Lord v. Pueblo Smelting & Refining Co.

• Decision Date: 15 March 1889
• Citation: 12 Colo. 390,21 P. 148
• Parties: LORD v. PUEBLO SMELTING & REFINING CO.
• Court: Colorado Supreme Court

21 P. 148

12 Colo. 390

LORD v. PUEBLO SMELTING & REFINING CO.

Supreme Court of Colorado

March 15, 1889

Appeal from district court, Pueblo county.

The appellant (plaintiff below) brought this action in the district court to recover damages against the appellee (defendant below) on account of the death of her husband Carlile Lord. The defendant company was engaged in the business of smelting and reducing ores, and in connection with its business owned, controlled, and managed numerous railroad tracks, cars, and engines, for the purpose of delivering ores, coke, and other material to its smelting works. Engineers and other trainmen were employed for the purpose of running the engines and hauling cars. Defendant also employed numerous carpenters for the purpose of building and repairing its houses, sheds, shops, etc., in and about the smelting works. Carlile Lord, the husband of plaintiff was so employed by defendant as a carpenter, and in going to his work one morning, about 7 o'clock, attempted to cross the railroad tracks, and was caught between the cars, and bruised and wounded so that he died two days thereafter. Deceased attempted to cross the tracks near the smelting works at a time when the engineer and trainmen were engaged in their usual occupation of switching and placing defendant's cars. The cars between which he attempted to pass were standing from one to two feet apart, but came suddenly together just as he got between them. The engineer who moved the train was so situated that he could not see the point where the deceased attempted to cross the track. There was no public crossing at the place where deceased was injured, nor was there any certain or definite pathway at that point which the defendant company undertook to keep open for the safe passage of its employes. Plaintiff, in her complaint, alleged that her husband's death was caused by the negligence of the defendant company, and that there was no want of care on the part of deceased. The alleged negligence was stated, in substance, as follows: That the defendant habitually left an opening between its cars across its tracks for its employes to pass through from one part of its works to other parts thereof, at or near a certain point on its tracks; that defendant, not regarding its duty to provide safe courses from one part of its works to other parts thereof, negligently and carelessly left an opening which was unsafe, and, knowing the same to be unsafe permitted said opening to be used as a passage-way without giving notice or warning to deceased, or to others of its employes, of the danger at said crossing; and that thereby deceased, without any want of care on his part, and without knowing of the danger at said crossing, while attempting to cross the track at said point, was caught between the cars by said cars being by defendant carelessly, negligently, and without any warning or signal, and with great force, driven together. The answer denied that defendant was guilty of any negligence causing the injury, but alleged, on the contrary that the deceased came to his death by his own negligence. The case was tried by a jury, and at the conclusion of the trial the court directed a verdict for the defendant. Plaintiff's motion for a new trial having been overruled judgment was entered upon the verdict, and the plaintiff brings this appeal.

In order to a correct understanding of the law a further statement of the evidence is necessary.

Testimony for plaintiff: One witness testified to the effect that the carpenters employed at the defendant's smelting works usually crossed the railroad tracks about the works in going to and from their work. There was usually an opening left for them to pass between the cars. The cars were usually standing on the tracks in the morning. No one ever said anything to them about crossing there. When the carpenters would go to their work, about 7 o'clock in the morning, the trainmen would be moving cars, taking some out and bringing others in. There were many empty cars there at that time. There were probably 200 men about the works at 7 A. M. The carpenters kept their tools in the carpenter shop below the tracks. The main tracks are used by the company for unloading ore. After cars are unloaded, they are taken out and loaded ones brought in. In crossing these tracks, if the carpenters did not find an opening where the steps came up, they went up or down the track to where there was an opening. That was the nearest place to cross. There was a place on the track where they wheeled ore across,--50 feet, about, from where Lord was killed,--and there was another one still further down. The place between the cars for the workmen to pass was not always open; a good many times it was not. The carpenter shop was not over 50 feet from the tracks. One witness testified that about two minutes before Lord was hurt they were poling cars out on a side track, so as to get in on the main track; that is, they were setting a pole against the car on the track and against the car on another track, and pushing it along out of the way so they could pass. There was no bell ringing. In crossing the tracks the carpenters went through between the cars, climbed over them, or through the doors of a car. There was generally an opening in front of the boiler-room. There was an opening between the cars at the boiler-room, and generally was one beyond the scales, about 50 feet away. ' Question by Counsel: State to the jury whether it was customary to cross the track in the morning with the tools by the carpenters or not at this particular place. State whether that was not the ordinary custom and manner of getting across. Answer. It was the nearest, and the place used for that purpose. It was the way we all went. I think there was only two men but what kept their tools there in the shop. It was the custom invariably for the carpenters in the morning to take their tools and come down and go across at that particular place or opening. Carpenters were at their places of work about 7 o'clock in the morning. They were at work that morning on the second level. To get there would necessitate their crossing the track at that particular place. I saw a brakeman at the switch, where he was poling cars, not over three minutes before Lord was hurt. Between where Lord was hurt and where the brakeman was the ground is nearly level. There is a scale-house between the two points which obstructs the view. It is right east or south from the boiler-room, at the side of the track. The cars were between that brakeman and Mr. Lord. There was no brakeman on the same side with Mr. Lord that I saw. There must have been a dozen, more or less, of cars between the engine and where Mr. Lord was hurt. It would be impossible for a man standing where Mr. Lord attempted to cross the track, to see the engine where it was, because of the building, the ore piled up, and the track. He could not see an engine three car-lengths away. * * * I have known Lord two and a half years. He could earn three dollars per day. The engineer was so situated that he could not see Mr. Lord. We got down there usually a few minutes before 7 o'clock A M. At that time there were men going with tools, wheelbarrows, etc., in every direction. These are large works. They employ a great many men, and have many railroad tracks there. From 6:30 to 7 A. M. they are moving out empty cars, and bringing loaded ones in, which requires a good deal of switching. Carpenter tools are kept on the side of the tracks next the river. Mr. Lord had got his tools, and was going to work at a place on the north side of the tracks. Q. Would you sometimes, if there was no opening there, go further up and find an opening? A. It was a very difficult matter to get around either way; that is, to go down the track, for it is a very narrow place for a man to walk, especially with a tool-box, or anything else. Oftentimes we would walk up perhaps one or two car-lengths, and find an opening. If we found no opening, we went through the cars. Sometimes we would find an opening on one track and not on the other. I knew of no rule as to leaving an opening there. Suppose there should be rules on the subject. There was an opening nearly always at this one place in front of the boiler-room. Don't know whether it happened so or not. It was open. Very few times I ever found it shut up. There were box-cars and flat-cars on the track. The brakemen were at work moving the cars, and giving signals at the time of the accident. Their attention was directed to this at that time. The engineer could not have seen Mr. Lord for the oredump and the scale-house. I don't think he could have seen Lord if there had been only three or four cars.' Another witness for plaintiff testified: 'I was about twenty or thirty feet from Lord when he was hurt. There was no brakeman there when Lord was hurt. I saw no one belonging to the train there at the time. Signals were given to move up the train by others. I heard no bell ringing. Think I would have heard it if it had been ringing. Nor did I hear the whistle blowing. Did not see that the train was moving at all. It did not...