Denver & R. G. R. Co. v. Gannon

• Decision Date: 03 June 1907
• Citation: 90 P. 853,40 Colo. 195
• Parties: DENVER & R. G. R. CO. v. GANNON.
• Court: Colorado Supreme Court

90 P. 853

40 Colo. 195

DENVER & R. G. R. CO. v. GANNON.

Supreme Court of Colorado, En Banc.

June 3, 1907

Rehearing Denied July 1, 1907.

Appeal from District Court, Fremont County; M. S. Bailey, Judge.

Action by Claude W. Gannon against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Wolcott, Vaile & Waterman, Elroy N. Clark, and Waldo & Dawson, for appellant.

Skelton & Morrow, for appellee.

GODDARD J.

On the 6th day of March, 1902, while engaged in the service of the appellant (defendant below), as switchman in its yard at Florence, Colo., in attempting to couple a standard guage car to a narrow gauge car, the appellee (plaintiff below) was seriously injured by reason of certain alleged acts of negligence of appellant, set forth in the complaint as follows: '(1) That by and through the carelessness negligence, and default of the defendant and its servants it knowingly permitted the frogs and guard rails in said yard (at Florence) at said time (the date of the injury) to become and remain and be used without any blocking whatever. (2) That the engineer who had charge of the locomotive which was used at said time and place pushed said cars together at a rapid and dangerous rate of speed, and failed to watch for and observe the signals given to him, and failed to stop said locomotive at the proper time and when signaled so to do. * * * That through and by reason of the carelessness, negligence and default of the defendant heretofore mentioned, and through and by reason of the carelessness, negligence, and default of defendant's engineer, the said plaintiff was * * * knocked down and * * * run over.' The court submitted to the jury the two grounds of negligence as above alleged, and also submitted some interrogatories, among them the following: '(2) Was the place which plaintiff chose to step in front of said car a reasonably safe place for the purpose for which he testified he stepped in front of said car? Answer: Yes.' '(5) Did the fact of plaintiff's stepping in front of said car at the time and place where he testified he stepped in front of said car proximately contribute to the injury which he sustained? Answer: Yes. (6) At the time plaintiff stepped in front of said car, did he know, or by the exercise of reasonable care should he have known, of the unblocked condition of the frogs and guard rails at the place where he stepped in front of said car and immediately west from said point? Answer Yes.' '(8) If you find for the plaintiff, state what act or acts of negligence on the part of the defendant company or its employés was or were the immediate, direct, and proximate cause of the injury to him.' The answer to this was as follows: '(1) Defendant negligent in failing to block frogs and guard rails. (2) Engineer negligent in failing to watch for signals, and also negligent in increasing rate of speed.' The jury also returned a general verdict for the plaintiff.

It was the duty of the appellee, as a member of the switch crew, to assist in making couplings and to open and close switches. He had been engaged in railway work off and on about seven or eight years in different capacities; had been working for the appellant about three months as switchman in the Florence yards. At the time of the accident he was placing three links in the end of a standard gauge car preparing to couple it with a narrow gauge car. He describes the occurrence as follows: 'When I started to go in front of that car, it was approaching very slowly, at such a rate of speed as to be perfectly safe. As I started to run back sideways, and insert the links in the automatic coupler, then I heard the engine exhausting, and dropped everything and started to get out. I dropped the links right in the middle of the track. I stepped in the end of the guard rail that comes alongside of the rail like that, and my foot went down into the end of it here--my heel clear up to the hollow of my foot. Had I not caught my foot in that manner, I would have gotten out without injury.'

Among other instructions, the court gave the following: '(8) The defendant was guilty of negligence, under a statute of the state, at the time plaintiff received his injury, in failing to block its guard rails; and if you believe from the evidence that plaintiff's injury was caused by such failure on the part of the defendant to block its guard rails at said time and place, or that said failure on the part of the defendant to block its guard rails concurred with some other cause or causes operating proximately at the same time, in producing the injury, then your verdict should be for the plaintiff and against the defendant, unless it is shown that his (plaintiff's) own negligence contributed to said injury, and that he would not have received the same but for his own negligence. (9) The plaintiff did not assume the risk occasioned by the failure on the part of defendant to block its frogs and guard rails; and if you believe from the evidence that said injury was caused by the failure on the part of defendant to so block its frogs and guard rails, and that said failure concurred with some other cause or causes all operating proximately at the same time in producing the injury, then you should find for the plaintiff and against the defendant, unless it has been satisfactorily shown by the evidence that the plaintiff was guilty of negligence directly contributing to said injury, and without which the same would not have occurred.'

The controlling question, as we view it, is presented by the assignments of error based upon the giving of these instructions. It is contended by counsel for appellee, quoting from page 3 of his brief, as follows: 'Even if the case was erroneously submitted as to one act of negligence, it affirmatively appears from the record in the case that the defendant was not prejudiced thereby, for the verdict would have been the same if the act of negligence which was erroneously submitted to the jury was entirely withdrawn from their consideration.' If the evidence had permitted, and the jury had found, that the proximate cause of the accident was the negligence of the defendant in either one of the above respects alone, there would be some basis for this argument; but the jury found, and the testimony shows, that the proximate cause of the plaintiff's injuries was the combined effect of the failure to block the frogs and guard rails, and the engineer's negligence, and it was apparent that, in the absence of either one of these acts of alleged negligence, the accident would not have occurred, and that neither one operating alone was the proximate cause of the plaintiff's injury. It is therefore necessary to determine whether the court, in submitting either of the alleged acts of negligence, announced the law applicable to the facts upon which the particular charge of negligence was based, and correctly defined the duties and obligations imposed upon the respective parties under the existing conditions.

The reciprocal duties and obligations of employer and employé imposed by the common law are well settled. It devolves upon the employer the duty of furnishing the employé a reasonably safe place in which to work. It requires the employé to use his faculties, as an ordinarily prudent man would, to avoid injury. If the employer neglects to perform his duty in the respect above mentioned, and the employé, without fault on his part, is injured as the result of such negligence, the employer must answer in damages; but, if the defect is obvious, and the danger apparent, and the employé has equal knowledge with the employer of its existence, and voluntarily enters upon, or continues in, the service, he assumes all the risk naturally and reasonably incident to the service. Lord v. Pueblo S. & R. Co., 12 Colo. 390, 394, 21 P. 148; B. & C. R. R. Co. v. Liehe, 17 Colo. 280, 283, 29 P. 175; Denver Tram. Co. v. Nesbit, 22 Colo. 408, 411, 45 P. 405; D. & R. G. R. R. Co. v. Scott, 34 Colo. 99, 106, 81 P. 763. Appel v. Buffalo, N.Y., etc., Railroad, 111 N.Y. 550, 19 N.E. 93, was similar in its facts to the case before us. A brakeman was employed in coupling cars in the yard of the defendant. While so engaged, his foot was caught in an unblocked frog, and he was run over and killed. The Court of Appeals held that, 'in accepting and continuing in the employment, the deceased assumed the hazard of all known and obvious dangers, and that he was chargeable with notice of the difficulty in removing the foot when caught in the frog, and of the danger to be apprehended therefrom, and therefore that a cause of action was not made out, and a refusal to nonsuit was error.' To the same effect is the Southern P. Co. v. Seley, 152 U.S. 145, 14 S.Ct. 530, 38 L.Ed. 391.

It is conceded by counsel for appellee that this rule would apply and appellee would have assumed the risk of the unblocked guard rails, except for the statute known as the 'Frog Blocking Statute' (Sess. Laws 1897, p. 258, c. 69), which, he contends, abolished the doctrine of the assumption of risk occasioned by the failure to block frogs and guard rails as required by its provisions. In other words, the claim is that the statute, having imposed a specific duty upon the railroad company, it is not within the power of the company and its employés, by contract or otherwise, to relieve the company from the performance of such duty or liability for an injury resulting from its failure to discharge such duty. The first section of the statute enacts that it shall be the duty of railroad companies to block their frogs and guard rails, specifying the manner in which such blocking shall be done. The second section provides as follows: 'In all trials in all courts in...