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

• Decision Date: 20 February 1885
• Citation: 8 Colo. 163,6 P. 149
• Parties: DENVER, S. P. & P. R. CO. v. PICKARD.
• Court: Colorado Supreme Court

6 P. 149

8 Colo. 163

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

Supreme Court of Colorado

February 20, 1885

Appeal from the district court of Chaffee county.

Teller & Orahood, for appellant.

Browne & Putnam, for appellee.

BECK, C.J.

This was an action against the railroad company for damages alleged to have resulted to the plaintiff from its negligence. Judge COOLEY says:

'Where negligence is the ground of an action, it devolves on the plaintiff to trace the fault for his injury to the defendant, and for this purpose he must show the circumstances under which it occurred. If from these circumstances it appears that the fault was mutual, or, in other words that contributory negligence is fairly imputable to him, he has, by showing them, disproved his right to recover.' Cooley, Torts, 673.

The plaintiff's injury, complained of in this case, was serious and permanent, and by the verdict of the jury and judgment of the court he was awarded, as damages therefor, the sum of $25,000.

The first question presented for our consideration is whether the court erred in denying the motion for nonsuit interposed by defendant's counsel at the close of plaintiff's direct testimony. A proper determination of this question involves the decision of two other legal questions arising upon the facts in evidence, viz.:

First. Was the station Divide, where the injury was received, a regular passenger station on the defendant's road, where its trains were legally obliged to stop for passengers? Second. Did the legal relation of carrier and passenger subsist between the parties at the time of the injury?

In support of the proposition that Divide was a regular passenger station, plaintiff introduced in evidence, against the objections of the defendant, a time-table issued by the officers of the railroad company, and which went into effect on the day of the accident. The pleading was as follows:

'The Denver South Park & Pacific Railroad Time-table, No. 37. To take effect Thursday, October 21, 1880, [8 Colo. 165] at 12:15 o'clock A. M. For the government of employes only. The company reserves the right to vary therefrom at pleasure.'

The table contains the names of the various stations upon the line of defendant's road, including the station Divide, with the times of the arrival of trains thereat. In a note at the bottom it is stated that flag stations are designated by a star. The station in question is not so marked. While the evidence was admissible, in our judgment, in connection with other facts bearing upon the question, it falls far short of proving the fact sought to be established. It does not purport to be an advertisement for the information of the traveling public, but, on the contrary, every person into whose hands such card may fall is advised against such a conclusion, and that it cannot be relied upon for such purposes.

In Beauchamp v. International & G. N. Ry. Co. 56 Tex. 239, it was held that a time-table, which on its face announces that it is for the government and information of employes only, and, in terms, reserves to the company the right to vary therefrom at pleasure, is not admissible in evidence in a suit for damages against the company for not stopping at a place mentioned therein. Perhaps that ruling is not applicable here, owing to the fact that other evidence was submitted upon the same point. Plaintiff testified that the company's station agent at Buena Vista, where plaintiff resided, and where he held the office of postmaster, gave him one of these cards on the day preceding the accident, to be used in making up the mails. Joseph Nevitt, deputy-postmaster at Divide, testified that Divide was a regular station, but his answers to a few questions disclose his ignorance of the subject:

' Question. Did the trains always stop there? Answer. Whenever they felt inclined. Q. What do you call a regular station and a flag station? A. I am not railroad man enough to define it. Q. And you think you are able to say positively that was not a flag station? A. I am, by their own actual time-card.'

He further testified that defendant's master of transportation, John McCormick, had previously declared to him that Divide was a regular station; that it was the duty of engineers to stop their trains there, and requested the witness to report those who did not do so. It does not appear that the declarations of McCormick had been communicated to the plaintiff, so they certainly did not influence his conduct. Nor did the fact that one of these cards was sent to him for the special purpose mentioned, by an employe of the defendant, previous to his injury, warrant him, in view of the precautionary advice therein contained, in relying upon it for any other purpose. But the plaintiff's testimony disclosed other facts with which he was acquainted, and which have an important bearing on the question. There was at this station neither a station-house, ticket-office, nor waiting-room. No tickets were sold here for any point on the line, nor was there a station agent or a railroad employe in the place. There was a platform beside the track, such as were used at other stations, but even this did not belong to the company, the witness Nevitt stating that it was his own private property. The latter fact is not material, however, since the company used it when it had occasion to do so. Plaintiff's witnesses all agree that trains did not regularly stop at this station, some of them saying it was necessary to flag them to have them stop. We consider the testimony wholly insufficient to show that Divide had been advertised either to the public or to the plaintiff as a regular passenger station. It certainly does show that it was not used as such. Regarding the relation which the plaintiff bore to the railroad company, his counsel insist that going upon the platform with the bona fide intention of taking the train and paying his fare, consummated the relation of carrier and passenger between the parties. It is conceded that he held no ticket, but he testified to his ability to pay his fare, which counsel say was sufficient. In support of the proposition that plaintiff sustained the relation of a passenger, the following is quoted from Shear. & R. Neg. § 262:

'Any acts indicating on the one side an offer or request to carry or to be carried, and on the other an acceptance of such offer or request, are sufficient. It is not necessary, in order to create the relation of carrier and passenger, that the latter should have actually entered the vehicle, much less that it should have started on the journey without him.'

Other parts of the same section are germane to the facts of the present case, viz.: 'A passenger is a person who undertakes, with the consent of the carrier, to travel in the conveyance provided by the latter. * * * Where the carrier provides a waiting-room for passengers, entry into that room, with intent to travel under the carrier's charge, is sufficient to give the rights of a passenger. Where it is the practice of the carrier to stop for passengers when hailed, the fact that he stops for a passenger hailing him is sufficient evidence that he accepts such person as a passenger; and from that moment the relation begins.'

The rule of this section would not seem to include a case where no waiting-room was provided, no tickets sold, and where the carrier did not stop for the passenger, and where the plaintiff is unable to testify or prove that the carrier was aware of his intention to get upon the train. Counsel also quote to the same proposition the following detached sentences from Hutch. Carr.: 'Payment of fare or purchase of ticket not required.' Sections 565, 568. 'Waiting at station for expected train is enough.' Section 559. 'Relation arises without priority of contract.' Section 567. 'Averring a readiness to pay fare is sufficient.' Section 565, note 2. A reference to the foregoing sections shows that these general expressions are materially qualified by the context; for example, section 465:

'Taking his place in the carrier's conveyance, with the intention of being carried, creates an implied agreement upon the part of the passenger to pay when called upon, and puts him under a liability to the carrier, from which at once spring the reciprocal duty and responsibility of the carrier.'

Sections 566, 567, relate to the carrying of persons gratuitously, and upon free passes. The authorities referred to in note 2, § 565, relate to cases where passage is taken without prepayment. It is apparent that these citations do not sustain the proposition.

The rules cited in Thomp. Carr. Pass. 43, are equally inapplicable to the facts in the case before us. It is there said that payment of fare is not necessary to create the relation, but that going into the depot or waiting-room of a railway company and waiting for the means of conveyance with the bona fide intention of becoming a passenger, or upon a steam-boat, in good faith, to take passage thereon creates the relation although no fare has been paid. But it is claimed that a custom existed at this station for which the defendant is responsible, and which, in connection with the facts proven, brings the case within the rules of the foregoing authorities. It is alleged that it was the practice of the defendant's employes to slow up the trains in passing this station so that passengers could get on or off as they desired, and that travelers knowing or becoming informed of the custom frequently availed themselves of it; that the plaintiff had been told of this custom, also that trains frequently passed by without stopping, and that he must be prepared to get aboard the train while in motion. It is argued that a custom to slacken speed for the purpose of enabling passengers...