Great Western Sugar Co. v. Parker

• Decision Date: 08 April 1912
• Citation: 123 P. 670,22 Colo.App. 18
• Parties: GREAT WESTERN SUGAR CO. et al. v. PARKER.
• Court: Colorado Court of Appeals

123 P. 670

22 Colo.App. 18

GREAT WESTERN SUGAR CO. et al. v. PARKER.

Court of Appeals of Colorado

April 8, 1912

Appeal from District Court, Larimer County; Harry P. Gamble, Judge.

Action by Bessie R. Parker against the Great Western Sugar Company and another.From a judgment for plaintiff, defendants appeal.Reversed and remanded for new trial.

Dines, Whitted & Dines, C.W. Waterman, and Caldwell Martin, all of Denver, for appellants.

Fleming & Ault, of Ft. Collins, for appellee.

WALLING J.

Appellants were the defendants in an action brought by the appellee, as plaintiff, to recover damages for the death of appellee's husband, Dillard B. Parker, alleged to have occurred in consequence of the negligence of the appellants.

The complaint, after stating the relationship of the plaintiff to the deceased and the incorporation and business of the defendants, alleged, in substance: That on November 24, 1906the defendant sugar company owned and operated a plant and appurtenances for the manufacture of sugar.That a certain spur or side track connected the main line of the appellant railway company with the plant of the sugar company, which side or spur track was on the property of the sugar company and was used by it for the purpose of receiving shipments of freight from, and delivering freight for shipment to, the railway company; and for those purposes the sugar company directed and requested the railway company to come on and along the side or spur track, by its servants and employés and with its engines and cars, and pursuant to such direction and request the railway company did frequently enter on the side or spur track by its servants, agents, and employés, and with its engines and cars.That the railway company, as a part of its business, for the purposes of delivering to and receiving from the sugar company shipments of freight for transportation over the former's railway, and providing that placing cars for such purposes, made use of the side or spur track as aforesaid.That along such side or spur track the defendants erected, or permitted to be erected and maintained, a certain pole or series of poles, with iron spikes or bars projecting therefrom towards said track, which pole or poles were negligently erected, or permitted to be erected, so close to said track as to endanger the lives and persons of those operating the trains thereon, and were negligently and carelessly allowed and permitted so to remain by the defendants; and that said poles were negligently erected, or permitted to be erected, by the defendants, and by them negligently allowed to remain, at a point along said track where an embankment about three feet high sloped directly down to the edge of the track, and so as to endanger the lives of those operating trains over the track.That plaintiff's husband, Dillard B. Parker, on and prior to the date mentioned, was employed by the railway company as brakeman, and on that date, by direction of the railway company, went upon the side or spur track, on a train of the railway company, engaged in performing his duties as brakeman.That, in the performance of his duties, he was riding on the side of one of the cars, when he was struck by one of said poles, or a spike projecting therefrom, and thereby thrown under the train of cars and killed.There was the further allegation that the train on which the brakeman was riding was operated at a high and negligent rate of speed by the railway company's employés.Damage to the plaintiff was alleged, and the complaint concluded with the usual prayer for judgment.

The answer of the sugar company admitted that since February 28, 1905, it had operated the plant and appurtenances for the manufacture of sugar, but denied that the business or plant was owned by it, or that it was interested in the same at any time prior to that date.It admitted that on November 24, 1906, and prior to the 28th day of February, 1905, there was a spur or side track connecting with the main line of the railway company's railway, running to the sugar company's property and up to its plant and sugar factory, and that connected with the spur or side track were various other side tracks situated upon defendant's property, and that the defendant railway company used such tracks for the purpose of delivering shipments of freight to and receiving shipments of freight from the sugar company; and denied each and every other allegation of the complaint.In the second defense of the same answer, it was alleged that said Dillard B. Parker was well aware of all the various structures mentioned in the complaint and the location thereof in relation to the railroad tracks, and was well aware of all the dangers incident to his employment at all times and places mentioned in the complaint, and assumed the risks of his employment with respect to such structures and tracks.A third defense alleged contributory negligence on the part of the deceased.

The answer of the railway company admitted that it was the owner of and operating the railway mentioned in the complaint, and admitted the allegations with respect to the spur or side track connecting its line of railway with the premises and factory of the sugar company, for the purposes alleged in the complaint.It further admitted that Parker was employed by the railway company as a brakeman, and that he came to his death on the date alleged.The answer denied the other allegations of the complaint.In a separate defense, the answer alleged that deceased was warned of the existence of various structures, including poles, at different places such as might endanger life and limb, and as a condition precedent to his employment he agreed to familiarize himself with the location of such dangerous structures and obstacles; and that, if the accident was caused as alleged in the complaint, it resulted from conditions with which the deceased was required by his contract with the railway company to familiarize himself; and that he had had sufficient time and opportunity to do so.Other defenses pleaded assumption of risk by the deceased and his contributory negligence.

Prior to answering the complaint, the appellant sugar company filed a motion, and afterwards a demurrer to the complaint, which were overruled in turn.The plaintiff replied to the answers of the defendants, denying the new matters alleged therein.Before entering on the trial, the sugar company interposed a motion to require the plaintiff to elect as between two supposed causes of action contained in the complaint, which motion was overruled.The objection of both defendants to the admission of evidence under the complaint, for want of sufficient allegations to constitute a cause of action, was likewise overruled.

The following facts appeared from the evidence: The deceased, Dillard B. Parker, was employed by the railway company as a brakeman, on October 8, 1906, and worked continuously in that employment until his death.During the two weeks immediately prior to his death, except four days when he was ill, Parker worked on the night switching crew then engaged in switching cars at the yard of the defendant sugar company, wherein its factory was situated.It was at the time of the greatest activity in the operations of the sugar factory, and the volume of freight handled for the sugar company was of such magnitude as to require the employment by the railway company of two switching crews for that purpose; one working in the daytime and the other at night.The switching of cars to and from the factory was accomplished by means of the spur track, entering the sugar company's premises through a gate on the westerly side thereof.Other tracks in the sugar company's yard connected with the main spur, for the convenient placing of cars for loading and unloading freight.The main spur track, after it entered the factory yard, was known as the "run-around track."It was originally laid at or about the time of the construction of the factory, and prior to the time when the sugar company acquired title to and ownership of the premises, which was in February, 1905.Prior to the acquisition of the sugar factory and premises by the appellant sugar company, its predecessor in ownership had constructed a system of flumes in the factory yard, for the purpose of conveying beets from the beet piles to the factory, and had established electric light poles, set in a line from northwest to southeast, parallel to and about 30 inches distant from the most northerly beet flume.These poles were so erected for the purpose of lighting the flumes, but it does not appear from the evidence that they were used for that purpose, or for any purpose, at the time to which this discussion relates.The track known as the run-around track was located north of this line of poles.At the time of the accident here involved, the distance between the most westerly pole and the center of the run-around track was 10 feet and 1 inch, and between the most easterly pole and the center of that track was 7 1/10 feet.The space between the most easterly pole and the south rail of the run-around track was 4 feet, 6 1/2 inches.

The easterly pole mentioned was a timber 6 inches by 6 inches in dimensions, 20 feet in height above the ground, painted white; and there were climbing spikes driven alternately in the south and north sides, the spike on the north side toward the track, being about 6 feet above the ground, and projecting 6 inches towards the track.It appears that the distance between the center of the track and the most easterly pole was at one time about 12 feet; but just when the location of the track had been changed at that place does not appear.So far as the proof shows, it may have been moved before the appellant sugar company...