Kansas Pac. Ry. Co. v. Miller

• Decision Date: 01 February 1874
• Citation: 2 Colo. 442
• Parties: KANSAS PACIFIC RAILWAY CO. v. MILLER, administrator.
• Court: Colorado Supreme Court

2 Colo. 442

KANSAS PACIFIC RAILWAY CO. v. MILLER, administrator.

Supreme Court of Colorado

February, 1874

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from District Court, Arapahoe County.

CASE by the administrator, suing for the use of the surviving children, for injuries occasioned by the negligence of the defendant and resulting in the intestate's death.

The statute, which gives the action (Acts 1872, p. 117), declares that 'when the death of any person is caused by the wrongful act, misconduct, negligence or omission of another the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she lived, against the latter for the same act, misconduct, negligence or omission, proviso, that the action be commenced in two years, and that the damages shall inure to the exclusive benefit, first of the husband or wife, if living, and if there be no husband or wife, to the child or children of the deceased.'

Miller, as administrator of David Buger, deceased, brought his action against the railway company for causing the death of his intestate by negligence, while being transferred as a passenger for hire on one of the cars of the company. In two counts the declaration attributed the injury to negligence in the construction of a bridge, by means whereof the car was thrown down, broken, etc. Other counts alleged negligent conduct in general without specifying the particulars of such negligence, and each count alleged that the intestate left two minor children, named, to whom the damages might be distributed.

The issue was tried at the April term, A. D. 1873, before the Hon. EBENEZER T. WELLS and a jury.

It was admitted that one David Buger, alleged to be the plaintiff's intestate, was a passenger for hire upon the defendant's train, before, and at the time of the alleged accident.

The locality of the accident was at a bridge or trestle over what is commonly termed Coon creek; the stations nearest are Mirage, about one mile to the east, and Hugo, about nine miles to the west from the trestle. The railway at this point runs nearly east and west, pursuing the valley of the Big Sandy creek.

The trestle in question, though spoken of as the Coon creek bridge, is in reality located in a smei-circular basin formed by a bend in which the Sandy formerly flowed; Coon creek proper has its source or beginning in a divide about nine miles to the north, and empties into the old channel of the Sandy about 1,100 feet above the trestle.

The trestle was constructed in June or July, 1870; at that time there was a defined channel of Coon creek for six or seven hundred feet above its mouth, at the old bed of the Sandy; in places there was water standing in pools; the channel was from 25 to 30 feet in width, and with banks sloping in some places and precipitous in others; above that, there were places where the water had cut gullies or holes, but no continuous defined channel, and for three miles or more at the head of the valley there were no indications of the passage of water there at any time; there were numerous dry ravines opening into this valley, but none wherein water had ever been seen to flow. There was testimony tending to show that, at some former time, the course of Coon creek had carried it to the Sandy, considerably to the east of the trestle, and crossing the line of the railroad half way between that and Mirage station.

The mouth of that channel by which, on the occasion in question, the flood entered the old channel of the Sandy, is, as before said, about 1,100 feet above the trestle; from this point to the trestle the ground descends gradually toward the trestle. The old bed of Sandy has upon its eastern and northerly boundary a bank nearly perpendicular at the top, and with a slope at its foot. The height of this bank is about 13 feet.

The bootom of the old channel was everywhere nearly level across its whole width, the testimony being in conflict as to whether the lowest point was close under the eastern bank, or at some distance from it. At the time of the construction of the bridge this old channel was filled with sand in places, and everywhere else was covered with grass and weeds. Prior to the accident, no water had ever been seen to flow there, or at any point in either channel of Coon creek; though besides the bluff bank of Sandy, and the water-worn channel of Coon creek, Keating, a witness examined for the plaintiff in chief, swore that at the time of the construction of the bridge, the bank of the old channel of Sandy Exhibited traces of the action of water, and John Burk, a witness for the plaintiff, against the defendant's objection, testified in rebuttal to having seen at the time of the construction of the bridge, water-marks upon saplings growing in the vicinity. Storms had frequently occurred in that region, but a flood of such volume as the one which occasioned the accident, had never, according to the testimony, been previously known. As originally constructed, the bridge was formed of a trestle upon piles five or six bents, each of 15 feet in length; from the east it was approached by an embankment of dirt about eight feet in height, and extending into the dry bed of Sandy creek, from 30 to 50 feet,-as to its length the witnesses varied in their recollections; the foot of the western slope of this embankment was near the easternmost row of piles. As to whether this embankment did or did not extend across the lower part of the old channel of the Sandy, was a point upon which the witnesses were not agreed. The trestle was connected with this embankment by stringers, which had a bearing of eight feet or more upon the embankment. From the east the railway approached this trestle through a cut 800 feet long, and the eastern embankment was composed of sand, or clay and sand taken from this cut. The witnesses agreed that it was of inferior character for such a purpose, but the best that the region offered; no stone was found nearer than 100 miles distant, or thereabouts. The witness, Keating, who, working under a contract, had superintended the grading this portion of the road, swore that he extended this embankment according to his own discretion; that he had instructions to leave a 70-foot opening for water-way, and that, originally, the engineer had directed that this opening should be left next the eastern bank, and that the material from the cut should be wasted at the side of the roadway; that when witness had requested permission to carry the material into the bed of Sandy, thereby forming an embankment there, the engineer had at first refused but afterward yielded, instructing him, however, to leave the same opening. Witness further deposed, that he had, during the progress of the work, called the engineer's attention to the evidence of a former flow of water there, and the probability that this embankment would be washed out.

The defendant gave evidence that at about 100 to 150 feet above the trestle there was a projection from the eastern bank of the Sandy which, in the opinion of the engineer, would divert the water from the eastern embankment. The professional witnesses generally agreed that the bridge, as originally constructed, exhibited no lack of care of engineering skill. Subsequent to the accident, however, it was shown that the defendant had reconstructed the bridge, leaving a wider water-way. This evidence was received against defendant's objection, and an exception was reserved.

A witness who resided at Hugo station, testified that on the evening previous to the accident, a violent storm had been observed, near the head of Coon creek, apparently, accompanied by violent thunder and lightning, and an unusual roaring; and that these appearances had been the subject of general conversation at the hotel in Hugo.

No evidence was given of precautions taken by the employees of the railroad company in view of these appearances.

Witnesses sworn for the defendant testified to having been at the trestle late in the evening previous to the accident; that but a slight shower occurred there or anywhere in the neighborhood of Mirage, and the channel was perfectly dry.

The western bound train which had left Kansas City an the evening of the 27th reached Mirage at 1:15 of the morning of July 29. The night was cloudy and dark. As the train approached the trestle its speed was about 15 miles per hour; the head-lamp was burning and enabled the engineer to see the rails for the distance of 300 to 400 feet.

The rails were in place and no indication of the insecurity of the bridge appeared. In fact, by a flood of water coming down Coon creek entering the old channel of Sandy above the bridge, the eastern embankment had been washed away so that the stringer constituting the approach to the bridge being sustained by the rail merely, and without support from beneath, yielded under the weight of the train. The engine leaped the chasm, but the baggage car fell and the second car colliding with this was broken in pieces. The water in the old channel of Sandy was then from three to five deep feet and running with great violence.

The evidence failed to show any defect in the equipment of the train, or negligence in its management. The plaintiff gave evidence, by a witness who had traveled upon the train from Kansas City, that in the second-class car were eight or ten passengers; that among them were one party of five or six three of them being children; that one of these children was eighteen months old or thereabouts, one three or thereabouts, and the other seven or eight; the eldest child was a girl, the other two, boys. The witness was permitted, against...