Denver & Salt Lake Ry. Co. v. Granier

• Decision Date: 27 March 1939
• Docket Number: 14399.
• Citation: 89 P.2d 245,104 Colo. 131
• Parties: DENVER & SALT LAKE RY. co. v. GRANIER.
• Court: Colorado Supreme Court

89 P.2d 245

104 Colo. 131

DENVER & SALT LAKE RY. co. v. GRANIER.

No. 14399.

Supreme Court of Colorado

March 27, 1939

In Department.

Error to District Court, Adams County; H. E. Munson, Judge.

Action by Joseph Granier against the Denver & Salt Lake Railway Company, a corporation, for injuries sustained when struck by an engine of the defendant. To review a judgment for the plaintiff, defendant brings error.

Affirmed.

Smith, Brock, Akolt & Campbell, Elmer L. Brock and J. H. Shepherd, all of Denver, for plaintiff in error.

A. X Erickson and Don B. Oliver, both of Denver, for defendant in error.

OTTO BOCK, Justice.

Defendant in error Granier sued plaintiff in error railway company to recover damages for personal injuries occasioned through the latter's alleged negligence, and obtained a verdict and judgment in the sum of $15,000, which judgment we are asked to reverse. Reference will be made to the parties as plaintiff and defendant, as they appeared in the court below.

Of the several acts of negligence alleged in the complaint only one need here be considered. The sole issue of negligence submitted to the jury by the court's instructions was that, 'The defendant operated its aforesaid engine negligently and carelessly onto and over the plaintiff without any warning or signal of the approach of the aforesaid engine.'

Defendant in its answer denied that it was guilty of negligence, and pleaded assumption of risk and that the accident and injuries 'were the result of the sole negligence of the plaintiff.'

Defendant bases its assignment of errors here on the court's denial of its motion, interposed at the close of the evidence, for a directed verdict.

It appears from the record that the accident occurred on the morning of January 8, 1937, while plaintiff was employed by defendant as a member of a section crew at or near Utah Junction, located about three and one-half miles north of Denver, in Adams county. Utah Junction is the freight terminal of the defendant company. There its shops are maintained, and there its yards for the making up and breaking up of trains, and the interchange of freight cars with other railroads are located.

The evidence reveals that plaintiff is 52 years of age; that under the mortality table he has an expectancy of life of 19.49 years; that he had for many years been employed as a section hand; that he had been employed in the yards of the Union Pacific Railroad Company for a period of 15 years, and had worked for defendant approximately seven months at the time of his injury. One part of the section crew, composed of about six men, was engaged in replacing ties on track 4, and while plaintiff and one George Yaeger were engaged in similar work on track 7 a switch engine moving eastward went onto track 7, passed plaintiff and continued a distance of approximately 80 feet. The engineer at that time saw plaintiff and his fellow workman. Plaintiff was engaged in placing a tieplate under a rail and above one of the new ties, using a maul to drive the plate between the tie and rail. As the engine backed west at a slow rate of speed plaintiff was struck by the locomotive's rear footboard, while his back was turned and as he was in a stooped position. His fellow employee, Yaeger, was outside of the track, unengaged, and in a position to keep a lookout for plaintiff, whose work required his entire energy and attention.

Defendant bases its argument on the assignment of errors: That the court erred in denying its motion for a directed verdict based upon the grounds, first, that there was no evidence of negligence on its part; second, that plaintiff assumed the risk; third, on the denial of its motion for a new trial based upon the ground, among others, that the verdict was excessive.

The asserted negligence was supported by evidence introduced under two theories: one, Yaeger's failure to warn plaintiff of the approach of the engine, and, second, failure of the engine crew to ring the locomotive bell, thereby neglecting to warn plaintiff of the approach of the engine.

Our discussion is confined to the second theory. 'Every fact necessary to support the verdict will be presumed to have been found by the jury in favor of the prevailing party.' 4 C.J. 772. The evidence as to failure to warn, in not ringing the bell, is in conflict. That much is admitted in the record. Was this failure, if supported by evidence, such negligence as would make the defendant liable? We think it was. The general superintendent of defendant testified that, 'When the engine starts moving the bell should be rung, to warn the switchmen and others around there that it is moving.' There was such a rule in effect during the entire period of time that the general superintendent had had supervision over operations, commencing in 1926, and extending to and including the time of the injury involved here. We, therefore, have a rule of the defendant company which was violated, and facts from which the jury could properly find that failure to obey it was the proximate cause of plaintiff's injury. Moreover, this accident did not occur on a straight track; it was on a curve. The degree of curvature was in dispute. Both engineer and fireman testified that in their backup, when the plaintiff was struck, they did not see him on the track.

Counsel for defendant urge that, 'A railroad company in the operation of its trains, and particularly in the operation of its switch engines in the yards, does not owe any duty to the section laborers to keep a lookout for them, but the section laborers are required to rely upon their own watchfulness, and keep out of the way of trains and switch engines.' In support of this proposition they cite Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758; Chesapeake & Ohio R. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 70 L.Ed. 914; Toledo & St. L. & W. R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513.

Defendant places special reliance upon the Aerkfetz case, decided in 1892, many years prior to the enactment of the Federal Employers' Liability Act, 45 U.S. C.A. §§ 51-59, and particularly upon the following language relating to the ringing of bells [145 U.S. 418, 12 S.Ct. 836]: 'The ringing of bells and the sounding of whistles on trains going and coming, and switch engines moving forward and backward, would have simply tended to confusion.'

The facts in that case were somewhat similar to those presented in the case Before us, with this important difference: there the tracks were in a direct line east and west, with nothing to obstruct the view in either direction, while in the instant case we have a curvature, which affected the view of the engine crew to where plaintiff was engaged in placing a tieplate under a rail; also a long-standing rule to warn by ringing the engine bell, which is absent in the Aerkfetz case. In that case the jury returned a verdict in favor of the railroad company. The reviewing court, therefore, under the rule above quoted, presumed every fact necessary to support the verdict; also holding that the facts disclosed no negligence on the part of the defendant, but if it was negligent, plaintiff was guilty of contributory negligence. In that case contributory negligence was a defense, but under the Federal Employers' Liability Act it cannot be a defense in the case at bar. Did the court in the Aerkfetz case, in its language concerning the ringing of bells by engine crews in a railroad yard, frame an invariable standard of behavior which amounted to a rule of law? We think not.

In Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 25, 72 L.Ed. 167, 56 A.L.R. 645, the Supreme Court of the United States framed a rule of conduct, subsequently claimed as a rule of law, when it said: 'When a man goes upon a railroad track he knows that he goes to a...