Denver & R.G.R. Co. v. Pilgrim

• Decision Date: 11 January 1897
• Citation: 9 Colo.App. 86,47 P. 657
• Parties: DENVER & R.G.R. CO. v. PILGRIM.
• Court: Colorado Court of Appeals

47 P. 657

9 Colo.App. 86

DENVER & R.G.R. CO. v. PILGRIM.

Court of Appeals of Colorado

January 11, 1897

Appeal from district court, Arapahoe county.

Action by Christopher A. Pilgrim against the Denver & Rio Grande Railroad Company to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

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

Caypless & Brown, for appellee.

BISSELL J.

In the winter of 1892 and 1893, Pilgrim was a Pullman car porter working on a sleeper attached to a train running between Alamosa and Denver. One day in February the train to which this sleeper was attached reached Antonito, and left there on its way for the trip. From Antonito, for about 40 miles, the Rio Grande Railroad follows an up grade through the mountains, until it reaches the divide at the top of the range. On that day Cole Lydon, the superintendent of the Fourth division of the road, was on the train, in the discharge of his duties. Before leaving Antonito he had been advised by some of the operators of a snowstorm in the mountains, and he arranged the train for the purpose of making time, and to overcome the difficulties which would result from the storm. The way in which the train was made up will be stated, though this is not deemed of very vital consequence. A good deal of stress was laid at the trial on this fact, and it is much discussed in the briefs, and might possibly have had a good deal of influence with the jury. As we read the case, however, it was not a pivotal question, and it is only referred to because an instruction based on it lacked some limitations which were requisite and important. There was an engine with a snowplow at the head of the train; behind this was a flanger; and thereafter came two engines. The air controlling the brakes on the train was connected with the one in the rear. Behind the locomotives there was a baggage car, coach, the sleeper in question, and a caboose, on which the superintendent was riding, and wherein were carried laborers to aid in a case of emergency. There was some testimony offered which tended to show that the use of a flanger between the forward locomotive and those attached for hauling purposes was a dangerous method of coupling a train, since the purpose of the flanger was to cut the snow out between the tracks, and running, as it necessarily must, for this purpose, very close to the rails, was in danger of catching obstructions and causing accidents. The superintendent, however, and the engineers and conductors connected with the train, assert its frequent use in this manner, and its safety and propriety. The plaintiff produced rules of the company in which directions were given with reference to the severance of a train into sections under some circumstances, and which, according to the testimony of the superintendent, could not well be done in a snowstorm. This is likewise of little consequence, but it is stated because some reliance is placed on this fact in the argument. After the train left Antonito it struck snow 22 or 23 miles before it reached the point of the accident, which was near what is called the "Farrow Cut." Just at that cut there is a very sharp curve, of about 1 1/2 per cent., and the grade of the road at this point is about 75 feet to the mile. The plaintiff, in his complaint, charged that the accident was occasioned by the negligence of the company in running and operating its train, and charged that the accident happened in the cut which was on this curve. The plaintiff's theory was that the accident was occasioned because the train was made up in this particular manner, and run over this curve, and through the cut filled with snow and that by reason of such combination of circumstances the cars were forced from the track. There is no question that the cars left the track, went down the embankment, and that the porter was carried with the sleeper to the bottom, was quite severely cut about the hip, and suffered some loss of time and injury. The company does not question the amount of the judgment, or the extent of the recovery in case the judgment should be affirmed. On the conclusion of the plaintiff's case, as well as after the testimony was all in, the company requested the court to charge the jury to find for the defendant, and asked several instructions which were refused, and gave others to which exceptions were taken. In discussing the case we will group the errors, rather than discuss each, and state generally the reasons which influence us to reverse the judgment.

The appellee insists that his position on the train, as a porter in the Pullman car, in the employ of the Pullman Company took him out of the class known as "fellow servants," and that he may recover his damages even though it should appear that the accident was occasioned by the negligence of those engaged in operating the train. It has been decided in this and other jurisdictions (Railway Co. v. Kelley, 4 Colo.App. 325, 35 P. 923) that an express messenger who runs on a train, looking after the business of the express company, under contract between the express company and the railroad, is not a fellow servant, and that none of the principles which control actions by fellow servants are operative. The appellee, of course, insists that, as a Pullman porter, he is brought into the same relations with the railroad company, and may recover on proof of the happening of an accident, like a passenger, who, by making this proof, thereby casts the burden on the railroad company to show care and due caution in the management and operation of their trains. This is probably a debatable question, because of the relationship which the porter sustains to the passengers traveling, although the precise point has been adjudicated in favor of the porter in another state. We do not intend to decide this question. It may be...