Locke, of Canon City, and Botsford, Deatherage & Creason of Kansas City, Mo., for defendant in error.

HILL J.

The defendant in error was awarded $3,000 damages for the death of her husband, caused through the alleged negligence of the employés of the plaintiff in error in the operation of one of its trains. The deceased was a section foreman in the employ of the Atchison, Topeka & Santa Fé Railway Company. A part of his duties was to look after and keep in repair the main side track, or what is termed the lead track, and several other tracks leading therefrom, of the latter company at Portland, in Fremont county. There were six or seven side tracks leading from this lead track into the yards of the Colorado Portland Cement Company's works at Portland. These tracks were not very long, and all ended in the yards of this company, that is, they had no outlet at the other end, so that trains going onto them from the lead track had to return the same way. The plaintiff in error had a side track from its main line, which also ran through the town of Portland, whereby it connected with this lead track of the Santa Fé Company. It also had arrangements with the Santa Fé Company, whereby it had the right to go upon this lead track and its other side tracks leading therefrom, in order to receive and deliver cars and do other switching in connection therewith. In pursuance of this arrangement, upon the day of the accident, a train of the plaintiff in error, consisting of at least an engine and caboose with an engineer, fireman, conductor, and two brakemen, came from its tracks over onto the lead track of the Santa Fé for the purpose of doing some switching in the Portland yards, and when upon this lead track they ran into the yards of the cement company, turning in on what is called track No. 3, which ran along the side of what is termed the stock room of the cement company. When they went in they had three or four cars in front of the engine with the caboose in the rear. At this time the deceased, with two sectionmen, was working upon this lead track some 200 feet from where track No. 3, running into the cement works, leaves the lead track. It is in dispute as to whether or not all the trainmen saw them as they went in; it is a fair inference that they did, as there is evidence that they had been working there ever since 7 o'clock that morning and had worked there the day before. The engineer states he had been working over there 1 hour and 40 minutes before going on this track, and that he had seen the deceased adjacent to the track at the point where he was struck. The accident occurred some time during the forenoon of November 6, 1909. There is also evidence that this crew was switching on these tracks the day before, and that the engineer had cautioned the deceased about the carelessness of his men being upon the tracks. After going into the cement yards on track No. 3 it appears that the crew coupled onto six more cars at the stockhouse and then proceeded to back out, pushing the caboose in front of the engine. Just how long they remained upon this track No. 3 is not disclosed. It was evidently not very long. It appears that after they got to the stockhouse the conductor and one brakeman, if not both, went forward to assist in the couplings, and when it started to back out the conductor and one brakeman left the train at about the point where they had made the couplings and proceeded to go north, while the train was backing out east; they evidently were going to another side track in the yards north of this one. The second brakeman got aboard the train about four or five cars behind the engine, thus providing no one at the time upon the end of the train the way it was backing. There is evidence that no whistle was sounded, or bell rung, or other signal given while it was thus backing out. The main line of the Santa Fé runs parallel with this lead track, being about 10 feet apart, and at the time the accident happened, when this train was being backed east upon the lead track, a Santa Fé freight train, with about 20 cars, was going west upon the main line; it, of necessity, made considerable noise. The two sectionmen who were with the deceased did not testify. Two eyewitnesses to the accident, who were about 350 yards away and about 40 feet higher than the track, testified that when they first saw the train, it was backing at the rate of seven or eight miles an hour; that for two or three minutes before he was struck, the deceased was stooping over toward the east, working at something close to the left rail, as you go east, and between them; that when one of the witnesses first saw him in this position the train was from 75 to 100 yards away; that from that time to the time he was struck there was no ringing of the bell or blowing of the whistle, and that they heard none before then; that there was no one on the caboose or rear end of the train the way it was going; that there was a slight curve in side track No. 3 at and near where it connects with the lead track and near where the accident occurred; that the deceased was struck while in a stopping position where he was working, from which he received the injuries which resulted in his death the next day.

There is no direct testimony that any of the train crew saw the deceased in the dangerous position after they started to back out of the yards. Their evidence is that they did not. It is debatable whether the engineer could have seen him from his place in the engine, even though he were looking, upon account of being on the outside of the curve when the engine was backing, pushing the caboose in front of it. He does not say, however, that he was looking in that direction when the accident happened. It is not claimed that the fireman could not have seen him had he been looking in that direction, but he states he was not looking that way, but was looking in the other direction, where he says he was receiving the signals from the trainmen. Just what signals were to be received or expected after the couplings had ceased, and the train started to back out east, and after the conductor and one brakeman had left the train and the other had got aboard about halfway back, he does not say, but they were all positive in their statements that they did not actually see him in this perilous position; that is, made perilous upon account of the approaching train. There is no testimony as to the exact length of time the deceased was in this position. One of the witnesses states, in substance, that he had changed his position within two or three minutes. There is no evidence when he made this change whether or not he looked to see if the train was returning. It is conceded he was familiar with these tracks and knew the train must come out the way it went in.

For convenience we will hereafter refer to the parties as designated in the trial court.

Two contentions are presented to secure a reversal. The first pertains to the instructions given upon the theory that from all the evidence, it was a question of fact for the jury to determine whether the defendant was guilty of negligence in the operation of its train or in failing to give warning, etc., and whether the deceased was guilty of contributory negligence.

Counsel insist that the deceased was guilty of contributory negligence as a matter of law. We cannot so hold. The deceased was a section foreman in the performance of his duties. He was where he had a right to be, and the defendant company owed him the same duty which it owes to its own employés under like circumstances. McMarshall v. Chicago, R.I. & P. Ry. Co., 80 Iowa 757, 45 N.W. 1065, 20 Am.St.Rep. 445. Ergo, his duty in looking out for his safety upon account of trains, etc., was no greater than it otherwise would have been had this been a Santa Fé train.

In 23 American & English Encyclopedia of Law (2d Ed.) at pages 765-768, in commenting upon the question of contributory negligence in failing to keep a diligent lookout while approaching, being, or walking on, or otherwise in connction with, railroad tracks, at page 768, it is said:

'Nor does the principle apply to employés whose duties require their presence upon the track, the performance of which duties necessarily precludes their paying the strictes attention to the approach of trains. Whether a person in such a situation is guilty of negligence in failing to note the approach of a train is generally a question of fact to be determined by the jury, in view of all the circumstances.'

Numerous cases are cited to sustain this conclusion. We think it the correct rule, and the one that should be applied to the facts in this case, and that the question of contributory negligence of the deceased was properly submitted to the jury, as was said in Sagara v. Chicago, R.I. & P. Ry. Co., 144 P. 881, 882:

'Without doubt, it was the duty of the plaintiff to have kept such lookout for the approach of trains as is consistent with the duty of a prudent man similarly situated.'

But this must be tested by the state of facts presented as disclosed by the plaintiff's testimony, viz., that there was only one train in these yards at the time; that he had a right to assume that the crew knew he was working there; that ordinarily he...