Denver & Rio Grande R. Co. v. Frederic

• Decision Date: 06 April 1914
• Citation: 140 P. 463,57 Colo. 90
• Parties: DENVER & RIO GRANDE R. CO. v. FREDERIC et al.
• Court: Colorado Supreme Court

140 P. 463

57 Colo. 90

DENVER & RIO GRANDE R. CO. v. FREDERIC et al.

Supreme Court of Colorado

April 6, 1914

Appeal from District Court, El Paso County; J. W. Sheafor, Judge.

Action by George T. Frederic and another against the Denver & Rio Grande Railroad Company. From a judgment for plaintiffs, the defendant appeals. Reversed and remanded.contribution to his parents, is inadmissible. Its admission is fatal error because it is impossible to say how far it may have affected the award of the jury.

E. N. Clark and J. G. McMurry, both of Denver, for appellant.

R. L Holland, of Colorado Springs, Taylor R. Young, of St. Louis Mo., Willis L. Strachan, of Colorado Springs, for appellees.

BAILEY J.

The suit was filed in the district court of El Paso county December 8th, 1909, by appellees, the parents of the deceased, against the railroad company, appellant, alleging that by its own careless, negligent and unskillful acts, and those of its officers, agents, servants and employés, in operating one of its trains, the death of Frank G. Frederic their unmarried son twenty-seven years old, was occasioned. On the 14th of August, 1909, deceased was riding on the defendant's north bound passenger train on a free pass, and met his death through a head-on collision between that and another passenger train of the company near Husted, Colorado. The company admits negligence as charged, but contends that the complaint and proofs fail to make out a case under the statute; and it also relies upon the following agreement in the free pass to negative liability:

'The person accepting this free ticket assumes all risks of accidents, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by its agents or otherwise, for any injury to the person or for any loss or damage to the property of the passenger using this ticket, who hereby agrees that the company shall not be considered as a common carrier, or liable as such.

'Not good unless signed by the person named hereon, and if presented by any other person the conductor will take up this ticket and collect fare' (signed).

The action was brought under section 2056, R. S. 1908, which reads as follows:

'Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employé, whilst running, conducting or managing any locomotive, car or train of cars, * * * the corporation, individual or individuals in whose employ any such officer, agent, servant, employé, master, pilot, engineer or driver shall be at the time such injury is committed, * * * shall forfeit and pay for every person and passenger so injured the sum of not exceeding five thousand dollars, and not less than three thousand dollars, which may be sued for and recovered,' etc.

Upon trial, the court instructed the jury that their verdict under the pleadings and evidence should be for the plaintiffs for not less than three thousand, nor more than five thousand dollars, the award being for the larger sum. The court overruled a motion for a new trial and entered judgment on the verdict, which the company brings here for review.

The first objection is that the complaint fails to state, and the proofs to establish, a cause of action under the statute upon which plaintiffs rely. It is alleged that 'said train was by defendant and its officers, agents and servants, so negligently, carelessly and unskilfully operated that it collided violently head-on with another train of the defendant company,' while the language of the statute allows recovery for the death of any person resulting from the 'negligence, unskilfulness or criminal intent of any officer, agent, servant or employé, whilst running, conducting or managing any locomotive, car or train of cars,' etc. The contention is that the negligence of the company as such is not covered by the provision, but rather that the statute applies only to officers, agents, servants or employés, and is limited solely to acts of negligence committed by such persons whilst running, conducting or managing any locomotive, car or train of cars. In particular it is urged that the statute does not apply to the negligence of a person who does not engage at any time in the actual running, conducting or managing of locomotives, cars or trains. A somewhat similar contention was made in Whittle v. Denver & Rio Grande Railroad Co., 51 Colo. 382, 118 P. 971, a case where in a suit brought under the same provision it was sought to hold the railroad company liable for the negligence of its station agent, in failing to communicate train orders to the train crew, resulting in a head-on collision. Those facts were set out at length in the complaint, it being there contended that it was the purpose of the statute to limit its provisions to those employed in the immediate charge of the train. But this court declined to assent to that narrow construction, and reversed a judgment of dismissal, following the election of plaintiffs to stand by their complaint, to which a general demurrer had been sustained below, and remanded the case. While we do not commend the complaint under consideration as a model, still that it fairly meets the essential requirements of the section under which the action was brought cannot well be doubted. Charging negligence directly against the company, if a fault, may be regarded as surplusage, and certainly does not constitute serious or reversible error. Negligence was also charged against the officers, agents and servants of the company in operating the train. The allegation that the officers, agents and servants of the company so carelessly, negligently and unskillfully operated the train is equivalent to charging that this was done by some one or more of them while engaged in running, conducting or managing the train, so that a case was made out under the provision in question, especially in view of the Whittle decision, supra. This is equally true even though the word 'operate' may be said to be of broader significance than the expression 'whilst running, conducting or managing any locomotive, etc.' The word 'operate' would certainly include and cover everything contained in the statutory expression, even though it might include matters outside and beyond that. It is, therefore, apparent that if, in fact, the accident was due to negligence of the character contemplated by the statute, such negligence was included in the allegations of the complaint, and the objection that those allegations are too broad cannot be taken in the manner proposed. It may well be that the complaint was subject to a motion to make more specific, or to a special demurrer, but even so, it by no means follows that a cause of action such as contemplated was not stated. The answer admits negligence as charged, and as we hold that the allegations of the complaint include a cause of action under the statute, proof to show just why and precisely how the accident happened was unnecessary.

Other matters urged on this review consist largely in the alleged improper admission and rejection of testimony. First, the court admitted over objection evidence of deceased's earning capacity, habits, character, and contributions made to his father and mother during his lifetime, as a basis for establishing pecuniary loss; and second, the defendant company offered the free pass in evidence to prove the contract relied on to acquit it of liability, which was rejected on objection by counsel for plaintiffs.

The first proposition involves the question of the character of the section quoted, whether penal or compensatory. If penal, the evidence offered as to the earning capacity of deceased and the like was improperly admitted, but if compensatory, then such evidence was competent.

We have separate statutory provisions authorizing civil actions to recover for the wrongful death of persons caused by negligence, which are essentially and diametrically different in their characters, purposes and objects: Section 2056 fixes a penalty for wrongfully causing the death of another under the particular circumstances and conditions therein provided; and sections 2057-2058 give a right to recover damages as compensation for the wrongful death of a person caused by or resulting from the negligence of any person or corporation, dependent upon whether the deceased would have had a cause of action for damages if he had been injured only. These latter sections read as follows:

'Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the party injured.

'All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in the first section of this act, and in every such action the jury may give such damages as they may deem fair and just, not exceeding five thousand (5,000) dollars, with reference to the necessary injury resulting from such death, to the surviving parties, who may be entitled to sue; and also having regard to the mitigating or aggravating circumstances attending any such wrongful act, neglect or default.'

Under section 2056 the amount of recovery is placed at not more nor less than certain sums, without reference to the earning capacity of deceased or amount of damages inflicted, but depends solely upon the...