Hogue v. Colorado & S. Ry. Co.

• Decision Date: 05 April 1943
• Docket Number: 15073.,15072
• Citation: 136 P.2d 276,110 Colo. 552
• Parties: HOGUE et al. v. COLORADO & S. RY. CO. CURTIS v. SAME.
• Court: Colorado Supreme Court

136 P.2d 276

110 Colo. 552

HOGUE et al. v. COLORADO & S. RY. CO.

CURTIS v. SAME.

Nos. 15072, 15073.

Supreme Court of Colorado, En Banc.

April 5, 1943

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

Consolidated actions by A. C. Hogue and wife against the Colorado and Southern Railway Company for the death of plaintiffs' son as the result of a collision between a truck driven by him and defendant's engine and by Oliver E. Curtis, doing business under the name and style of Curtis Oil Company against the same defendant for damage to the truck, in which defendant counterclaimed for damage to the engine. To review judgments for defendant on plaintiffs' causes of action and against it on the counterclaim, plaintiffs bring error and defendant brings cross-error.

Affirmed.

Frank E. Hickey and Charles C. Sackmann, both of Denver, for plaintiffs in error.

J. C James, of Chicago, Ill., and J. H. Cummins and J. L. Rice both of Denver, for defendant in error.

BURKE Justice.

These parties occupy the same relative position here as below and are designated as there, or as plaintiffs, Curtis, and the company respectively. The deceased son of A. C. and Hattie Hogue is referred to as 'Hogue.'

These cases grew out of the same accident and involve the same law and the same facts, hence they were consolidated in the trial court and here. The first is a suit for damages for the death of Hogue resulting from a collision between a truck driven by him, but owned by Curtis, and the company's railway engine, at a street crossing in Denver. The other is a suit by Curtis for damage to his truck. Plaintiffs alleged negligence of the company's servants. This the company denied and charged contributory negligence on the part of Hogue. It counterclaimed for damage to its engine.

The cause was tried to a jury. At the close of plaintiffs' evidence the company moved for a nonsuit in each case and ruling was reserved. At the close of all the evidence these motions were reneved and tenied. Verdicts in both case were against the company; in the personal injury case for $4,750; in the property damage case for $1,500 and for Curtis on the company's cross-complaint. The company moved for judgments notwithstanding. The verdicts were set aside and judgments entered for the company on plaintiffs' causes of action and against it on its counterclaim. It moved for a new trial on its counterclaim and that motion was denied. To review these judgments against them plaintiffs bring error and the company assigns cross error on the judgment against it on its counterclaim.

The trial court held that the company was negligent but that Hogue was guilty of contributory negligence as a matter of law. Plaintiffs' sole assignment is that ruling. The company's four assignments amount to but one, i. e., the adverse ruling on its counterclaim.

There are approximately 850 folios of record, 150 pages of abstract, 185 pages of briefs, and the cause was orally argued here. Much of this was superfluous because, on the undisputed facts, both parties were culpable.

The collision in question occurred about 10 a. m. February 12. The engine was traveling at not less than thirty miles per hour in violation of a city ordinance prescribing a maximum of ten. Hogue's truck was heavily loaded with gasoline. He was intimately acquainted with conditions through constant travel over the same route in the same employment. On that morning all Denver streets were a glare of ice. When he was 520 feet from the crossing, and making at least seventeen miles per hour, the company's warning signal began flashing. He did all he could to stop but failed because...