Kansas Pac. Ry. Co. v. Ward

• Decision Date: 01 December 1877
• Citation: 4 Colo. 30
• Parties: KANSAS PACIFIC RAILWAY COMPANY v. WARD.
• Court: Colorado Supreme Court

4 Colo. 30

KANSAS PACIFIC RAILWAY COMPANY v. WARD.

Supreme Court of Colorado

December, 1877

Appeal from District Court of Arapahoe County.

THE facts are sufficiently stated in the opinion.

The fourth and sixth assignments of error were based upon the ruling of the court on the following questions propounded to defendant's witness at the trial:

Q. Just as that train was passed, then, state whether or not it was possible for the engineer and fireman to see the track in advance of the car?

Plaintiff objected. Objection sustained and defendant excepted.

Q. Now I will get you to state to the jury whether or not a person could, by looking at that train, tell which way it was going?

Plaintiff objected because immaterial and incompetent. Objection sustained and defendant excepted.

The following are the instructions asked by defendant, and which this court holds to have been properly refused:

'The jury are instructed that the presumption of the law is, in the absence of testimony upon the point, that the place where the accident complained of occurred was not the crossing of a public highway, and that if they shall find from the evidence that the accident occurred between the two tracks of the defendant, that the place where the same did occur was the property of the defendant.

'If the jury shall believe, from the evidence, that a bar was placed upon the front end of the flat car in the freight train that was ahead of the train, for the purpose, as supposed by the witness Ward, of protecting the load that was upon the car from falling off, and that this bar or beam extended out over the sides of the track a distance of one foot and a half, the jury are instructed that this is not negligence on the part of the defendant.'

Messrs SAYRE, WRIGHT & BUTLER, for appellant.

Mr. V D. MARKHAM, for appellee.

ELBERT J.

This is an action of trespass on the case, brought by the appellee against the appellant, to recover damages for injuries sustained by reason, as it is alleged, of the negligence of the appellant in running a certain train of cars, by which appellee was knocked down and so injured that amputation of his leg became necessary.

The jury returned a verdict for $3,750, and judgment was rendered for that amount.

The evidence on behalf of the appellee, touching the circumstances under which the injury was sustained, consisted alone of his own testimony.

The motion for nonsuit raised the question whether the plaintiff was entitled to recover on his own statement of facts.

The locality of the accident was not at a public highway or crossing, but at or near a foot-path leading diagonally to and across the tracks of the defendant, and within the city limits.

A railway company has the undoubted right to the exclusive use of its roadway, except at public crossings, for the unimpeded passage of its trains. To travel upon the track laterally is negligence, and to do so in full view of an approaching train would, as a rule, be culpable negligence. Shearman & Redfield on Neg., ss 489, 491; Phila. & Reading R. Co. v. Hummell, 44 Penn. 375; Evansville, etc., R. Co. v. Hiatt, 17 Ind. 102.

The plaintiff, however, according to his testimony, which the motion for a nonsuit accepts as true, was not on the track of the defendant, but by the side of it, and sufficiently removed from it to be out of the reach of any danger from the passing train, but for the presence of a beam or tie, which lay across the end of the flat car, which war at the head of the train, having reference to the direction in which the train was moving.

It was 'fair time,' and defendant was running excursion trains along its track, to and from the city and the fair grounds. Many persons were passing to and from the fair grounds, along and near the track where the accident happened.

The plaintiff, on approaching the road along the foot-path, ran between the two tracks, which were about twelve feet apart, not for an idle purpose, but to rescue a child which he thought to be falling from one of the windows of a passing excursion train.

The train by which he was injured was a freight train, consisting of three box cars, two flat cars and an engine; the box cars being next to the engine. The train was running backward, at the rate of twelve or fifteen miles an hour. The flat car in front was loaded with machinery, in connection with which, and perhaps to secure which on the car, the projecting beam was used; there was no lookout upon the advancing end of the train, nor any one on the train except on the engine; there was no warning given by those in charge of the train, by whistle or bell, or other means of warning.

The plaintiff saw the freight train about one hundred and fifty yards away, but did not pay special attention to it; he could not see the engine, and thought it was standing still or going the other way. Not the car, but the projecting beam, struck him on the head, and knocked him partly under the wheels.

Notwithstanding the company's exclusive right to the use of its roadway, it is still bound to use ordinary care to avoid injury to persons who may be upon or near its track. What is ordinary care is to be measured, not only by the dangerous forces put in motion, but by the special circumstances of the time and place; running along a line within the city limits, more or less thronged with pedestrians, requiring a higher degree of care than when in the open country, with a presumably clear track. Shearman & Redfield on Negligence, s 477.

Under the facts as testified to by the plaintiff, there was a question, whether there was not a want of ordinary care, on the part of the defendant, in running its freight train backward within the city limits, with many pedestrians passing along the side of its track, to and from the fair, at the rate of speed testified to, with a beam...