Kansas Pac. Ry. Co. v. Twombly

• Decision Date: 01 February 1876
• Citation: 3 Colo. 125
• Parties: KANSAS PACIFIC RAILWAY CO. v. TWOMBLY, Administratrix.
• Court: Colorado Supreme Court

3 Colo. 125

KANSAS PACIFIC RAILWAY CO. v. TWOMBLY, Administratrix.

Supreme Court of Colorado

February, 1876

Appeal from District Court of Arapahoe County.

THIS was an action on the case under the statute (act of 1872, p 117), by Louisa Twombly, as administratrix of the estate of George W. K. Twombly, against the Kansas Pacific Railway Company, to recover damages for the death of the intestate caused, as she alleged, by the negligence of the defendant in the management of a switch engine then being run on the defendant's track, at the intersection of I and Wynkoop streets in the city of Denver. The cause was tried at the September term, 1873, of the district court of Arapahoe county, resulting in a verdict for the plaintiff in $5,000. A motion for a new trial having been interposed and overruled the defendant appealed. The only question presented to this court for review was the ruling of the court below upon the motion for a new trial.

It appeared in evidence upon the trial that the defendant and the Rio Grande Railroad Company had railway tracks running parallel, between four and five feet apart, along Wynkoop street. The defendant's track was a broad gauge, located west of that of the Rio Grande, which was a narrow gauge. One James W. Truax was called by the plaintiff, and testified that he had known George W. K. Twombly since 1867, and saw him about one minute before his death; met him on the narrow gauge track on I street; it was in the part of the street used for wagons and the like; they stopped very near the gutter; did not see Twombly at the time it struck him witness was going toward the river and put his hand on Twombly's shoulder, as the narrow gauge train was likely to pass, and caused him to move on to the wide gauge track, and spoke to him-less than a minute, probably, about a plow; were at the time facing the depot, rather looking at the hind end of the passing narrow gauge train; witness passed along about twenty feet, heard an out-cry, and saw that the other engine had passed over and killed Twombly; the Kansas Pacific engine came from the south toward the depot, the direction in which they had been looking; the Rio Grande train was going south, and they were watching the hind end of it; witness scarcely stopped to speak, being in a great hurry; did not see the Kansas Pacific engine until it had run over Twombly; must have been some four or five steps, or twenty feet from the engine when it passed; when witness looked back, the Rio Grande train had very near, if not quite, cleared the way; when he met Twombly, was not inclined to wait, so took him along a few steps to speak to him; did not hear the Kansas Pacific engine approaching or any warning of it; the outcry was the first notice of it; did not hear any bell rung on it; should think the bell was not rung; the narrow gauge bell was ringing and witness' attention was drawn to that; saw or heard nothing of the Kansas Pacific engine until it had passed; did not think he could have mistaken the Kansas Pacific bell for the Rio Grande; the sounds of the two bells being very different and easily distinguishable; did not see Twombly when he was struck, but found him some thirty or forty feet toward the depot, from where he left him standing; his body was lying between the broad and narrow gauge tracks and the head lay between the two tracks; the Kansas Pacific engine was still in motion, passing toward the depot, when witness heard the outcry raised by some boys; the body was not moved after witness looked round; on hearing the outcry he missed Towmbly and stepped back, and, as the engine got by, saw what it was; when witness left Twombly he stood by the division of the street and didewalk, close by the gutter; the streets are eighty feet wide, of which twelve feet are used for a sidewalk; Twombly was just on the street side of the gutter; when witness met him both were walking fast and witness took him along because he had only just time to cross ahead of the narrow gauge; did not think the Kansas Pacific engine was moving faster than three or four miles an hour; the noise of the narrow gauge train drowned the noise of its approach; witness and Twombly were standing with their backs the way the train was going, and facing diagonally toward the train; had known Twombly since 1867, and did considerable business with him.

It also appeared that from the point where the accident occurred, the view was plain and unobstructed for some distance each way. That the deceased had lived in the immediate vicinity for a year or more. That the accident happened between half-past six and seven o'clock in the morning of July 1st, 1872.

It was insisted upon the argument by the appellant that deceased had been guilty of contributory negligence, and that the court below should have so held as matter of law upon the facts proved and should have set aside the verdict. The appellant also insisted:

'1. That this court must be governed by the common-law rule as to contributory negligence. That any negligence upon the part of the person injured, contributing to it, will prevent recovery.

2. That where the facts are undisputed, and there is no doubt as to the inferences to be drawn from such facts, the question of the existence of negligence is for the court and not for the jury.

3. That to pass on to or stand upon a railroad track, without looking in each direction, is negligence that will preclude any recovery for an accident to which such negligence contributes.'

Messrs....