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

• Decision Date: 03 December 1888
• Citation: 12 Colo. 20,20 P. 340
• Parties: DENVER, S. P. & P. R. Co. v. Wilson et ux.
• Court: Colorado Supreme Court

20 P. 340

12 Colo. 20

DENVER, S. P. & P. R. Co. v. Wilson et ux.

Supreme Court of Colorado

December 3, 1888

Commissioners' decision. Appeal from district court, Arapahoe county.

Action by Robert S. and Maggie B. Wilson against the Denver, South Park & Pacific Railroad Company for damages for negligently causing the death of plaintiffs' son. Judgment for plaintiffs, and defendant appeals. The following are sections from Gen. St. Colo.:

'Sec 1030. 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 employe, whilst running, conducting, or managing any locomotive, car, or train of cars, or of any driver of any coach or other public conveyance whilst in charge of the same as a driver, and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, or in any state-coach or public conveyance, the corporation, individual, or individuals in whose employ any such officer, agent, servant, employe, master, pilot, engineer, or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach, or other public conveyance at the time any such injury is received, and resulting from or occasioned by defect or insufficiency above described, 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-- First, by the husband or wife of deceased; or, second, if there be no husband or wife, or he or she fails to sue within one year after such death, then by the heir or heirs of the deceased; or, third, if such deceased be a minor or unmarried, then by the father or mother, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In suits instituted under this section it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section was not a negligent defect or insufficiency.

'Sec. 1031. 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.

'Sec. 1032. 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 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.'

'Sec. 2529. Every poor person who shall be unable to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy, or other unavoidable cause, shall be supported by the father, grandfather, mother, grandmother, child or grandchild, brother or sister of such poor person, if they or either of them be of sufficient ability. * * *

'Sec. 2530. The children shall first be called on to support their parents, if they be children of sufficient ability, and if there be none of sufficient ability, the parents of such poor person shall be next called on, and if there be no parents or children, the brothers and sisters of such poor person shall be next called on, and if there be no brothers or sisters, the grandchildren of such poor person shall next be called upon, and then the grandparents. * * *'

Code Civil Proc. Colo. § 9, provides that 'a father, or, in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward.'

Teller& Orahood, for appellant.

Browne & Putnam, for appellees.

STALLCUP C.

This action was brought by appellees, under our statute for damages, for the death of their son, occasioned, as is alleged, by the negligence of appellant. From the evidence it appears that on the 18th day of May, 1880, Robert Mack Wilson, son of appellees, 25 years of age and unmarried, was in the employ of appellant in the capacity of fireman upon a passenger engine on the appellant's railroad; that he then was, and previous thereto had been, making his home with his parents, the said appellees, to whom he contributed portions of his earnings. While so upon the engine attached to a passenger train coming from Buena Vista to Denver, through the mountains, near Deansbury, upon said railroad, the engine ran off the track and upset, killing the said Robert Mack Wilson almost instantly; that the accident was caused by a pine knot about 10 inches long which had caught in the pilot some distance back, and was dragged onto a curve in the track, where it caught onto the guard-rail there, stuck fast, and raised the wheels of the engine, running them off the track, so that the engine turned over, and threw the said Wilson out and fell upon him. The appellees allege in their complaint that this knot or stick of wood was upon the track through the negligence of the appellant, and that the accident was by no fault of the deceased. In the answer, appellant denied the negligence charged, and alleged that said accident was occasioned by the want of skill and care of the said deceased, who was then and there attempting to run said engine without the consent and without the knowledge of the said appellant. Verdict was returned, and judgment entered in favor of appellees for the sum of $3,500. It is assigned and argued upon this appeal that the district court erred in admitting certain evidence offered by the appellees, in rejecting certain evidence offered by the appellant, in denying the motion of appellant for judgment of nonsuit, and in giving certain instructions for appellees, and refusing certain instructions requested by appellant.

Of the various assignments of error presenting the questions above mentioned, we find but one well taken. The cause seems to have been carefully tried, and all appellant's objections will be overruled, save the assignment we shall proceed to consider. One Morton was called by appellees, who were plaintiffs below, as a witness. Among other things, he testified that he was in the employ of the appellant company at the time of the accident complained of, as an engineer that with his engine he went over the piece of road where the accident occurred the night before; that he met with obstructions near the same locality, caused by the fire that had for some days been burning in the vicinity; that he found one log, perhaps not quite as long as the table, rolled down on the track, stopped and removed it; that there were no track-walkers or station men on the section, that he knew of; that, as far as his experience went, he knew what the custom was as to track-walkers there;...