Denver Tramway Co. v. Reid

• Court: Colorado Supreme Court
• Writing for the Court: HAYT, C.J. (after stating the facts).
• Citation: Denver Tramway Co. v. Reid, 22 Colo. 349, 45 P. 378 (Colo. 1896)
• Decision Date: 06 April 1896
• Parties: DENVER TRAMWAY CO. v. REID.

45 P. 378

22 Colo. 349

DENVER TRAMWAY CO. v. REID.

Supreme Court of Colorado

April 6, 1896

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...