Denver & R.G.R. Co. v. Peterson

• Decision Date: 02 June 1902
• Citation: 30 Colo. 77,69 P. 578
• Parties: DENVER & R. G. R. CO. v. PETERSON.
• Court: Colorado Supreme Court

69 P. 578

30 Colo. 77

DENVER & R. G. R. CO. v. PETERSON.

Supreme Court of Colorado

June 2, 1902

Appeal from El Paso county court.

Action by Albert Peterson against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Appeal dismissed and cause redocketed on error. Reversed.

Steele J., dissenting.that of a common carrier or only that of a warehouseman, is one of law to be determined by the court.

Wolcott, Vaile & Waterman (W. W. Field, of counsel), for appellant.

Orr &amp McKesson, for appellee.

CAMPBELL C.J.

The cause was docketed as an appeal from the county court of El Paso county. This court has jurisdiction to review the judgment by writ of error, but not on appeal. In such circumstances, our statute provides that the appeal shall be dismissed, and the cause redocketed on error. Orders so providing are therefore entered. Mills' Ann. Code, § 388a. The action was brought by appellee, as plaintiff below to recover of the railroad company the sum of $89 on account of the failure by defendant to deliver to the plaintiff a certain hackney cart, which defendant received from plaintiff for the purpose of transporting the same, as a common carrier for hire, from some point in the East to the city of Colorado Springs. There is no question as to the delivery of the cart by plaintiff to defendant for the purpose designated, and the latter admits that it has never redelivered it to plaintiff. It justifies its failure to do so upon the ground that through no fault of its own, the cart was destroyed in a fire which burned its freight depot at Colorado Springs, in which the cart was stored. The plaintiff alleges that such fire was caused by the negligence of the defendant company. Upon the issues joined there was a judgment for plaintiff for $85, which the defendant has brought here for review. Numerous errors are assigned, but the argument is confined to a discussion of the insufficiency of the evidence to show negligence and to sustain the verdict, to errors in giving and refusing instructions, and to rulings upon the evidence. The case was begun before a justice of the peace, and afterwards taken to the county court by appeal, where the judgment here attacked was rendered. There being no pleadings, the issues involved must be determined from an examination of the evidence and the instructions of the court. The plaintiff, in his brief, charges defendant with negligence in the following particulars: (a) That the railroad company negligently allowed inflammable material to accumulate and remain on its right of way around its freight depot, and that sparks from one of its engines reached this material and set fire to it, which thence spread to the freight depot, and destroyed the cart; (b) that it operated one of its locomotives, which, because not properly equipped or kept in repair, emitted live sparks in passing the depot, which were allowed thus negligently to escape from the locomotive and start the fire in question; (c) that its freight depot and surrounding platforms were negligently constructed, so that waste and inflammable material could and did accumulate under them; (d) that it negligently failed to provide any reasonable or adequate means for extinguishing fires in its freight depot. And in all of said particulars it was charged that the defendant did not exercise the ordinary care required of it in the circumstances of the particular case, and that such negligence, either in whole or in part, was the direct and proximate cause of the injury to the plaintiff.

1. The most important (in fact, the pivotal) question in the case grows out of the assignment of the appellant that the verdict is so manifestly against the credible and satisfactory evidence as to indicate bias or prejudice on the part of the jury. The established rule in this jurisdiction is that, where there is substantial conflict in the testimony, the judgment of the trial court will not be disturbed. To this general rule there are well-known exceptions, as illustrated in the following cases: Rhode v Steinmetz, 25 Colo. 308, 315, 55 P. 814; Marble Co. v. Mattice, 22 Colo. 547, 558, 45 P. 432; Mitchell v. Reed, 16 Colo. 109, 26 P. 342,-a case in which the judgment was reversed upon the same ground as here. See Mills' Ann. Code, p. 474, where a number of similar cases are collected. One exception is that, where the verdict is manifestly against the weight of the evidence, it will be set aside by the appellate tribunal. We think that the case at bar comes under this recognized exception, as the review of the only evidence which tended to establish negligence on the part of the defendant abundantly shows. The plaintiff produced two witnesses,--young girls, aged 10 and 12, respectively, who were in their home, about 400 feet northeast of defendant's depot, in which plaintiff's cart was stored. When the fire began, they were looking out of the window towards the depot. They testified that, a few minutes before the fire broke out, locomotive No. 553 passed the freight depot, going in a northerly direction; and one of them testified that it was throwing off a good deal of smoke, and she saw sparks of a fiery red color escaping from a small hole, about three-quarters of an inch wide, in the smokestack. The day was clear and bright, with a strong wind from the southwest, blowing at the rate of about 50 miles an hour. This witness testifies that she did not notice the hole very much at that time, but had noticed it about a week before, when this engine was switching in the yards. There was also testimony by three or four of plaintiff's witnesses that they saw this particular engine in the yard at that time. Nothing particularly attracted their attention to it that would tend to fix in their memory its number. It was merely a casual observation. Two of them testify that this engine was one which the defendant company used in hauling the regular passenger trains between Colorado Springs and Manitou, a distance of four or five miles, and that between trains it was also employed in switching in the Colorado Springs yard. Three witnesses for plaintiff were produced who testified that about two weeks after the fire they made an examination of this engine at the town of Manitou, and there discovered, as they say, the hole in its smokestack, to the existence of which, and the escape of sparks therefrom on the day of the fire, the two little girls testified. The object of this testimony, of course, was to show negligence by the company in failing either properly to equip or keep in repair the smokestack of this particular engine, and that it was due to its neglect in this respect that the fire occurred which resulted in the destruction of plaintiff's cart. The defendant produced the engineman, the fireman, and the brakeman of the Manitou passenger train, all of whom testified that locomotive No. 553 was not on the day of the fire in use either in the yards at Colorado Springs, or between there and Manitou, but that the locomotive then used was No. 554,-a companion engine, of the same size, pattern, and general appearance. There was not a particle of evidence that there was any defect of any kind in locomotive No. 554. Another engineman of the company was then produced, who testified that upon the day of the fire he had charge of engine No. 553, and it was then being used between the city of Denver and Petersburg, a distance of about 70 miles north of Colorado Springs, and was there all the day; part of the time being used to block a crossing on the railroad track over which an attempt was made to build a street railway track. Other witnesses from the general shops of the company at Burnham, a suburb of Denver, also testified to the presence of locomotive 553 upon that particular day at or near Denver. It is a rule of the defendant company to keep a daily record of each locomotive in use upon its road. The engineman is required by these rules to make a daily report as to where he has used his locomotive, and this report is sent to the proper officer at the general shops at Burnham, and is then spread upon the proper records of the company, in a book kept for that purpose. These records were produced, and they show that this engine was not in Colorado Springs between the 17th day of September and the 11th day of October, and upon the day of the fire it...