Kennedy v. Denver, S.P. & P. Ry. Co.
| Decision Date | 25 November 1887 |
| Parties | KENNEDY v. DENVER, S. P. & P. R. CO. |
| Court | Colorado Supreme Court |
Error to district court, Jefferson county.
On the twenty-seventh of January, 1883, plaintiff, George O Kennedy, while walking in the day-time upon defendant's railroad track, was struck by the locomotive attached to a freight train, and seriously injured. The train approached him from behind, and he knew nothing of its presence until struck. He was aware that his hearing was defective, but was not aware of the extent of such defect. In going upon the track at Dawson's switch station, he looked for trains but made no inquiry concerning them. He had previously passed over the same track, and had always recognized without difficulty the presence of trains before they came in sight. The view was unobstructed for a distance of 900 feet back of the spot where plaintiff was injured. Just prior to the accident, the whistle blew six or seven times, quick, short blasts, winding up with a long steady blow. Shortly afterwards the engine and caboose returned to the station bringing plaintiff. The conductor went to one Rutherford, who lived near by, for aid, and remarked that he had caught that man; promising to send a physician that evening. The vacuum air-brake was in use on the train, and the train could have been stopped in a distance of from 125 to 150 feet. This action was brought to recover damages for the injuries thus inflicted.
At the trial, the court below rejected the following evidence offered to be proved by the plaintiff's son, and also, substantially, by one other witness: That he (the son) went to the conductor of the train the day of the injury, and told the conductor that his father, the plaintiff, had, five or ten minutes previously, started to walk along defendant's track to Dome Rock; also that his father was deaf, or partially so, and that he asked the conductor, on account of such deafness, to look out for him, and not run over him; that this was done in the presence and hearing of the two brakemen of said train and of one Rutherford; and that the conductor then and there replied that, if the plaintiff was deaf, he had no business on the track, and would get killed or run over. The witness was permitted to state that, after the conversation alluded to, the train started up, and the conductor went into the caboose. The following rules of the defendant company for its employes were received in evidence: At the conclusion of plaintiff's evidence, defendant moved for a nonsuit, which the court allowed, and to review the final judgment entered thereon the present writ of error was sued out.
It was shown that plaintiff was partially deaf, and, while walking on defendant's track, was struck from behind by a train. The whistle blew, but he did not hear it. He offered to prove by his son and another witness that the son told the conductor that his father was ahead on the track, that he was deaf, or nearly so, and not to run over him, which evidence was excluded. A nonsuit was allowed. Held, that plaintiff's evidence established a case of contributory negligence, and had the evidence been admitted, a prima facie case of gross negligence on the part of defendant, requiring a submission to a jury, would not have been made out.
A. H. De France and S.E. Browne, for plaintiff in error.
Teller & Orahood, for defendant in error.
PER CURIAM, ( after stating the facts as above.)
The rulings challenged by the first three assignments of error were correct, and the assignments will not be discussed.
Conceding that the testimony concerning notice to the conductor, and the latter's remark, should have been received in evidence, and that the court's action in excluding the same was error, we still think there is not sufficient ground for reversal. Plaintiff was a man of mature years, of sound mind, and perfect eyesight. He was in the possession of unimpaired physical activity and strength. His only defect was that of being partially deaf. Of this defect he was aware, though perhaps he did not know its extent. Without inquiry about defendant's trains, he voluntarily went upon its track, and was walking thereon when the accident occurred. It was in the day-time, and the road-bed for 900 feet behind him was in full view. Prior to the accident, the whistle was blown six or seven times in short, sharp blasts, excepting the last, which was a prolonged blast. Plaintiff's own evidence clearly establishes contributory negligence on his part. Therefore, under a well-known legal principle, before he could recover, it became necessary for him to show gross negligence or wantonness on the part of the employes operating the train. Railroad Co. v. Holmes, 5 Colo. 197; Railroad Co. v. Cranmer, 4 Colo. 524. Aside from the fact of the accident itself, and the testimony offered, but excluded, there is nothing in the case to show that the injury was the result of such negligence or wantonness. We cannot presume that plaintiff would have offered other or further proofs had the rejected testimony been received; and, considering this testimony in connection with the other evidence, it does not appear but that the train was operated with the care required, under all the circumstances. Had the court admitted this testimony, we are or the opinion that a prima facie case of gross negligence or wantonness, requiring a submission to the jury, would not have been made.
The judgment is affirmed.
The plaintiff was guilty of negligence, but he was not as reckless as the court seems to suppose. He went upon defendant's railroad track at Dawson's switch to walk to Dome Rock, without making inquiries at the former point as to the time of the passage of trains. But the reason assigned for this is that he saw no one there to make inquiries of. There was no footway or path between the points mentioned, but wherever the ground alongside the railroad track was smooth enought, which was about one-fourth the whole distance traveled by him, he would leave the track, and walk by the said of it. Every time he went upon the track, he looked for trains. He knew his hearing was defective, but he did not know the extent of the defect; having previously walked on the same track, and heard the approach of trains,--how recently, he was not permitted to state. At this time, however, his hearing was so bad he did not hear the engineer's whistle, and the consequence was the engine struck and injured him. The foregoing items might be immaterial, in a legal point of view, if the officer in command of the train which run down the plaintiff had not been notified of his defective hearing. In this connection they are material. The complaint charges that the employes of the defendant in charge of the train well knew the plaintiff was walking on the track in front of the train, going in the same direction, and that he was almost entirely deaf. Upon such a state of facts, I am of opinion that a greater degree of care was due from the men in charge of the train than if no notice of the situation and condition of the plaintiff had come to them. Without such knowledge the six or seven short, sharp blasts of the whistle, ending in a prologed blast, may have been held to constitute ordinary care, but with this knowledge the engineer had good opportunity to prevent an accident.
Very respectable authorities have held that walking on a railroad track is not negligence per se, and that, in case of injury ensuing, the question of negligence as to the act is one proper to go to the jury. Hassenyer v. Railroad Co., 48 Mich. 205, 12 N.W. 155; Johnson v. Railway Co., 56 Wis. 274, 14 N.W. 181; Carter v. Railroad Co., 19 S.C. 20; Gothard v. Railroad Co., 67 Ala. 114. If this be so in an ordinary case, where the party injured is in possession of all his faculties, the peculiar circumstances of this case, considered in connection with the knowledge possessed by the conductor of the train, would seem to warrant the same legal conclusion.
The trial having been to a jury, the plaintiff was entitled under the law, to have produced in evidence all facts legally tending to show lack of ordinary care, recklessness, or willful negligence on the part of the defendant's agents. The refusal of the trial court to admit testimony of this character, offered by the plaintiff, was error, and it is my opinion that the judgment of nonsuit was also error. Aside from abandonment of an action or consent of the plaintiff, the Civil Code permits a nonsuit, on motion of the defendant, only when the plaintiff fails to prove a sufficient case for the jury. Civil Code, p. 57, § 148. I do not say that the testimony introduced and offered made out a clear case for recovery in favor of the plaintiff. Whether he would have been entitled to a judgment for damages is a close question; but may dissent is based on the proposition that the plaintiff was wrongfully deprived of legitimate testimony offered by him, in the first place, and wrongfully deprived of the consideration and judgment of the jury upon his whole case, in the second place. Cases often arise, and this is an example of the class, in which there is room for difference of opinion as to the inferences and...
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