Montgomery v. Colorado Springs & I. Ry. Co.

• Decision Date: 03 April 1911
• Citation: 50 Colo. 210,114 P. 659
• Court: Colorado Supreme Court
• Parties: MONTGOMERY v. COLORADO SPRINGS & I. RY. CO.

114 P. 659

50 Colo. 210

MONTGOMERY v. COLORADO SPRINGS & I. RY. CO.

Supreme Court of Colorado

April 3, 1911

Error to District Court, El Paso County; William P. Seeds, Judge.

Action by Dorcas C. Montgomery against the Colorado Springs &amp Interurban Railway Company. Verdict for defendant, and plaintiff brings error. Reversed.

Plaintiff alleges: July 13, 1903, defendant operating a street railway in Colorado Springs, undertook for hire to carry her and a five year old child to the corner of Tejon and Cucharras streets; that the car stopped at said corner, and she attempted to get off with said child, and while she was alighting with the child the car suddenly started and she was thrown down and injured. The answer denies negligence and pleads generally that her own negligence was the cause of said accident. Plaintiff with an afflicted boy having the greatest difficulty in walking or standing alone accompanying her took the car at Tejon and Van Buren streets for Tejon and Cucharras streets. The conductor helped him aboard. The car was an open one, having seats from side to side, with three steps, the first 17 inches from the ground, the next 14 inches higher, and then a 7 1/2-inch step to the platform floor of the car, and the passengeners got off from the side. She testified as the car neared her destination she rang the bell, it stopped, and she immediately stepped down, and was attempting to help the boy off for the purpose of leaving the car, when it suddenly started up, and she was thrown down and injured. The conductor testified that he did not know her destination; that she did not ring the bell; that a Mr. Reed rang the bell and the car stopped; that plaintiff gave no signal nor indicated in any manner a desire to leave the car that after Mr. Reed alighted he started the car, and when it was in motion, while in motion, she stepped down on the running board and pulled the boy with both hands, and, when his hold broke from the seat, she fell off the car.

Instructions 10, 11, 13, and 15 given to the jury are as follows:

'(10) Although the jury may believe from the evidence that defendant was guilty of negligence which contributed to the injury in question, if any, still if the jury find from the evidence that plaintiff was also guilty of negligence which directly contributed to the injury, if any, then the plaintiff cannot recover in this suit, unless the jury should find from the evidence that defendant's conductor after becoming aware of the danger to which plaintiff exposed herself might, by the exercise of ordinary care, have avoided the injury, and such conductor was guilty of such conduct as would indicate an intention or willingness to cause the injury.

'(11) The jury are instructed that if you believe from the evidence that the defendant company stopped its car in question at the intersection of Tejon and Cucharras streets, in the city of Colorado Springs, for a length of time reasonably sufficient to enable any passengers including the plaintiff and the accompanying child, to alight from said car, and after the lapse of such reasonable time said car was started by defendant's employés without any knowledge on their part that the plaintiff was alighting from said car with said child, if she was so alighting, and plaintiff was thereupon thrown to the ground and received any injuries, the defendant is not liable therefor, and your verdict must be for the defendant.'

'(13) The jury are instructed that if you believe from the evidence that plaintiff while standing on the running board of the car attempted to break the hold of the child accompanying her upon the seat of the car, while such car was in motion and known to be so by her, and in so doing, and while she was not holding onto any portion of the car, but was holding and pulling said child with both hands, she fell therefrom and received the injuries complained of, then she cannot recover, and your verdict must be for the defendant.'

'(15) The jury are instructed that, in order to entitle the plaintiff to recover, it must appear not only that the defendant company through its employés negligently started the car in question while plaintiff was in the act of alighting, but also that plaintiff was thrown from said car thereby, and, further, that when plaintiff discovered the car to be in motion, she was in a position where she could not refrain from alighting or being thrown therefrom and was compelled to continue to alight; and, unless you find in favor of the plaintiff by a preponderance of the evidence on all of these matters, your verdict must be for the defendant.'

Verdict for the defendant. Motion for a new trial overruled. Judgment on verdict. The case is here on error.

W. J. Chinn, for plaintiff in error.

David P. Strickler and Dines, Dines & Holme, for defendant in error.

GARRIGUES, J. (after stating the facts as above).

1. By instruction 10 the court, in effect, told the jury that if the negligence of both contributed to the injury, plaintiff could not recover, unless the conductor after he became aware of her danger was guilty of conduct showing a willful intention to injure her, and the defendant might, by the exercise of ordinary care, have avoided the accident. There was no theory of the case or evidence calling for this instruction. Plaintiff testified the car was put in motion while she was alighting. Defendant's theory was that she kept her seat until the car started, when she attempted to get off. Plaintiff made no claim, and there was no proof that she was in a position of peril, and defendant could have avoided injuring her by the exercise of ordinary care. Neither was there the slightest pretense that the conductor willfully or intentionally caused the injury. The claim and proof of neither party raised any controversy calling for this instruction. The jury should neither have been required or allowed to pass upon matters not in actual controversy in the case. As a legal proposition the instruction is wrong.

Assuming, for the sake of argument, that she negligently placed herself in a position of danger, still she could recover if the conductor willfully or intentionally injured her.

If he did not willfully or intentionally do so, she could nevertheless recover if he knew of her perilous position, and might by the exercise of ordinary care have avoided injuring her. Denver Co. v. Dwyer, 20 Colo. 137, 36 P. 1106; Hector Co. v. Robertson, 22 Colo. 495, 45 P. 406; Denver Co. v Dwyer, 3 Colo.App. 411, 33 P. 815; ...