Florence & C.C.R. Co. v. Kerr

• Decision Date: 06 July 1915
• Docket Number: 8031.
• Citation: 59 Colo. 539,151 P. 439
• Parties: FLORENCE & C. C. R. CO. v. KERR.
• Court: Colorado Supreme Court

151 P. 439

59 Colo. 539

FLORENCE & C. C. R. CO. v. KERR.

No. 8031.

Supreme Court of Colorado

July 6, 1915

Error to District Court, Fremont County; Charles A. Wilkin, Judge.

Action by Roy C. Kerr against the Florence & Cripple Creek Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Schuyler, Ellison & Schuyler, of Colorado Springs (Lee Champion, of Denver, and James T. Locke, of Canon City of counsel), for plaintiff in error.

M. J Galligan and W. J. Kerr, both of Pueblo, for defendant in error.

TELLER J.

The plaintiff in error seeks to reverse a judgment recovered by defendant in error in an action based upon the alleged negligence of the former. We shall refer to the parties as they were designated in the trial court.

The plaintiff was a brakeman in the employ of the Denver & Rio Grando Railway Company, and on the night of his injury, at about 11 o'clock, alighted from a freight train on Ninth street in Canon City, that he might signal to the engineer of his train when the rear car had cleared a certain switch. The defendant had a track, crossing said street, near the track upon which plaintiff's train was moving, and parallel therewith. While plaintiff was upon that track, for the purpose, as was alleged, of signaling his engineer, an engine of defendant, running backward on the track, ran over plaintiff, and cut off one of his legs.

It is first urged that the complaint does not state a cause of action, in that it alleges no duty which the defendant owed to the plaintiff under the circumstances as set forth in the complaint. Counsel contend that the complaint must allege facts which 'bring plaintiff within the scope of the rule applicable to a traveler or licensee,' and that in the absence thereof it is necessary to allege that defendant willfully or wantonly injured him. This is, of course, upon the theory that persons upon a street crossing of a railroad who are not actually going or intending to go across the tracks, are trespassers on the railroad property, unless they are there under such circumstances as make them licensees. Such is not the law in this state. Catlett v. Colo. & Southern Ry., 56 Colo. 463, 139 P. 14. The complaint alleges that defendant negligently ran its engine backward across a public street, without lights on the rear of the tender, and without warning by whistle or bell, and without having a flagman at the crossing, by reason of which negligent acts the plaintiff was injured. This states a cause of action, and demurrer was properly overruled.

It is next urged that the verdict is not supported by the evidence--this upon two grounds: First, that plaintiff was a trespasser, to whom defendant owed no duty, except to abstain from willfully or wantonly injuring him; second, that plaintiff was guilty of contributory negligence, which was the proximate cause of the injury. We have disposed of the first ground adversely to this contention in considering the sufficiency of the complaint. The question of plaintiff's negligence was submitted to the jury under proper instructions, and, there being a conflict of evidence, this court, under a wellknown practice, declines to disturb the verdict.

The failure of the court to instruct the jury that one of the defenses was that plaintiff was a trespasser was not error, since the defendant was required to use ordinary care to avoid injury to plaintiff, whether he was technically a trespasser, a traveler, or a licensee. Catlett v. C. & S. Ry., supra.

The court committed no error in refusing to give defendant's offered instruction No. 11, as it made the plaintiff guilty of negligence if he entered upon defendant's track while the approach of the engine could have been seen, regardless of its distance from plaintiff at the time.

Defendant's instruction No. 12 contained nothing which it was entitled of right to have given to the jury, and its refusal was not error.

Defendant's instruction No. 20 was properly refused. It is not necessary to establish by evidence the specific grounds of plaintiff's damages in such a case as this. There was evidence showing his earning capacity before the accident, and he was not required to prove what he had since earned. Fisher v. Jansen, 128 Ill. 549, 21 N.E. 598. In Walker v. Erie Ry. Co., 63 Barb. (N.Y.) 260, in discussing the measure of damages in personal injury cases, and referring to the impossibility of presenting evidence from which the damages might be definitely determined, the court said:

'The law has accordingly, in this class of cases, committed the determination of the amount of damages to be awarded to the experience and good sense of jurors. * * * Refusal to charge

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