Lovejoy v. Denver & R.G.R. Co.

• Decision Date: 01 March 1915
• Docket Number: 7838.
• Court: Colorado Supreme Court
• Parties: LOVEJOY v. DENVER & R. G. R. CO.

146 P. 263

59 Colo. 222

LOVEJOY v. DENVER & R. G. R. CO.

No. 7838.

Supreme Court of Colorado

March 1, 1915

Error to District Court, City and County of Denver; Harry C Riddle, Judge.

Action by Manley Lovejoy against the Denver & Rio Grande Railroad Company. From a judgment for defendant on demurrer to the complaint, the plaintiff brings error. Reversed, with directions to overrule the demurrer.

John A. Rush, of Denver, for plaintiff in error.

E. N Clark and R. G. Lucas, both of Denver, for defendant in error.

SCOTT J.

The complaint in this case alleged, in substance, that the defendant operates a spur or branch railroad track running from its main line near the city of Leadville, to the Ibex mining property; that on the day of the accident complainted of, the engineer of defendant company was in full charge of the conduct and operation of the defendant's engine and train operated on the said branch or spur of its road; that there was no conductor for the train, but that the engineer was in full charge thereof; that the engine was coupled to and engaged in pushing a string of freight cars, had a tender attached behind, and was then so being operated by the said engineer in the line of his employment; that the latter stopped the engine and cars where the said branch line crossed the public highway, which likewise runs between the city and the Ibex mining property. It is then alleged that the plaintiff, a boy of five years, with a little brother and sister, approached the engine when the engineer got down from his cab, and called to the plaintiff, saying he had a present for him; that the said engineer had taken the plaintiff and his brother and sister on the engine and given them a ride a few days prior; that the engineer asked plaintiff if he wanted to ride on the engine, and thereupon lifted him up and into the cab, and then started his engine forward in pursuance of his employment, leaving the plaintiff unguarded and uncared for, and that in some manner the plaintiff fell off the engine, and the wheels of the tender ran over and crushed one of his legs, so that it became necessary to have it amputated. The court sustained a demurrer to the complaint upon the ground that it did not state facts sufficient in law to constitute a cause of action. The plaintiff elected to stand upon his complaint, and brings the case here for review.

The acts of the engineer alleged to constitute negligence are: (a) That there was a duty resting upon the engineer in this case to prevent the child from being placed on the engine; (b) that there was a duty resting on the engineer to safely remove the boy from the engine before starting to operate it; (c) that there was a duty resting on the engineer, after having placed the plaintiff on the engine and not having caused him to be removed therefrom, to have safely guarded him while the engine was in motion; that the engineer by his neglect and failure to perform all or any one of these duties was guilty of such negligence as will make the defendant liable for the injury. Other acts of negligence alleged are: (1) That there was a duty resting on the company to use great caution in the selection of an engineer who is careful and competent, and that the defendant did not exercise proper care in selecting the said engineer, and for such reason the defendant is guilty of negligence in this case; (2) that the said engine was a powerful and dangerous instrument, especially attractive to children, and therefore the failure to select a competent engineer was equivalent to negligently leaving such dangerous instrument without guard and in an unsafe condition.

Admitting the duty of the defendant to employ competent and skilled engineers, there is no sufficient allegation in the complaint of the nonobservance of such duty, nor is there any allegation at all that the engineer here was not competent or skilled as such. That he may have been unduly kind-hearted and devoted to children, to the possible neglect of a duty as charged here, is not such a matter as may reasonably be foreseen in his employment, conceding his qualifications otherwise.

Neither are we able to see how the turntable doctrine is applicable to the facts in this case. This doctrine is well stated in the brief of defendant in error to be:

'The leaving or maintaining of a dangerous and attractive machine, or other instrument or agency upon one's premises, under circumstances which naturally tend to attract or allure young children of immature judgment, and to induce them to believe that they are at liberty to enter and handle or play with it, is tantamount to an implied invitation to enter. Hence a corresponding duty is imposed upon the owner or occupant of the premises to prevent the intrusion, or to protect from personal injury such children as may be so attracted and thus induced to enter, and who are incapable of appreciating the attending dangers. The doctrine is founded upon the principle that when one sets a temptation before young children under circumstances which in law is equivalent to holding out of an inducement to enter, he must use ordinary care to protect them from harm. It is but applying the general rule that when one induces or invites another upon his premises, he must use ordinary care to avoid injuring him.'

The leading, if not the first, American case upon this subject is that of Railway v. Stout, 17 Wall. 657, 21 L.Ed. 745, which involved an injury to a child by leaving a railroad turntable unlocked, and therefore in an unsafe condition for children who might naturally be attracted thereto. The reason for the rule was stated in that case to be:

'As it was in fact, on this occasion, so it was to be expected that the amusement of the boys would have been found in turning this table while they were on it or about it. This could certainly have been prevented by locking the turntable when not in use by the company. It was not shown that this would cause any considerable expense or inconvenience to the defendant. It could probably have been prevented by the repair of the broken latch. This was a heavy catch, which, by dropping it into a socket, prevented the revolution of the table. There had been one on this table weighing some 8 or 10 pounds, but it had been broken off and had not been replaced. It was proved to have been usual with railroad companies to have upon their turntables a latch or bolt, or some similar instrument. The jury may well have believed that if the defendant had incurred the trifling expense of replacing this latch, and had taken the slight trouble of putting it in its place, these very small boys would not have taken the pains to lift it out, and thus the whole difficulty have been avoided. Thus reasoning, the jury would have reached the conclusion that the defendant had omitted the care and attention that it ought to have given, that it was negligent, and that its negligence caused the injury to the plaintiff.'

This cannot be well said to apply to the instant case of an engine being then operated and in direct charge and control of defendant's engineer. So that, if the defendant is to be held liable, it must be by reason of the acts and conduct of the engineer so alleged to constitute negligence.

It will be observed that under the allegations of the complaint the engineer was in sole charge and control of the engine and train, and for such reason there can be in this case none of those distinctions sometimes indulged in, arising in cases where the train was in charge of a conductor or other train-managing official, and where the injury occurred through the alleged negligence of the engineer alone.

The plaintiff was of that age when he must be presumed to be unconscious of the danger incurred in being placed on the engine, or to be possessed of a judgment to resist the temptation to his childish curiosity and pleasure offered by the invitation and act of the engineer. Hence there can be no contributory negligence, and we have only to determine the question of negligence for which the defendant company may or may not be held.

That the injury occurred by reason of, and was due to the alleged acts of, the engineer is not disputed, but it is argued that in so doing, he was not acting within the actual or apparent scope of his authority, and for such reason the defendant is not responsible. The doctrine in this regard may be said to be as in substance stated by our text-writers:

'In order to make a master liable in tort for an injury caused by the wrongful or negligent act of his servant, it must appear that the act was within the actual or apparent scope of the servant's authority; for if the servant was not acting in the due course of his employment for his master, but in contravention of his duty to him and against his interest, the master is not liable.' Addison on Torts, § 1809.

'The liability of the master for intentional acts, which constitute legal wrongs, can only arise when that which is done is within the real or apparent scope of the master's business. It does not arise where the servant has stepped aside from his employment to commit a tort, which the master neither directed in fact nor could have been supposed, from the nature of his employment, to have authorized or expected the servant to do.' Cooley on Torts, 635.

'The master is liable for the acts of his servant, not only when they are directed by him, but also when the scope of his employment or trust is such that he has been left at liberty to do, while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the wrongful acts he was directed to do, but for the wrongful acts he was suffered to do, that the master must respond.' Cooley on Torts, 534.

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