Denver Tramway Co. v. Johnson

• Decision Date: 03 March 1919
• Docket Number: 8805.
• Citation: 66 Colo. 50,179 P. 143
• Parties: DENVER TRAMWAY CO. v. JOHNSON.
• Court: Colorado Supreme Court

179 P. 143

66 Colo. 50

DENVER TRAMWAY CO. v. JOHNSON.

No. 8805.

Supreme Court of Colorado

March 3, 1919

Error to District Court, Denver County; George W. Allen, Judge.

Action by Charles J. Johnson against the Denver Tramway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

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

William W. Garwood, Omer E. Garwood, Jacob V. Schaetzel, and George O. Marrs, all of Denver, for defendant in error.

BURKE J.

Action by defendant in error (plaintiff below, and hereinafter so designated) against plaintiff in error (defendant below, and hereinafter so designated) for injuries received in alighting from one of the defendant's street cars in the city of Denver December 23, 1914. Plaintiff claimed damages in the sum of $3,095. The cause was tried in the district court of the city and county of Denver October 6, 1915. Verdict for plaintiff in the sum of $450. Motion for a new trial filed and overruled November 1, 1915. Judgment entered against the defendant on the verdict, and the cause comes to this court for review on error.

Plaintiff alleged in his complaint that as the car in which he was riding approached a regular stopping place the motorman 'slowed down the car for the purpose of making the usual stop,' and 'while said car was slowing down and being brought to a stop' he 'moved from his seat to the platform or steps of said car, and while wating there on the step to alight, the operatives in charge of said car suddenly and without warning started the same with a sudden and extraordinary jerk and at an unusual rate of speed, and as a direct result thereof plaintiff was jerked from said car and thrown upon the pavement and received the injuries' complained of. Further, that the injuries so sustained by the plaintiff were brought about wholly by reason of the negligence, carelessness, omission of duty, and want of care of the defendant company and its operatives in charge of said street car, in each, all, every and singular of the following particulars, to wit:

'(a) The defendant company's motorman then and there in charge of said street car negligently and carelessly operated the same in such manner as to endanger the safety of the plaintiff by suddenly accelerating the speed of its said car in such manner as to jerk the plaintiff therefrom.'

The defendant denied negligence, and charged plaintiff with contributory negligence, especially 'in negligently and carelessly alighting or attempting to alight from a moving car, when the pavement at said place was in a slippery and icy condition.' Contributory negligence is denied in the replication.

Prior to bringing suit plaintiff made written claim on the defendant on its blank form (Exhibit A), in which he states that there was no unusual jerk; that the 'car started to leave the stopping place; * * * just started, and then stopped. * * * I got down on the steps, and just as I went to step to the street the car started up and I was thrown. I am positive the car was standing when I went to alight.'

Plaintiff testified that the street was covered with ice, and slippery that he waited until the car came to a full stop before he started to step off. 'As I was stepping off, the car suddenly started, and it unbalanced me, and I fell backwards. * * * The car seemed to stop quickly.'

Plaintiff was corroborated by the witness Miller, who testified: 'The car came to a stop just for an instant, then started up again, and then stopped short. It only moved a foot or two, or maybe three feet.'

At the close of plaintiff's case the defendant moved for a nonsuit for variance between the allegations and the proof. The motion was overruled by the court, and plaintiff moved to amend paragraph (a) of his complaint, hereinbefore set out, to read as follows:

'(a) The defendant company's motorman then and there in charge of said street car, after bringing said car to a complete, or nearly complete, stop, negligently and carelessly operated the same in such manner as to endanger the safety of the plaintiff by suddenly accelerating the speed of its said car, while plaintiff was in the act of alighting, in such manner as to jerk the plaintiff therefrom.' (The amendment being by the interlineation of the words underscored.)

Defendant objected to the amendment: First, upon the ground that it did not comply with the proof; second, that it was an attempt to change a cause of action; third, that it was a mere amplification. This objection was sustained.

Defendant's witnesses testified that Johnson 'stepped off the car as it was slowing down, slipped, and fell on the ice.' 'There was no jerk or jar.' 'It came to a stop in the ordinary way.' 'When Johnson got off, the car was going perhaps four miles an hour, or perhaps a little less.' 'The car had not quite come to a stop, but moved only...