Maydole v. Denver & R. G. R. Co.

• Decision Date: 12 November 1900
• Citation: 62 P. 964,15 Colo.App. 449
• Parties: MAYDOLE et al. v. DENVER & R.G.R. CO.
• Court: Colorado Court of Appeals

62 P. 964

15 Colo.App. 449

MAYDOLE et al. v. DENVER & R.G.R. CO.

Court of Appeals of Colorado

November 12, 1900

Appeal from district court, Gunnison county.

Action by Etta M. Maydole and others against the Denver & Rio Grande Railroad Company. From an order directing a nonsuit plaintiffs appeal. Reversed.

Dexter T. Sapp, for appellants.

Wolcott & Vaile, Thomas C. Brown, and William W. Field, for appellee.

THOMSON J.

A freight train of the Denver & Rio Grande Railroad, upon which Jesse L. Maydole was a brakeman in the employ of the railroad company, while proceeding westwardly from Gunnison city plunged into a stream, the bridge across which had been burned, with the result that Maydole lost his life. The accident occurred in the early morning of October 23, 1896. The wife of Maydole being dead, his children, Etta M. and Fern G., by their guardian, Frank B. Eells, brought this statutory action against the Denver & Rio Grande Railroad Company to recover damages for the loss of their father alleging that his death was due to the negligence of the defendant. At the trial, when the plaintiff rested, on motion of the defendant a nonsuit was adjudged, and the plaintiffs appealed. Substantially, the evidence was as follows: The railroad track east of the bridge was very crooked, being a succession of curves; but the bridge was reached by a stretch of straight track about 300 feet in length. An engine and train of the defendant crossed the bridge between 8 and 9 o'clock on the night of the 22d, and it was then sound. The number of the engine was 272, and the name of the engineer Monahan. When the bridge was reached by the train on which Maydole was brakeman about 3:30 o'clock in the morning of the 23d, it was burned down, and the fire was out. A rain which had fallen had extinguished the fire. Prior to, and perhaps during 1892, the road was inspected by track walkers day and night; but some time in or about the last-mentioned year night inspection was discontinued. Monahan, the engineer of the train which crossed the bridge between 8 and 9 o'clock, was interrogated concerning track walkers. The interrogatories and his answers were as follows: "Q. Do you know what system of inspection or track walking they had through the cañon described at the time of this accident? A. I cannot say as to what the system was at the time of the accident. Q. What inspection was taking place at that time? A. According to what I know--I don't know. All I know I have been told. My understanding is that they sent a man over that track previous to any train over there through the day. Q. Have you seen these inspectors? A. Yes, sir. Q. Did they send, so far as you know, night track walkers over the track? A. That I don't know. Q. Have you seen track walkers at the time or previous to this accident, at night? A. Not at that time I didn't see any track walkers, but I have a number of times previous before. Q. How long ago was it that you saw night track walkers? A. I seen track walkers that day,--that afternoon. Q. When? A. That afternoon, when I went by on the engine." We have given the examination of Mr. Monahan concerning track walkers thus fully because his testimony is the subject of some discussion by counsel. Our own opinion upon it will be expressed hereafter. The plaintiff undertook to show that engine No. 272 was defective, to the knowledge of the defendant, and that fire which fell from it in consequence of its defective condition caused the destruction of the bridge; but the effort was a failure. While the engine was at one time out of order, it had been repaired, and when it crossed the bridge on the night of the 22d it was in good condition. No inference is to be drawn from the evidence that there was any connection whatever between the engine and the fire. But we think that the question whether, upon the evidence in this case, it was incumbent on the defendant to provide night track walkers over the portion of its line described in evidence, should have been submitted to the jury. It is the duty of a railroad corporation to know the condition of its track, so far as such condition can be known by the exercise of reasonable care and diligence; and it must be inspected with sufficient frequency to assure its safety. The rule is thus stated in Railway Co. v. Swett, 45 Ill. 197: "It is the duty of railroad companies to keep their road and works and all portions of the track in such repair, and so watched and tended, as...