Denver, S.P. & P.R. Co. v. Driscoll

• Decision Date: 19 April 1889
• Citation: 12 Colo. 520,21 P. 708
• Parties: DENVER, S. P. & P. R. CO. v. DRISCOLL.
• Court: Colorado Supreme Court

21 P. 708

12 Colo. 520

DENVER, S. P. & P. R. CO. v. DRISCOLL.

Supreme Court of Colorado

April 19, 1889

Appeal from district court, Lake county.

This is an action for damages for personal injuries received by the appellee, who was plaintiff below, while in the employ of the appellant. Appellant was extending its line of railroad, and for that purpose had placed one Manly in full charge of the track laying. Appellee was hired by Manly, and was under his directions and control at the time of the accident. The car upon which appellee was riding at the time was a small flat-car, without brakes. To check the speed of this car in going down grade, a stick was run through a hole in the bottom of the car, and pressed against one of the wheels. This arrangement appears to have answered the purposes of a brake very well, so that on the way down, just before the accident, the man applying this stick had complete control of the car until he took it off, under the instruction of the superintendent in charge, Mr. Manly. At the place of the accident the grade of the road was 90 feet to the mile; and it was made to appear in testimony that the brakeman refused to take off the brake the first time the order was given whereupon Manly ordered him 'to take off the brake, and let the car go,' or 'let her rip.' In obedience to this last order, the brake was removed, and in a very few seconds the speed of the car was beyond control, and the car ran into another car on the track below, killing one man and wounding the plaintiff and others. The trial below resulted in a verdict and judgment for appellee for $1,500. Exceptions were duly reserved at the trial, and the case brought here by appeal. The remaining facts sufficiently appear in the opinion of the court, except the examination of the juror Altman, upon his voir dire. Upon examination of this juror, he answered, among other things, that he had some business dealings with the defendant company; that he had received some special accommodations in the way of commercial rates for traveling; and sometimes received favors in shipping goods over the road; that he expected to continue business and ship over the road; and that this fact might have a little influence with him, and might possibly affect his verdict. If the case should be evenly balanced, he would give the benefit of the doubt to the company. Whereupon appellee interposed a challenge for cause, which was sustained by the court, and the juror excused.

Teller & Orahood, for appellant.

Joseph C. Murphey, for appellee.

HAYT J., ( after stating the facts as above.)

1. The first assignment of error relates to the ruling of the court in sustaining appellee's challenge for cause to M. D Altman, one of the jurors called in the case. It is contended upon the part of the appellant that, as the appellee was bound to maintain the issues in the case upon the trial by a preponderance of the evidence, the answers of the juror only amounted to a statement of that which he would be bound to do under the law, and therefore constituted no cause for challenge. We do not agree with counsel upon this proposition, as from the answers it seems that it was as a favor to the company that he would give it the benefit of a doubt under certain circumstances, and not because the burden of proof was upon the appellee. We think the answers of Mr. Altman were such as to justify the court in sustaining plaintiff's challenge to him; but, aside from this, when a full examination of a juror leaves the question of his competency doubtful, we should hesitate to interfere with the ruling of the trial court thereon. Grady v. Early, 18 Cal. 111.

2. It is contended for appellant that the evidence was insufficient to warrant a submission of the case to the jury, and insufficient to sustain the verdict; also, that the complaint is insufficient to sustain the judgment thereon; that Manly and appellee were fellow-servants, engaged in the same line of duty or service; and that appellee cannot recover for injuries resulting from the negligence of his fellow-servant. There is much conflict in the authorities as to who are to be held as fellow-servants engaged in the common employment, so as to preclude a recovery by one upon the negligence of the other, and it would be extremely...