Felt v. Denver & R. G. R. Co.

• Decision Date: 07 March 1910
• Citation: 110 P. 215,48 Colo. 249
• Parties: FELT et ux. v. DENVER & R. G. R. CO.
• Court: Colorado Supreme Court

110 P. 215

48 Colo. 249

FELT et ux. v. DENVER & R. G. R. CO.

Supreme Court of Colorado, En Banc.

March 7, 1910

Rehearing Denied July 5, 1910.

Appeal from District Court, Pueblo County; John L. Voorhees, Judge.

Action by Eugene S. Felt and wife against the Denver & Rio Grande Railroad Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

For dissenting opinion, see 110 P. 1136.

Coulter & Garwood and John A. Rush, for appellants.

Devine Dubbs & Preston and Wolcott, Vaile & Waterman, for appellee.

PER CURIAM.

From the admissions in the pleadings and from the testimony, it appears that Charles R. Felt, aged about 25 years, the son of the plaintiffs, while attempting to couple cars in the pursuit of his employment as a brakeman of the defendant received injuries causing his death in the month of February 1902; that the defendant is a common carrier and was engaged at the time of the injury, in the business of carrying interstate traffic for hire over its narrow gauge line extending from Colorado into the territory of New Mexico that the cars between which Felt was caught and crushed were narrow gauge cars; that neither of the cars was equipped with automatic couplers, but both were equipped with link and pin couplers; that car No. 6918, one of the cars between which Felt was caught and crushed, came into the state from the territory of New Mexico loaded with lumber, billed for Florence; that the lumber had been unloaded, and that the car was being held under orders at Florence, awaiting a train to carry it to Salida, the distributing point for cars of that division, and at the time Felt was injured, he was attempting to couple this car into a train bound for Salida, where the car was to be held under general orders to be used whenever needed in the general traffic of the company over the narrow gauge line.

The complaint contains two causes of action. In the first, negligence in not complying with the federal Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) is charged; in the second, recovery is sought upon the liability of the defendant at common law. A general demurrer to the second cause of action having been sustained, the cause was tried upon the first cause of action.

At the close of the plaintiffs' case, the court directed a verdict in favor of the defendant, holding that neither of the cars of the defendant, between which the son of the plaintiffs was crushed was, at the time of the injury, under the control of Congress, and judgment of dismissal followed. The plaintiffs objected to the court directing a verdict, excepted to the ruling granting that motion, and excepted to the verdict directed. From the judgment the plaintiffs appealed to the Court of Appeals.

It was not necessary to except to the judgment. By excepting to the ruling on the motion to direct the verdict, the proper exception having been preserved by the bill, we may consider the evidence for the purpose of determining whether the motion should or should not have been granted. And we are of the opinion that the motion should not have been granted, and we must reverse the judgment for that reason.

The safety appliance act was the tardy response of Congress to the repeated requests of the President for action. Its purpose is to promote the safety of employés and travelers upon railroads, by compelling common carriers engaged in interstate commerce to equip their vehicles with certain safety appliances, and we shall assume that Congress intended, in the exercise of its power, to regulate commerce among the states, to exercise its broadest power in respect to the subject of this enactment. If, therefore, the cars, or either of them, between which the son of the plaintiffs was crushed, belonged, at the time of the injury, to a class of cars that was within the control of Congress, then the court wrongly directed the verdict. When the car started on its journey to Colorado, if not before, certainly then, the company violated the act of Congress in not equipping it with automatic couplers. The duty of thus equipping the cars having once rested upon the company, it devolved upon the company to show that something transpired to relieve it of that duty. It is said that the duty ceased when the car was unloaded at Florence; that at the time the car had ended its interstate journey and was under orders to be not returned to New Mexico, but to be sent to Salida. There is nothing in the order of the officers of the company which divested this car of the character of a car used in interstate commerce. The lumber being hauled had reached its destination, and when it was delivered to the consignee and mingled with the general property of the state, it ceased to be under the control of Congress; but the car itself had not reached its destination, its journey was not ended, the directions were to send it on to Salida, and to not return it to New Mexico.

In Johnson v. Southern Pac., 196 U.S. 1, 25 S.Ct. 158, 49 L.Ed. 363, Mr. Chief Justice Fuller said: 'Besides, whether cars are empty or loaded, the danger to employés is practically the same, and we agree with the observation of District Judge Shiras in Voelker v. Chicago M. & St. P. R. Co. (C. C.) 116 F. 867, that 'it cannot be true that on the eastern trip the provisions of the act of Congress would be binding upon the company, because the cars were loaded, but would not be binding upon the return trip, because the cars are empty.'' Hence, it is not necessary, in actions of this character, to allege or prove that a car is actually loaded with interstate traffic. The law requires that it be equipped with automatic couplers at all times, until it reaches its destination, as fixed by the order of the company at the time it starts on its interstate journey.

This car was sent to Salida to be used in conveying interstate or intrastate traffic, as the demands of the company required. It was not set apart as a car to be used in intrastate traffic solely, but it was held at Salida ready to carry articles to points outside the state, if required, and was so intended to be used whenever needed. It was held in the case of U.S. v. St. Louis, I. M. & S. R. Company (D. C.) 154 F. 516, that such a car is being used in interstate commerce, within the meaning of the act of Congress. When the car was once used in interstate traffic it became impressed with the character of a car used in moving interstate traffic, and it so continued until the company took some action to change its character. The company owns an interstate highway. It is regularly engaged in moving traffic over this highway, and a car that has been used, and that stands ready for use upon this highway whenever required, may well be said to be a car regularly used in moving interstate traffic. The trains of the company and all the vehicles thereof that travel this interstate highway on an interstate journey are required to be equipped with safety appliances, and this, whether hauling freight or empty, or whether engaged in hauling articles destined to points within or without the state. The car No. 6918, having been once used in actually moving interstate traffic, became impressed with that character and as it was held in the company's yards at Salida to be sent upon an interstate trip whenever required, and as the record does not show that the car was segregated from the class, i. e., cars used in moving interstate traffic, in which it was placed by the company, it was, at the time of the injury, a car used in moving interstate traffic, within the meaning of the act of Congress.

Counsel mainly rely upon the decision in the case of Rio Grande Southern Railroad Company v. Campbell, 44 Colo. 1, 96 P. 986, as supporting the ruling of the court in directing a verdict. The judgment in that case was reversed, because of the error of the court in receiving evidence prejudicial to the defendant.

The facts in that case are not at all like those in this, and that case should not control this. The testimony showed that the company was operating a railroad lying wholly within the state, and that it 'frequently received from, and delivered to, connecting lines passengers and freight which had come from, or were destined to, points without the state.' There was no showing that any car in the train was loaded with interstate traffic, or that the cars or any of them ever had been so engaged, and we hold now that the bare statement that a road has frequently hauled interstate traffic is not sufficient in a case of this character to hold the company amenable to the federal statute. In that case it was said: 'Before he would be entitled to recover by virtue of the provisions of the act of Congress, * * * it was incumbent upon him to show that cars 1050 and 1925 were loaded with articles destined to some point outside the state.' But upon reflection, in view of the strong additional light thrown upon the decision by the recent federal decisions, we are constrained to overrule the case in so far as it may be construed as holding that a car, unless actually loaded with articles, destined to some point outside the state is not under the control of Congress. We therefore hold that the car No. 6918, was, at the time of the injury mentioned in the complaint, under the control of Congress, and that the duty of equipping it with an automatic coupler devolved upon the defendant, because, at the time of the injury, the car had not concluded its interstate journey; its destination being Salida; also because at the time of the injury, the car was regularly engaged in moving interstate traffic, within the meaning of the act of Congress.

We find support for our judgment in the following cases: Johnson v....