Midland Terminal Ry. Co. v. Patton

• Decision Date: 02 July 1923
• Docket Number: 10386.
• Citation: Midland Terminal Ry. Co. v. Patton, 219 P. 781, 74 Colo. 132 (Colo. 1923)
• Parties: MIDLAND TERMINAL RY. CO. v. PATTON
• Court: Colorado Supreme Court

219 P. 781

74 Colo. 132

MIDLAND TERMINAL RY. CO. v. PATTON

No. 10386.

Supreme Court of Colorado, En Banc.

July 2, 1923

Rehearing Denied Nov. 5, 1923.

Error to District Court, El Paso County; Arthur Cornforth, Judge.

Action by Sarah Patton against the Midland Terminal Railway Company.Judgment for plaintiff, and defendant brings error.

Reversed and remanded, with directions to enter judgment for defendant.

C. C. Hamlin and James H. Rothrock, both of Colorado Springs, for plaintiff in error.

Cunningham & Foard and J. C. Young, all of Colorado Springs, for defendant in error.

DENISON J.

Sarah Patton, defendant in error, had a verdict and judgment for $5,000 against the Midland Terminal Railway Company, for the death of her husband by its alleged negligence, and it brings the cause here for review.

The deceased met his death at the defendant's air-brake shop at about 11:45 a. m., September 7, 1920, by falling off a plank laid across the end of a vat 8 feet long, 3 1/2 feet wide and about 2 feet deep, nearly filled with a boiling mixture of lye, caustic soda, and water, which was used as a bath for machinery, to remove grease therefrom.It was usually kept covered, but when in use was open.At the time of the mishap the deceased was crossing the vat on the plank to get hot water from a barred at the other side to wash his face and hands.No one saw the accident, and there is no proof of how it happened.Whether defendant was negligent is questionable, but, supposing that it was, and that its negligence was the proximate cause of the accident, yet plaintiff was not entitled to judgment.

At the close of the plaintiff's evidence and again at the close of all the evidence the defendant moved for a directed verdict.We think this motion should have been granted.It is demonstrated by the evidence that the deceased had his choice between two ways, crossing the vat on the plank as he did, or going around the vat, which was not larger than a dining room table, and so reaching the barrel by a way unquestionably safe.There is no evidence of any unusual condition at the time of the accident; what evidence there is is to the contrary.Plaintiff earnestly argues that the plank was so dangerous that the defendant was negligent in merely maintaining it, but if that is true Patton knew it.What danger there was in crossing the vat on the plank was obvious to any sane person.The deceased had for two years...