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

• Decision Date: 09 January 1899
• Citation: 26 Colo. 17,55 P. 1093
• Parties: DENVER & R. G. R. CO. v. SIPES.
• Court: Colorado Supreme Court

55 P. 1093

26 Colo. 17

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

Supreme Court of Colorado

January 9, 1899

Appeal from district court, Arapahoe county.

Action by Hattie Sipes against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was commenced by appellee, as plaintiff in the court below, to recover damages resulting from the death of her husband, who was killed at nighttime by the derailing of an engine upon which he was employed by appellant in the capacity of fireman, and is the second time it has been before this court for review. At the point where the accident occurred, appellant maintains a side track for the purpose of allowing trains to pass, and a freight, coming north, took this side track, and, in order to enable it to do so, the forward brakeman opened the switch at its south end, leaving it to be closed by the rear brakeman, whose duty it was to do so; but he, as well as the conductor, being asleep, it was left open. The object of the freight in taking the side track was to allow a passenger train, going south, to pass on the main one. The engine upon which deceased was employed was pulling this passenger train, and reached this point shortly after the freight had been side-tracked. The fireman on the engine of the latter train had drawn a curtain over the headlight of his engine, to indicate to the engineer of the passenger train that the switch to the side track was closed and the main track clear. The rules of the company provide that the conductors of trains are responsible for the proper adjustment of switches used by them and their trainmen except where switch tenders are stationed; and the engine of the passenger train having been derailed by the open switch which it was the duty of the conductor of the freight to have seen was properly adjusted, the case, on the first trial, was submitted to the jury upon the theory that his negligence with regard to this switch was that of the company, but on appeal it was held by this court that such negligence was that of co-servants of deceased, and we reversed the judgment, and remanded the cause for a new trial. Railroad Co. v. Sipes, 23 Colo. 226, 47 P. 287. On the second trial the facts with reference to the matters above mentioned are the same; but another feature regarding the negligence of the railroad company, not passed upon in the former opinion, for reasons therein stated, we are now called upon to determine from the following record of the last trial: 'It appears from the evidence that it was the custom of the company to carry a red light in the cupola of the caboose of its freight trains, which was taken down when the train carrying it entered on a side track; that a light so carried displayed its rays in all directions, and is the only red light which can be seen from the front; that the cabooses were built specially for such a light, with a receptacle inclosed by red glass, in which a lamp was inserted and clasped; that no such light was being carried on this freight the night in question, for the reason that the lamp specially constructed for this purpose was out of repair, and had been taken by the rear brakeman, by direction of the conductor of the freight to the shops of the company to be repaired; that such light had there been one, could have been seen by the engineer of the passenger train, and that this was the third trip made by the crew of this freight without it; that there were no other lamps in the caboose which could be used in the place in the cupola provided for such light; that two lights are carried on the rear of cabooses, so arranged as to display red to the rear, white at right angles, and green to the front; and that such lights were so carried by the freight the night of the accident.

The rules of the company, regarding signals by means of lights, so far as material, are as follows: (25) 'Red signifies danger, and is a signal to stop.' (34) 'Each train running after sunset, or when obscured by fog or other cause, must display the headlight in front, and two or more red lights in the rear. * * *' (74) 'When a train turns out to allow another train to pass, the red lights must be removed or turned, and green displayed towards the expected train as soon as the track is clear. * * * Headlights on engines when on side tracks, or at the end of double tracks, waiting for trains, must be covered as soon as the track is clear and the train has stopped. * * *' (78) 'All signals must be used strictly in accordance with the rules, and trainmen and enginemen must keep a constant lookout for them.' (94) 'All trains must approach * * * junction points * * * under perfect control, and will come to a full stop, unless switches or signals are seen to be right, or the track is plainly seen to be clear.' (121) 'In all cases of doubt or uncertainty, take the safe course, and run no risks.' In regard to the duties of employees whose employment requires them to give signals, the rules provide: (23) 'Conductors, * * * brakemen, * * * and all other employees whose duty may require them to give signals, must provide themselves with the proper appliances, and keep them in good order, and always ready for immediate use.'

The freight train consisted of 24 or 25 cars, each about 30 feet in length. The passenger train passed the engine of the freight at the rate of 15 or 20 miles an hour, and was under control. The fireman, who drew the curtain over the headlight of his engine, knew that no red light was displayed in the cupola of the caboose attached to his train that night, nor did he receive any signal from which he could infer that the switch had been set to the main track. It appears from the evidence that the word 'meet' is used in train service when trains coming from opposite directions meet and pass, and that the word 'pass' is used where a train is overtaken from the rear by another, and the former turns out to allow the latter to go by. The cause was submitted to the jury upon the theory that, although the employees of the freight were negligent, nevertheless, if it appeared from the evidence that the company was guilty of negligence in failing to furnish the lamp for the cupola light, and such negligence was the proximate cause of the accident, the plaintiff was entitled to recover. At the request of counsel for plaintiff, the court submitted interrogatories to the jury, which were in substance: (1) Does the evidence establish that the company negligently failed to provide the cupola light for the caboose, and that such failure directly caused the accident by which Sipes lost his life? (2) Was the company, independent of its employees on the freight train, guilty of negligence which directly contributed to his death? (3) Had the company provided the cupola light, would it not absolutely have prevented the accident?

Instructions requested by counsel for defendant, and refused, were based upon the proposition that the proximate cause of the accident was the negligence of the employees of the freight train, and, if given, would, in effect, have directed the jury to return a verdict in its favor. Other instructions requested by counsel, and refused, were to the effect that whether the failure to provide a cupola light was the proximate cause of the accident or not depended upon whether any new cause intervened, between such failure and the accident, sufficient of itself to cause it, and, if such cause did so intervene, then the failure to provide the cupola light must be considered as too remote, and not the proximate cause of the accident, even though the cupola light might have prevented it; that, if there were other lights in the caboose which might have been used in place of the cupola lamp while it was being repaired, the defendant is not liable; and, although the lack of such light was the cause of the accident, defendant would not be responsible, unless the employee who left the regular lamp to be repaired asked the proper officer of the company for another to take its place, and failed to obtain one. Verdict and judgment for $4,500, from which the defendant appeals.

Walcott & Vaile and Henry F. May, for appellant.

Thomas B. Stuart and Charles A. Murray, for appellee.

GABBERT, J. (after stating the facts).

Counsel for appellant assign as error the giving and refusal of instructions; admitting evidence regarding the custom of carrying a red light in the cupola; submitting the special interrogatories, because leading and not based upon the evidence.

The propositions raised by appellant on the errors assigned except that relating to...