Denver Tramway Co. v. Owens

• Decision Date: 07 March 1894
• Citation: 36 P. 848,20 Colo. 107
• Court: Colorado Supreme Court
• Parties: DENVER TRAMWAY CO. v. OWENS.

36 P. 848

20 Colo. 107

DENVER TRAMWAY CO. v. OWENS.

Supreme Court of Colorado

March 7, 1894

Appeal from district court, Arapahoe county.

Action by Ann Owens against the Denver Tramway Company for personal injuries occasioned by negligence in the operation of a street-railway car. Judgment for plaintiff. Defendant appeals. Affirmed.

On February 4, 1889, about nine o'clock in the evening, the plaintiff, Ann Owens, took passage on one of defendant's cable cars at the corner of Fifteenth and Stout streets, to be carried to the corner of Colfax avenue and Race street. The conductor did not signal the gripman to stop before reaching Race street; but, the car having passed Race street plaintiff signaled the conductor to stop the car, and he thereupon rang the bell for that purpose. It was a closed car, with gripman in front, and passengers' entrance at the rear. Plaintiff testified that, upon the conductor's signal, the car stopped; that she arose, and walked to the rear end of the car, and, as he did so, asked the conductor complainingly why he always carried her past her place. She testifies positively that the car stopped still; that she went out upon the rear platform to alight. As she got off, it appears that she was thrown violently to the ground. That plaintiff, in alighting from the car, was thrown to the ground, and thereby rendered unconscious the greater part of the time for several days thereafter, is not disputed. She was undoubtedly seriously bruised and injured by the fall. Her attending physician testified that her skull was fractured, that her health had been thereby greatly impaired and that her injuries were likely to be permanent. Other physicians, having examined plaintiff, expressed the opinion that her skull was not fractured, and that she was not so seriously injured. At the time of the accident, plaintiff was a domestic servant. She testified that before the accident her health had been good, and that she had been regularly employed for good wages. The evidence tended to show that since the accident she had, by reason of her injuries, been unable to take care of and support herself, or do any work for any considerable length of time. The trial now under review occurred more than three and a half years after the accident. It is conceded that the car had been running at the rate of 11 miles per hour previous to the accident, and the testimony in behalf of defendant is positive that the car did not slacken its speed at all before the accident. The gripman testified that, the signal having been given after the car passed Race street, he treated it as a signal to stop at the next street (Vine street), and so did not slacken speed. The conductor testified that plaintiff stepped off while the car was moving at its full speed. Thus, the distinct issue was presented at the trial: Was the car stopped for plaintiff to alight, and was it started again while she was in the act of alighting; or did she get off while the car was running at the rate of 11 miles per hour? At the time of the accident the only persons upon the car were the gripman, the conductor, the plaintiff, and two other passengers (a colored man and his wife). It is undisputed that plaintiff got off the car at the alley,--that is, midway between Race and Vine streets. She was found lying at that point, unconscious immediately after the accident. The length of the block between Race and Vine streets, including the alley, is 266 feet. The gripman and the conductor testified that the car did not stop after it passed Race street until it reached Vine street, or near Vine street, and that the car did not slacken its speed at all until after it passed the alley between these two streets. The colored man testified that he supposed the car was going at its full speed when the accident occurred, but was not paying very much attention; that the car finally stopped about 25 or 30 feet before reaching Vine street. The colored woman testified that she had not noticed that the car stopped when Miss Owens went out. The conductor was the first to reach plaintiff at the place where she had fallen. He testified that her feet were nearest the track, and that her head lay towards the east,--that is, in the direction the car was going,--but more to the south than east. He had raised plaintiff to a sitting posture, and was thus supporting her when the other witnesses arrived. It was shown in evidence that plaintiff, in company with her friend Miss Sphor, called upon the colored man and his wife about a month after the accident, to ascertain their recollection of the matter. In rebuttal, the proper foundation for impeaching testimony having been laid, Miss Sphor testified that the colored man and his wife then said, in substance, that the car had stopped when plaintiff went out to get off. So, also, in rebuttal, and as impeaching testimony, Miss Keiser testified that the colored woman had told her some weeks before the trial that the conductor rang the bell, and that the car stopped before plaintiff got out.

After stating the issues, the court charged the jury as follows '(2) The court instructs you that the burden of proof in this case rests upon the plaintiff, and, in order to recover, she must satisfy you of the truth of the material allegations of her complaint by a preponderance of the evidence. If she does not so satisfy you, you must find for the defendant. (3) The court instructs you that negligence is the violation of that obligation which enjoins care and caution in what we do. It is the doing of something which an ordinarily careful and prudent man would not do under the particular circumstances, or the leaving undone of something which an ordinarily careful and prudent man would do under those circumstances. (4) The court instructs you that from the last instruction you will notice that only that care is required that an ordinarily careful and prudent man would use, but this care must be considered with reference to the object to which it is applied. In determining what amounts to negligence in any particular case, the thing to be cared for and the danger to which it is exposed are the principal considerations. In this case it is for you to determine whether the defendant, by its servants, used such care for the protection and safety of the plaintiff as an ordinarily careful and prudent man would have used under the circumstances. If it did not, and the plaintiff received injuries on account of the negligence of the defendant, and not through any want of care on her part, the defendant is liable in damages. (5) The court instructs you that it was the duty of the plaintiff to use ordinary care, as hereinbefore defined, as to her own protection in alighting from defendant's car, and, if she was guilty of negligence contributing to the injuries of which she complains, then she cannot recover. That is to say, if the defendant, by its servants, was guilty of negligence, and the plaintiff was also guilty of negligence contributing to her injuries, then the plaintiff cannot recover in this action. (6) The court instructs you that it was the duty of the plaintiff, in seeking to alight from the cars of the defendant company, to wait until such cars came to a full stop, or were moving so slowly that, under all the circumstances, including the time of night and her sex and condition, it was safe for her to step off; and if she sought to alight from the car before such time, although unless she did so she might be carried by the point where she desired to get off, she was negligent, and cannot recover in this case. (7) The court instructs you that, in determining the amount of damages to which the plaintiff is entitled, if any, you will take into consideration all the facts and circumstances in evidence before you,--the nature and extent of the plaintiff's physical injuries, if any; whether such injuries are permanent or temporary; and also such prospective sufferings and loss of health, if any, as you may believe, from all the evidence before you, to be reasonably certain from the injuries she may have received; her capacity for labor prior to such injuries, and the amount usually earned by her, if anything, and her diminished capacity for labor, if any, by reason of the injuries claimed to have been received; and, if you find for the plaintiff, you will allow her such sum as shall be fair and just between the parties hereto, not exceeding the amount claimed. (8) The court instructs you that you are the sole judges of the credibility of the witnesses, and the weight to be given to their testimony. In passing upon these matters, you may take into consideration the interest, if any, they may have in the result of this action; their conduct upon the witness stand; their intelligence or want of intelligence; their candor or want of candor; their means of knowledge of the facts to which they have testified; any bias that they may have shown in their evidence; and, from all the circumstances surrounding them, you will give to the evidence of each of them such weight as you shall deem it justly entitled to.' Hospital accommodations, medical treatment, etc., having been provided for plaintiff by defendant, the jury were expressly instructed not to allow them in any event; hence, these items do not appear in instruction No. 7. In addition to a general verdict in favor of plaintiff, the jury returned answers to certain interrogatories which defendant's counsel requested to have submitted to them, as follows: '(1) Did said cable car, in response to any stop signal given by the conductor to the gripman, stop anywhere between said Race and Vine streets, to let said plaintiff get off? If so, state whereabouts, measured in the distance from either one of said Vine or Race streets. A. Yes, about 133...