Denver & R.G.R. Co. v. Vitello

Citation21 Colo.App. 51,121 P. 112
CourtCourt of Appeals of Colorado
Decision Date08 January 1912
PartiesDENVER & R.G.R. CO. v. VITELLO.

Appeal from District Court, City and County of Denver; Hubert L Shattuck, Judge.

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

Elroy N. Clark and Vaile & Waterman, for appellant.

Thomas M. Morrow, for appellee.

SCOTT P.J.

This case was before the Supreme Court upon a former hearing, and is reported in 34 Colo. 50, 81 P. 766. On the 2d day of May, 1901, and at Belden Siding on the road of the appellant, some men, among whom was Vito Vitello, the husband of the appellee, were engaged in removing a mud and rock slide which had come down upon the track from the mountainside, which slide had occurred several days before. At this point the valley of the Eagle river is very narrow. Practically all of the valley between the mountain and the river was occupied by the tracks, of which there were three. These were in the form of a sharp curve; the main tracking being nearest the river. At the time and at the station of Red Cliff about 1 1/2 miles west from Belden Siding and on an upgrade, four cars and a caboose were detached from the engine and left on the main track in charge of a brakeman named Dugan. This brakeman walked away and left these cars without setting the hand brakes and apparently paying no further attention to them, or in any way attending to his duties in that respect. Within 15 to 25 minutes after the engine was detached and the cars left in charge of the brakeman, and apparently because of his failure to set the hand brakes, which it was his duty to do, and the air apparently having escaped from the air brakes, these cars started down the track, and with constantly increasing speed toward Belden Siding, where Vitello and his associates were at work. The runaway cars were discovered barely in time for the workmen to step from the track. Two of the cars proceeded further than the others, and were derailed near where the men were at work, the body of the cars being thrown toward the mountainside and turned over, the trucks remaining on the track. One of these cars was loaded with scrap iron, such as is usually found from breakage and non-use in the operation of railroads, and which was afterward found spilled and scattered about on the ground. Immediately after the wreck of the cars, the dead body of Vito Vitello was found. He had been struck on the head and killed. The accident occurred about 10 o'clock in the morning, and it appears that each morning after the ground on the mountainside had thawed, rocks at times came down upon the track of the slide, bounding and rolling, and occasionally into the river. It is one of the contentions in this case that Vittello may have been killed by one of such rocks.

It is strenuously urged by counsel for appellant that the complaint is not sufficient, in that it does not charge which of the employés of the defendant below were chargeable with the negligence complained of, and that the trial court erred in overruling the defendants' motion to require the plaintiff to make her complaint more specific and certain in that respect. The allegations under consideration are as follows: "(2) That on or about May 2, 1901, one Vito Vitello, husband of plaintiff, was employed by the defendant as a sectionman, and was engaged in the duties of his employment on defendant's said road at a point about 1 1/2 miles northwest of Red Cliff, in said county of Eagle, and state of Colorado, near what is known as Belden switch, at which point there is a curve in said road; that while said Vito Vitello was so engaged in his work for defendant the said defendant, its agents and employés, having charge or control of the train on its said road, negligently, carelessly and without fault or knowledge of the said Vito Vitello, and who was himself in the exercise of due care and diligence at said time, permitted said train to escape and to run wildly and uncontrolled down a steep grade over its line of road where said Vito Vitello was so employed, at a high and dangerous rate of speed; that, when the said Vito Vitello and others so employed with him saw said cars approaching, they were unaware of the fact that they were running at a high and dangerous rate of speed, and stepped aside several feet from the track to permit the same to pass, but on account of the reckless, careless and negligent manner in which said cars were allowed to run, and the high and dangerous rate of speed they had attained when said cars reached the curve where said Vito Vitello was so employed, they jumped from the tracks of defendant and ran into and upon and over the said Vito Vitello, killing him instantly." This alleged error was apparently not urged in the Supreme Court upon the former hearing. An examination of appellant's brief in that case discloses no reference to this question. The ruling of the court now complained of occurred prior to the first trial.

The only case cited by appellants seeming to support this contention is that of the A., T. & S.F.R. Co. v. O'Neill, 49 Kan. 367, 30 P. 470. This case is not altogether in point, for there the failure of the complaint to designate the particular servant chargeable with the acts of negligence was but one of other and more important alleged defects. It appears, also, in that case that the plaintiff was present and working as one of the train crew at the time of the injury. In this case the deceased was working about 1 1/2 miles distant and none of those present at the time of the accident, nor the plaintiff, could reasonably be expected to know which of the particular servants of the defendants' train crew were chargeable with the fault, while, on the other hand, such information was peculiarly within the knowledge of the defendant. In fact, all of the testimony upon this point was by servants of the defendant and members of the train crew at that time. It cannot be the purpose of the law to require such rigid rule of pleading as will in any case be the equivalent of a denial of the right to a judicial hearing and determination of an alleged substantial right. To adopt this contention of the appellants in this case would seem to be nothing less. To whom could the plaintiff go in the case at bar for such information as would meet the defendant's demand, except to the defendant or its servants engaged in the operation of its train? The defendant is here complaining of the insufficiency of the complaint in that particular, and the prudent management of a railroad is not to be expected to retain employés who willingly confess such negligence as endangers the lives of persons, and destroys the company's property.

The authorities are not in harmony as to the proper method of pleading negligence. But the generally accepted rule seems to be that negligence being the ultimate fact to be pleaded, and not a mere conclusion of law, a complaint charging defendant with an act injurious to plaintiff, with a general allegation of negligence in the performance of the act, is sufficient, at least as against a general demurrer for the want of sufficient facts, without stating the details or particulars of the act causing an injury, unless the particular acts alleged are such that they cannot be negligence under any possible state of facts provable under the allegations of the complaint.

It is true that the act done or omitted should be stated with a reasonable degree of particularity. This rule further requires that when a motion to make more definite and certain is interposed, raising the objection that the allegations are too general, the particulars of the negligence must be set forth, unless the facts are within the knowledge of the defendant, and are such that plaintiff cannot be expected to know them. The latter proviso seems applicable here. This doctrine finds substantial support in the following authorities: Cyc. 571-573; Am. & Eng.Enc.P. & P. 334, 335; Chicago City R. Co. v. Jennings, 157 Ill. 274, 41 N.E. 629; Cox v. Providence Gas Co., 17 R.I. 199, 21 A. 344; San Antonio R. Co. v. Adams, 6 Tex.Civ.App. 102, 24 S.W. 839; Eldridge v. Long Island R. Co., 1 Sandf. (N.Y.) 89; Cedersen v. Ore. R. Co., 38 Or. 343, 62 P. 637, 63 P. 763; Missouri P. R. Co. v. Hennessey, 75 Tex. 155, 12 S.W. 608; Texas, etc., R. Co. v. Easton, 2 Tex.Civ.App. 378, 21 S.W. 575.

On the former hearing it was contended by the appellant and determined by the Supreme Court that the negligent acts were those of appellant's brakeman, Dugan. The same contention is made here, and we see no good reason to disagree with it. Clearly, then, upon this trial, the defendant below was not prejudiced by the alleged error. Under the circumstances in this case, we find no error in the rule of the court denying the motion of the defendant to require the plaintiff to make her complaint more specific and certain.

A further contention of the appellant is that there was no evidence of the cause of Vitello's death, and that for this reason the court erred in refusing to direct a verdict for the defendant. We have read carefully the abstracts of the evidence, both in the present case and upon the former hearing, and find no material or substantial difference upon this point. Upon the former trial the court instructed the jury that it appeared from the evidence that "the cars left the rails near the place where the plaintiff's husband was working and struck and killed him." This instruction was held to be error, and the Supreme Court said "Inasmuch as this case must be remanded for new trial, we desire to state that the instruction of the court, as to what appeared from the undisputed evidence in the case, was perhaps too broad. It may be...

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  • Louisville & N.R. Co. v. Johns
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    ...106; Rob. & W.Employ.Liab. (3d Ed.) 300.' Caron v. Boston & A. R. Co., 164 Mass. 523, 42 N.E. 112, 113. In Denver & R. G. R. Co. v. Vitello, 21 Colo.App. 51, 121 P. 112, 118, the court held that '* * * four cars and a caboose, from which the engine had been detached at the time the cars sta......
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