Denver & S. L. Ry. Co. v. Lombardi

• Decision Date: 21 April 1930
• Docket Number: 12386.
• Citation: 87 Colo. 311,287 P. 648
• Court: Colorado Supreme Court
• Parties: DENVER & S. L. RY. CO. v. LOMBARDI.

287 P. 648

87 Colo. 311

DENVER & S. L. RY. CO. v. LOMBARDI.

No. 12386.

Supreme Court of Colorado

April 21, 1930

Rehearing Denied May 12, 1930.

In Department.

Error to District Court, City and County of Denver; Geo. F Dunklee, Judge.

Action by Frank Lombardi against the Denver & Salt Lake Railway Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Smith Brock, Akolt & Campbell, D. W. Oyler, and Elmer L. Brock, all of Denver, for plaintiff in error.

A. X Erickson, Robert J. Kirschwing, Albert E. Sherlock, and Emory L. O'Connell, all of Denver, for defendant in error.

MOORE, J.

Frank Lombardi sued the railway company to recover damages for injuries occasioned by defendant's alleged negligence and obtained a verdict and judgment in the district court which the railway company now seeks to review.

Of the several acts of negligence alleged in the complaint, only one need be incorporated herein. It is charged that the plaintiff while in the performance of his duty as section foreman was engaged in moving falling rock and débris from defendant's roadbed; that because of the possibility of additional rock falling at the place where he was working and of the danger incident thereto, he stationed John Quintano one of defendant's section hands, as a lookout and guard to warn him of falling rock and débris; that while so engaged, plaintiff was struck by a falling rock and received a depressed fracture of the skull; that Quintano, in the exercise of reasonable care, should and could have seen the falling rock in time to warn the plaintiff, who thereafter in the exercise of reasonable care could have avoided the accident; that Quintano failed to observe said falling rock and to warn the plaintiff; and that the proximate cause of plaintiff's injury was Quintano's said negligence. Defendant denied negligence and alleged contributory negligence and assumption of risk.

The plaintiff testified that on the day in question he was attempting to remove a rock 'more than three feet high' from the track; that 'we were shooting it with powder. I instructed Quintano to watch for falling rock. The rock we were stooting was about five feet from the portal of the tunnel. I was stooping over the rock, holding the powder, when something struck me on the head and I was gone. I fell down and don't know what happened.' John Quintano testified that at the direction of the plaintiff, he stood on the side of the track opposite the mountain side to watch for rock; that 'I saw the rock that his Lombardi come down. It came down on top of the hill from the mountain side. I hollered to watch out. He tried to run away but did not have much chance.' Eustacio Martinez, another section hand testified: 'I heard John Quintano shout the warning. He said watch out. I did not see the rock coming. I seen Frank fall down.'

It is contended that the court erred in refusing to grant defendant's motion for a directed verdict in its favor for the reason that there was no evidence of negligence and that the plaintiff assumed the risk.

It is urged that the negative evidence of the plaintiff that no warning was given is insufficient to overcome the positive testimony of Quintano, corroborated by that of Martinez, that he warned plaintiff of a falling rock. The fact that plaintiff was injured while in a position of probable danger from falling rocks, coupled with the cardinal instinct of self-preservation, corroborates plaintiff's testimony and leads to the inference that the warning was not given, or if given was not sufficiently loud to have been heard by the plaintiff. The jury, by their verdict, must have taken this view of the case. The testimony being irreconcilably conflicting, the question as to whether or not a warning was given was for the jury.

It is further contended that the plaintiff cannot recover because he assumed the risk and, in this regard counsel relies upon the case of Chesapeake & O. Ry. Co. v. Nixon, 271 U.S. 218 46 S.Ct. 495, 70 L.Ed. 914. In this case, it was held that a railroad section foreman charged with the duty of inspecting and repairing the track assumed the risk of being run down by a train while riding on a railroad velocipede, and that the negligence of the engineer and fireman of the train in failing to observe and warn him created no cause of action. This case is based upon the proposition that the railroad owed no duty to the section foreman to look out for and warn of impending danger. Of course,...