Headley v. Denver & R.G.R. Co.

• Decision Date: 06 December 1915
• Docket Number: 8241.
• Citation: 60 Colo. 500,154 P. 731
• Court: Colorado Supreme Court
• Parties: HEADLEY et al. v. DENVER & R. G. R. CO.

154 P. 731

60 Colo. 500

HEADLEY et al. v. DENVER & R. G. R. CO.

No. 8241.

Supreme Court of Colorado, En Banc.

December 6, 1915

Rehearing Denied Feb. 7, 1916.

Error to District Court, City and County of Denver; Charles Cavender, Judge.

Action by William F. Headley and others against the Denver & Rio Grande Railroad Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Hill and Teller, JJ., dissenting.

William R. Eaton, of Denver, for plaintiffs in error.

E. N Clark and R. G. Lucas, both of Denver, for defendant in error.

WHITE J.

The plaintiffs in error brought this action for damages resulting from the death of their son, who, it is alleged, was killed by reason of the negligence of the defendant in the operation of one of its railroad trains. The defense pleaded was the contributory negligence of the deceased. At the close of the plaintiffs' case the court instructed the jury to find for the defendant, and the correctness of this ruling is the sole question here involved. The facts briefly stated are as follows:

Ellsworth avenue is a public highway 60 feet in width, extending east and west through the southern portion of the city of Denver. Across this avenue at a point between South Inca street on the east and South Jason street on the west, the defendant operates four railroad tracks extending in a southeasterly and northwesterly direction. The track farthest east is used for switching purposes only, which is also true of the one farthest west. The other two are main lines, of which the one farthest east is used for north-bound trains, and the other for south-bound trains. The switch to the west is known as the 'coal track,' and leads into the 'Post coalyard' adjoining Ellsworth avenue on the south and about 20 feet west of the south-bound main line. The Post coalyard is inclosed by a board fence 5 1/3 feet in height, with a 3-inch space between the boards. The distance from this fence to the south-bound main track is 16 1/3 feet and to the north-bound main track 25 1/3 feet. The ground is level and the tracks straight, with an unobstructed view in each direction for at least three-fourths of a mile. Where the track enters the coalyard on Ellsworth avenue is a gate 16 feet in width, which was open at the time of the occurrence in question. Four freight cars were standing upon the coal track just inside the coalyard. There was an automatic signal bell at the crossing, which, under the terms of an ordinance of the city, was required to 'begin to ring when the head end of any train traveling toward the crossing where such signal bell is located is at a distance of not less than 500 feet from such crossing.' This bell was at the time, and had been for over a week, out of order and made no sound whatever. The ordinance also limited the maximum speed of trains at this point to 20 miles per hour.

The deceased was a strong, intelligent young man, 19 years of age, had been reared in the vicinity of the crossing, and was perfectly familiar with surrounding conditions, having passed over the crossing daily for years. At about 8 o'clock on the morning of December 20th he was fatally injured at this crossing by coming in contact with the engine of a local passenger train of defendant, known as 'Uncle Sam,' which was at the time 10 minutes late and traveling northward on the north-bound line at a speed of from 35 to 40 miles per hour. When the train was within approximately 250 feet of the crossing the engine bell was ringing, and as the train approached the crossing and up to the time of the collision the whistle thereon was sounding. Deceased, on the morning of the fatal injury, was on his way to work, riding a bicycle, which was his custom. At a point about 250 feet west of the crossing where the collision occurred, he passed a friend afoot, with whom he frequently lingered and talked, but did not do so at this time, only saying, in substance, that he would hurry along. He was next seen about 15 feet west of the coalyard track, and hence about 35 feet from the south-bound main line and approximately 45 feet from the point of collision. He was then riding at a speed of about 4 or 5 miles per hour. At that moment an 8 or 10 car passenger train, with two engines, known as train No. 1, traveling south at the rate of 25 or 30 miles an hour, on the south-bound main line track, came upon the crossing, and immediately after it had passed over the 'Uncle Sam' train came upon the crossing. The trains were making considerable noise, and some smoke and steam which had escaped from train No. 1 was blowing to the southwest in the direction of, and over, the Post coalyard, but in no sense interfered with seeing by the different witnesses--except one who was standing on the west side of the south-bound main line just east of the Post coalyard board fence--the things which took place on the crossing.

As 'Uncle Sam' train approached, a witness was walking on the track in the same direction the train was moving, and when about 200 feet south of the crossing stepped off to the east for that train to pass. At this time the bell of the engine pulling the 'Uncle Sam' train was ringing, and train No. 1 was passing on the south-bound track. This witness, as the engine of 'Uncle Sam' train passed, looked ahead and across the pilot thereof and saw the wheel of a bicycle on the crossing, coming on the space between the south-bound main line and the north-bound main line, which at that point are 8 1/3 feet apart. Another witness--the one standing on the west side of the south-bound main line just east of the Post coalyard board fence, approximately 230 feet south of the crossing, and whose vision was somewhat obscured by the smoke, etc.--looked north to the crossing when the rear end of train No. 1 rendered it possible, and saw the deceased on his bicycle turning to keep from hitting the 'Uncle Sam' train, and saw him fall. Another witness who was standing in the Post coal office looking through a glass door in the direction of the crossing, a distance of approximately 45 feet, saw the collision. This witness testified that the whistle of the 'Uncle Sam' engine was blowing and that "Uncle Sam' hit the crossing just an instant later than No. 1 cleared the crossing'; that the latter had cleared the crossing between 20 and 40 feet; that when witness first saw the deceased he was sitting upright on his bicycle, riding toward the east, with his hands on the handle bars, and it appeared to witness that the front wheel of the bicycle struck the side of the pilot, and the pilot beam at the rear of the pilot hit him. Another witness testified that he was at the scales in the coalyard (which was about 50 feet from the point where the collision occurred and in plain view thereof); that he heard 'Uncle Sam' coming in and saw deceased rolling alongside the engine, and subsequently saw the track of the bicycle wheel where it had turned; that No. 1 was then, after witness had run to the body of deceased, from 125 to 150 feet south of the crossing. It is alleged in the complaint and admitted in the answer that 'immediately' after train No. 1 passed over the crossing the 'Uncle Sam' train entered thereon and passed over the same.

The alleged acts of negligence set forth in the complaint are: The failure to sound the signal bell at the crossing as required by ordinance; propelling the train that caused the death of deceased at a greater rate of speed than permitted by ordiance; failure to cause the whistle or bell upon the locomotive of such train to be sounded or rung, or to give any other signal or warning of the approach of such train, at any point within sight or hearing of the crossing.

That the automatic bell was out of order and failed to ring and that 'Uncle Sam' train was traveling at an excessive rate of speed were established by the evidence and also conceded by the defendant, and constituted negligence of the defendant sufficient to sustain a verdict. The proof of these, however, in no wise relieved the deceased from taking ordinary precaution for his own safety; and the undisputed evidence shows that he failed in this regard, and that such failure contributed to his death. He was, under the circumstances of this case, bound to look and listen before attempting to cross the railroad tracks in question. We have frequently held that exceeding the lawful speed limit, or the failure of a defendant railroad company to ring the bell or blow the whistle at the crossing, though required by law, will not render the company liable, unless that be the proximate cause of the injury, and there be no such negligence by the plaintiff as will prevent recovery, and have often announced that one about to cross steam railroad tracks at a street intersection must exercise a proper degree of care to avoid injury. Nichols v. C., B. & Q. R. R. Co., 44 Colo. 501, 519, 520, 98 P. 808; C. R.I. & P. Ry. Co. v. Crisman, 19 Colo. 30, 34 P. 286. Indeed, it is elementary that, if in a given case it appears that the defendant owed the plaintiff a duty to use due care, that he violated that duty, and that the plaintiff by reason thereof suffered an injury, the plaintiff, nevertheless, cannot maintain his cause of action, if his own conduct was not that of a reasonably prudent and careful man, and such conduct contributed in some measure to bring about the injury sustained. Colo. Cent. R. R. Co. v. Holmes, 5 Colo. 197; C., R.I. & P. Ry. Co. v. Crisman, supra; Westerkamp v. C., B. & Q. R. R. Co., 41 Colo. 290, 297, 92 P. 687; Liutz v. Denver City Tram. Co., 43 Colo. 58, 95 P. 600.

As the standard of duty in such cases is dependent upon the particular facts and circumstances of each, the question whether contributory negligence has been proven in a given case...