Jackson v. Crilly

• Decision Date: 13 March 1891
• Parties: JACKSON v. CRILLY.
• Court: Colorado Supreme Court

26 P. 331

16 Colo. 103

JACKSON v. CRILLY.

Supreme Court of Colorado

March 13, 1891

Commissioners' decision. Appeal from district court, Lake county.

J. E. Havens and Wolcott &amp Vaile, for appellant.

S J Hanna and Owen Prentiss, for appellee.

RICHMOND C.

This action was brought by appellee, plaintiff below, to recover damages for the death of John Crilly, her husband, while a passenger upon the train run and operated by the appellant as receiver of the Denver & Rio Grande Railway Company. The defendant, among other things, pleaded circumstantially that the death of Crilly was caused by his own contributory negligence. The undisputed facts appear to be that the decedent, Crilly, was one of a large number of persons who attended a picnic at or near Mitchell's station on the Red Cliff branch of the Denver & Rio Grande Railway. That on the day of the accident they left Leadville in the morning, and rode safely to the grounds, and spent the day there in the usual manner. That three trains were run to and from the picinic grounds on that day. That Crilly and his friends, some of whom were witnesses in the case, waited until the last train was about to start for Leadville; that the train consisted of passenger coaches and open cars. That the car which Crilly and his friends entered to return to Leadville was an ordinary coal-car with a box about three feet deep, with seats across it on the inside, placed about eighteen inches from the top. That there were seats across each end of the car, the box of the car forming a back to these end seats. That upon entering the car Crilly seated himself upon the rear end of the box, and placed his feet upon the seat. The board or railing upon which he sat was about 2 1/2 inches thick. In this manner Crilly rode some 12 or 15 miles over a mountainous country. That at a point between Malta and Leadville, and while running on an up grade, Crilly fell from the car, and was killed. The testimony of Patrick Cleary is that the car which Crilly and he entered to return to Leadville was crowded; that, failing to find a seat, Crilly sat on the back railing of the car with his feet between two men who sat on the rear seat. Cleary himself was standing up. The testimony of James Jolly was to the effect that the train left the grounds about seven or eight in the evening, when it was still light. That he climbed on the car after it was full. That Crilly got on after him, and sat next to him; that they were in their seats about a quarter of an hour before the train started. That Crilly had drank a few beers during the day. Just after coming around the curve going up grade, there was a jar. That the jar was caused by the quickening of the speed. That he heard shouting, and learned that Crilly had fallen. He said he could stand on the seat, but could not stand on the floor except by crushing his way in so that it would be uncomfortable. 'Question. Then you could have stood up there? Answer. By crushing in. Q. By a little inconvenience? A. Yes, sir. Q. Instead of sitting on the end of the car? A. Yes, sir. Q. If you could have done that, Mr. Crilly could have done that also, couldn't he? A. Yes, sir.' Peter Jolly testifies that he stood up in the car, and that there was room for more to stand; that the train was running about 10 or 12 miles an hour. Joseph Burns testified that at the time of the accident the train was running smoothly. He did not notice any jolt or jar. The testimony also shows that the car next to the one in which deceased rode was not crowded.

The cause was tried upon the theory that the question of contributory negligence is necessarily one of fact for the jury. In this, we think, there was error. The testimony clearly shows that the deceased was in a place of known danger; that he put himself in this place of danger voluntarily, and, it may be said, recklessly. It is beyond all contradiction that the occupancy of the place of danger caused or contributed to his death. If he had been standing up or seated inside the box, or if he had, within the time after entering the car and ascertaining its crowded condition, and before the starting of the train, sought a position in the next or adjoining car, the lamentable accident would probably not have resulted. It is admitted by the testimony and by the strongest witnesses, and, it might be said, by the most willing witnesses, on the part of the plaintiff, that by a little inconvenience to himself he could have stood up in the car as others did, and thus avoided the accident. There was room for him if there were room for others, and he should have taken a place of safety. He was not an infant, nor non compos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter the former could not arise. He took upon himself the right and privilege of riding on the rear end of a box-car, seating himself upon a board not exceeding in thickness 2 1/2 inches, with his feet elevated by being...