Denver, T. & G.R. Co. v. Robbins

• Decision Date: 18 June 1892
• Citation: 2 Colo.App. 313,30 P. 261
• Parties: DENVER, T. & G.R. Co. v. ROBBINS et ux.
• Court: Colorado Court of Appeals

30 P. 261

2 Colo.App. 313

DENVER, T. & G.R. Co. v. ROBBINS et ux.

Court of Appeals of Colorado

June 18, 1892

Appeal from district court, El Paso county; WESTBROOK S. DECKER Judge.

Action by Daniel W. Robbins and Anne A. Robbins against the Denver Texas & Gulf Railroad Company for the death of plaintiffs' minor child. Judgment for plaintiffs, and defendant appeals. Affirmed.

Teller & Orahood for appellant.

T.A McMorris, for appellees.

RICHMOND P.J.

The appellees brought this action to recover for the loss of their child. It is alleged in the complaint that on March 9, 1888, while the Denver, Texas & Gulf Railroad Company was operating a railroad through the city of Colorado Springs its employes unlawfully and negligently caused to stop and stand two of its engines and trains on Cucharas street crossing in said city in such a manner that the engines stood upon the crossing facing each other and occupied all of the street except about 25 feet in the middle, said street being 100 feet wide; that all persons passing along said street were obliged to pass to the middle of the street and through this space between the engines; that Anne Robbins, one of the plaintiffs, and wife of Daniel W. Robbins, with their daughter, aged three years, was, while the engines were so remaining, passing on foot between the locomotives on her way to their home; that an omnibus team came immediately behind her, and the horses, becoming frightened at the engines, and the noise and confusion of the steam then escaping from them, violently and with uncontrollable force jumped, swayed aside, and ran over plaintiffs' child, which resulted in her death. It is also alleged that the death was the result of negligence on the part of defendant in permitting the engines to stand upon the street crossing in violation of an ordinance of the city of Colorado Springs, and was without fault or negligence on the part of the plaintiffs, or either of them. The answer admits the injury and death of the child, and denies all the other allegations of the complaint. The cause was tried to a jury, and after all the testimony of plaintiffs and defendant had been introduced a motion was interposed for an instruction to find for the defendant, which was refused, but the court generally instructed. The jury returned a verdict for the plaintiffs in the sum of $3,000. Motion for a new trial was denied, and judgment rendered on the verdict. To reverse this judgment appellant prosecutes this appeal.

The testimony shows that the depot of the defendant company was located near the crossing where the alleged accident occurred; that a freight engine was detained at the depot awaiting the arrival of a delayed passenger train, which on its arrival was halted at the edge of the plank crossing in the middle of the street; that the omnibus was at the depot for the purpose of receiving the passengers, and having obtained its load the driver started to cross the street between the two engines and immediately behind the plaintiff Anne Robbins, with the little child; that one of the horses suddenly plunged or jumped in such a manner as to cause the tongue or pole of the bus to strike Anne Robbins, knocking her down, and the wheel of the bus passed over the child, resulting in its death. It is also in testimony that the street is about 100 feet wide, and that the crossing of plank was 25 feet in width and a part of the road used to drive over; that the cowcatcher of the passenger train was over the crossing. There is some conflict of testimony with reference to the amount of steam that was escaping from one or both of the engines, but substantially it is agreed or undisputed that the two engines were on the street and close to the plank crossing, possibly with their noses projecting over the plank; that the space between the two engines was between 25 and 30 feet; that this space was the point where teams usually crossed, and was planked for that purpose; that the horses when on the crossing, or just about leaving the crossing, became frightened at the engines and escaping steam. It is claimed by appellant that the complaint does not state facts sufficient to constitute a cause of action, because it appears by the complaint that the alleged negligence of the defendant company was not the proximate cause of the injury complained of. It is further contended that the evidence did not establish the fact to be that the alleged negligent act of defendant was the proximate cause of the injury complained of, that it was not enough to show that an accident had occurred and damages had been sustained. It is contended by appellees that the unlawful occupation of the street in violation of the ordinance was negligence, and that the fact that they were so unlawfully occupying the street caused the horses to become frightened, which resulted in the death of the child; consequently that the neglect of the defendant company was the proximate cause of the injury for which damages are sought; and, that the question of whether the neglect was a proximate cause was a question for the jury and not for the court. The complaint alleges that the railroad company was unlawfully and negligently occupying a street crossing in violation of the city ordinance, and that by reason of the fact that the defendant company so negligently caused and permitted its engines to stand upon the street crossing, and without any negligence on the part of the plaintiffs, or either of them, the injury resulted We do not deem it necessary to state more of the complaint than this bare outline. It is sufficient to charge the company with negligence, and that by reason of the company's negligence the injury resulted. Billman v. Railroad Co., 76 Ind. 166.

In the foregoing case a complaint of a similar nature was passed upon, and it was held sufficient. In the course of the discussion ELLIOTT, J., says: "In a carefully prepared and very able brief appellee's counsel urges that no cause of action is shown, because the result was one which the appellee's servants could not have anticipated, and because the injury was not the proximate result of the negligence of the servants of the appellee." The argument there advanced is precisely the argument here, and the reasoning of the court there is directly applicable to this case. And the court further says: "It is true, as urged by counsel, that the injury alleged as the cause of action did not directly and immediately result from appellee's negligence, for there was an intervening agency. The premise is well assumed, and the question is, does the conclusion drawn logically follow? If the maxim quoted is to be given the wide sweep which appellee claims, then, whereever there is an agency intervening between the original cause and the injury, there can be no recovery. This is not the law. An intervening agency does not always shield the wrongdoer from responsibility where the injury flows from his wrongful act." In that case as in this a railroad company and horses were a prominent feature, and we consider that case sufficient authority, without further citations, to warrant us in asserting that the complaint in this case states facts sufficient to constitute a cause of action. This brings us then to the discussion of the main question: Was the negligence of the company the proximate cause of the injury?

It is admitted in the argument that the occupation of the street crossing by the company in the manner alleged and proven was unlawful, and that this of itself was negligence there can be no doubt. In the case of Young v. Railway Co., 56 Mich. 430 23 N.W. 67, it was held that "a railroad company has no right to obstruct a highway with its cars for a longer period than five minutes at any one time. A violation of its duty in this respect is negligence, and if a party is injured by reason thereof, being free from fault on his own part, the company will be liable therefor." In the case of Correll v. Railroad Co., 38 Iowa 120, it was held that "the running of a railroad train within city limits at a prohibited rate of speed constitutes negligence per se." In the foregoing case the statute of Michigan...