Appeal
from court of appeals.
Action
by William Reid against the Denver Tramway Company. Judgment
for plaintiff was affirmed by the court of appeals (35 P
269), and defendant appeals. Reversed.
Action
for personal injuries. In the trial court the plaintiff
recovered judgment for $5,500. This judgment was affirmed by
the court of appeals, and from this latter judgment this
appeal is prosecuted.
Plaintiff
at the time of receiving the injury, was a passenger for hire
upon a street car that was being operated by the defendant
company in the city of Denver. The particular manner in which
the accident occurred, and the nature and extent of
appellee's injuries, are alleged in the complaint as
follows: '* * * While the plaintiff was in the act of
getting off and alighting from the cars of the defendant, and
without any fault or negligence whatever on the part of the
plaintiff, the said train of the defendant was so negligently
and carelessly operated and handled by the said defendant
and the said electricity by which said train wasoperated was
so carelessly, negligently, and unskillfully used, that an
unexpected and sudden jerk or motion was communicated to the
said train, whereby the plaintiff was violently and with
great force thrown down upon the track upon which said cars
were running, and between the cars of said train; and through
the negligent conduct of the said defendant, and by reason of
the negligent, careless, and unskillful manner in which said
train and said electricity were used and operated, the
plaintiff received on, upon, and into his body large
quantites of said electricity; and that by means of said
electricity his whole system was greatly burned, shocked and
injured, so that by means of the fall occasioned by the
sudden motion of said train as aforesaid, and by means of the
powerful shock received from the electricity aforesaid, and
the burns aforesaid, the plaintiff was greatly and severely
hurt, bruised, and injured in and throughout his limbs, his
body, and his whole system; and that his limbs and body have
been, and still are, to a considerable extent, paralyzed, and
rendered unfit for their ordinary functions and uses; and
that he was otherwise severely hurt, bruised, and injured
generally throughout his whole body and limbs by being so
thrown down as aforesaid, and by means of said electricity
aforesaid; and that said hurts, burns, bruises, and injuries
aforesaid, so caused by the negligence of the defendant as
aforesaid, are of a permanent and lifelong character, and
have to the present time, and at all times hereafter will
prevent the plaintiff from doing or performing manual labor
that he has suffered great pain and anguish on account of the
hurts and injuries so received as aforesaid, and still
suffers. And so the plaintiff alleges that he has been
damaged, by reason of the premises in the sum of
$20,000.' Plaintiff, in his direct-examination, described
the accident as follows: 'I sat down until the car
stopped, and I just got up as it was stopping, and I put my
hand to the rail, and was going to get off, when it made a
sudden and throwed me off. Q. Made a sudden what? A. Made a
sudden stop. Q. And you were thrown off? A. I was thrown. It
twisted me around betwixt the two cars.' And on
cross-examination: 'Q. Did you look to see whether it had
stopped before you stepped down? A. Of course the car
hadn't stopped. Q. You were stepping down onto the step?
A. Yes, sir. Q. What were you doing with your hand? A. Doing
nothing, except to catch the rail. Q. Were you facing the
side of the street when you stepped off? A. Yes, sir; facing
the front; the next car ahead of me. Q. Which hand did you
take hold of the rail with? A. The right hand. Q. Which hand
is it you claim is injured? A. This is the worst (raising his
left hand). Q. You took hold with the right hand and started
to step from the step onto the ground, did you? A. Yes. Q.
And then you were thrown off and fell? A. Yes. Q. That is all
you know about it? A. Yes. Q. Did you ever ride on these cars
before after dark? A. Yes, I rode on them before after dark.
Q. How many times? A. Oh, I don't know. Maybe two or
three times. Q. Do you know how fast the car was going when
you stepped down onto the step? A. No, you could hardly see
it moving. Q. I asked you how fast it was going? A. It was
moving---- I don't know. Q. How do you know that? A. I
can tell,--the motion of the car, whether slow or fast. Q.
Isn't it a fact that those cars run smoothly; and after
dark, unless you can see passing objects, you can't tell
how fast the car is going? Isn't that a fact? A. I
don't know. I didn't pay much attention. Q. Isn't
it a fact? A. I don't know. You can tell when they are
moving at night. Q. You can tell by the rattling of the
coupling? A. Yes. Q. But how fast they are moving you
can't tell, unless you can see moving objects, can you?
A. No. Q. You don't know, then, how fast this car was
going when you stepped down on the step to get out? A. It
wasn't moving hardly at all. Q. Except by the motion of
the car, the rattle of the machinery, there wasn't
anything to indicate whether they were going fast or slow? A.
No. Q. Could you see passing objects around, to tell whether
it was going or not? A. No, I was looking at the step. Q. You
hadn't yet reached the far side of the street, in the
direction you were going, when you stepped off? A. Just about
it. Q. I understood you to state you were only a portion of
the way across the street intersection when you stepped off?
A. No. Q. That is not correct? A. It was just about crossing
the crossing. Q. The first crossing? A. The second crossing.
Q. In the direction in which the car was going? A. Yes. Q.
When you say the car was nearly across, do you mean the motor
car was nearly across when you stepped off? A. Yes; the front
car. Q. The front car was just approaching? A. The front car
was across, I think. Q. Did you notice to see? A. The lamp
post was nearly opposite me. Q. You noticed that? A. Yes. Q.
You were particular to observe that? A. Yes. Q. And you
noticed the lamp post was opposite? A. Yes. Q. You are quite
positive of that? A. Very positive. Q. What makes you
remember it? What made you look for the lamp post? A. I was
just going to step off, and I looked up and seen the
light.'
Among
the witnesses introduced by the defendant were a number of
its employés, but, in addition to these, one J. P. Walker
who had never been connected with the company in any way,
gave important testimony. In rebuttal, plaintiff, to weaken
the force of this evidence, was allowed to introduce the
evidence of one W. T. Ustick, tending to connect the witness
Walker with a certain burglary, and for the purpose of
showing that the witness had been arrested for the crime,
although never convicted thereof, or judicially charged
therewith. The materiality of Walker's evidence and its
importance will appear from the following transcript: J. P.
Walker, being duly sworn, testified: 'Q. You were
residing in the city of Denver, county of Arapahoe, and state
of Colorado, in the month of September, 1890? A. Yes, sir. Q.
Were you a passenger upon one of the Lawrence street cars of
the defendant, the tramway company, on the evening of the 8th
or 9th of September,--the 9th,--the car going south? A. Yes,
sir. Q. Did you see the accident which occurred to the
plaintiff in this case? A. Yes, sir. Q. State to the jury all
you know about that matter. A. I was standing on the rear end
of the front car, going out Ninth street---- Q. The rear
platform? A. The rear platform of the front car. Q. The motor
car? A. The front car,--I don't know what you call
it,--with my back to the trailer, the car behind me, standing
with my back towards the front car, my face towards the
trailer, and this gentleman was sitting on the third seat
from the front of the trailer, and just before the car
stopped he got up and stepped down on the running board, and
stepped off and left the car when the car was in motion, and
fell. As soon as I saw him fall, I put my foot on the little
rail that is there and got off, and I guess I was the first
man that was to him. When he fell he was dragged a little
with the car, and his foot was caught in the guard that
guards the wheels; and there was two or three others got hold
of him and took him to the sidewalk on Tenth avenue, and he
laid there a little while, and finally we stood him up on his
feet. He kind of weakened at first, but afterwards he stood
up all right, and I made the remark that he wasn't hurt;
that he was full; and that is about all there was to it. Q.
You stated that the plaintiff was sitting on the third seat
from the front end of the trail car? A. Yes, sir. Q. You are
positive of that? A. I am certain of that, because I was
facing him the same as I am facing that spittoon there. Q.
How far was the car from the far crossing--the crossing where
the cars usually stop--when the plaintiff arose to step off?
A. Well, he stepped just as they entered Tenth avenue, but he
went to get off about middle way of the street,--middle way
of Tenth avenue,--before the car got to the stopping place.
Q. Was the car in motion at the time when he undertook to get
off? A. Yes, sir; it was slowing up for a stop there. Q.
Could you say about how fast it was going at that time? A. It
was not running at full speed; it was slowing up; not very
fast. It was within about ten feet when he fell to the time
it stopped. Q. Did you notice the condition or appearance of
the plaintiff on that evening with respect to sobriety? A. I
don't know as I noticed. I took hold of his shoulders,
and helped to get him on his feet. Q. Did you notice any
smell of liquor on his breath? A. I thought he was...
