Denver Tramway Co. v. Orbach

• Decision Date: 06 May 1918
• Docket Number: 8914.
• Citation: 64 Colo. 511,172 P. 1063
• Parties: DENVER TRAMWAY CO. v. ORBACH.
• Court: Colorado Supreme Court

172 P. 1063

64 Colo. 511

DENVER TRAMWAY CO. v. ORBACH.

No. 8914.

Supreme Court of Colorado

May 6, 1918

Error to District Court, City and County of Denver; John A. Perry Judge.

Action by Alexander Orbach against the Denver Tramway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Gerald Hughes and Howard S. Robertson, both of Denver (W. G. Temple, of Denver, of counsel), for plaintiff in error.

William W. Garwood, Omar E. Garwood, and George O. Marrs, all of Denver, for defendant in error.

TELLER J.

The defendant in error obtained a judgment in an action for damages for personal injuries caused by a collision between an automobile, in which he was riding, and one of the street cars of plaintiff in error.

The parties will be designated as they were in the trial court.

The plaintiff was one of a party of policemen who were riding in a city automobile, driven by one Pickens, who was employed by the city of Denver as a chauffeur. The policemen had been ordered by their superior officer to respond to a 'riot call,' and, upon said order, entered the automobile in question, and were responding to said call when the accident happened.

Of the large number of errors assigned only two or three are asserted to be sufficient in themselves to justify a reversal of the judgment.

Error is assigned on the admission of an ordinance requiring the sounding of gongs on street cars when approaching a crossing but, as the ground upon which the objection is based, i. e that there was no evidence from which it could be inferred that the sounding of the going might have prevented the collision, is fully covered by instruction No. 16, given at defendant's request, the error, if any, was cured.

The principal errors argued are in the court's refusal to give defendant's requested instruction No. 11, and in giving instruction No. 17. These instructions differ only in that the latter submits to the jury the question whether or not the plaintiff was guilty of negligence in not protesting to the driver against the rate of speed at which he was driving, if such rate were found to be reckless while the instruction requested told the jury that, if they found that the automobile was driven recklessly and negligently, which fact was known or should have been known to the plaintiff, if he were in the exercise of due care, and that he made no protest, but acquiesced in said action of the driver, then plaintiff could not recover, if the driver's said negligence contributed to cause the collision. In other words, counsel contend that plaintiff should be held to have been negligent as a matter of law, while the court left it to the jury to determine from the facts in evidence whether or not he was negligent.

By requested instructions 15 and 20, the defendant asked the court to submit to the jury the question of plaintiff's contributory negligence in not protesting against the driving of the automobile at a dangerous rate of speed, and the modification of requested instruction 11 in instruction 17, as given, does no more than to add to No. 11 what was asked in 15 and 20 to be submitted to the jury. Plaintiff in error is therefore hardly in a position to complain of instruction 17, or to urge that instruction 11 was not given, since the latter was in direct conflict with two other requested instructions.

Moreover instruction 17 is proper under the circumstances of this case. There were several matters to be considered from which different inferences might reasonably be drawn by...