Nichols v. Chicago, B. & Q. R. Co.

• Decision Date: 07 December 1908
• Parties: NICHOLS v. CHICAGO, B. & Q. R. CO. et al.
• Court: Colorado Supreme Court

98 P. 808

44 Colo. 501

NICHOLS v. CHICAGO, B. & Q. R. CO. et al.

Supreme Court of Colorado, En Banc

December 7, 1908

Error to District Court, City and County of Denver; Peter L Palmer, Judge.

Action by Samuel L. Nichols against the Chicago, Burlington & Quincy Railroad Company and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded on rehearing.

Tolles & Cobbey, for plaintiff in error.

Henry McAllister, Jr., Wolcott, Vaile & Waterman, E. N. Clark, and W. W. Field, for defendants in error.

On Rehearing

GABBERT J.

Plaintiff in error brought an action to recover damages resulting from being struck by an engine operated by the employés of defendant over a track belonging to it within the limits of the city of Denver. At the close of the testimony on the part of the plaintiff, the court directed a verdict for the defendant, upon the ground that the evidence of plaintiff disclosed that his contributory negligence was the proximate cause of his injury. The plaintiff brings the case here for review on error.

In our former opinion, we held that the question of contributory negligence of plaintiff should have been submitted to the jury for determination. Upon petition for rehearing by defendant, our attention was particularly directed to the proposition that from the facts recited in the opinion it appeared that the statement of plaintiff to the effect that he stopped, looked, and listened before attempting to cross the track could not be true, and for this reason, and after having decided Westerkamp v. C., B. & Q. R. R. Co., 41 Colo 290, 92 P. 687, where that question was involved, we granted a rehearing. We find, however, upon a re-examination of the record, that the occurrences immediately preceding the act of plaintiff in crossing the track of the defendant company were somewhat different from those recited in the original opinion. The facts presenting the questions we are called upon to determine are substantially as follows: Plaintiff was injured in attempting to cross the track of defendant at the intersection of Page street and River avenue. Page street runs east and west, and River avenue north and south. The track of defendant is on River avenue. Plaintiff resided on Page street a short distance east of River avenue, and in the early morning, but when it was perfectly light, started west on Page street. He testified (quoting from the abstract): 'About 10 or 12 feet before I reached the crossing of Page street with the railway, I stopped. As I came up that way I was facing north, and looked to the south, and near there was a train coming along here (indicating), and leaving this switch here, and switching onto what is called the Lyons track, and so I thought I was perfectly safe and there was no danger in view. So I walked along, and as I faced north I looked north that way (indicating), and observed there was nothing. I was looking north on a straight line along the railroad, and I seen there was nothing, and again started out walking up the track, very close to it, and looking ahead. At that time the train had moved and was whistling and ringing the bell, and blowing off steam with a tremendous roar, and the smoke from the engine kind of fell to the ground and spread out and made a kind of fog around that way, so I could not see distinctly just how the conditions were. I am speaking now of the engine on the Lyons track.'

In our former opinion we stated that when plaintiff was within 10 or 12 feet of the track he looked to the south, the direction from which the engine came which collided with him, and then started to walk across the track. It will be observed from the quotation that this was not correct, in that he appears to have walked in a northerly direction along and near the track before starting to cross it. Continuing his statement regarding his movements after he had walked along and near the track, he states, in substance, as we understand the record, that he then started to cross, that it was 8 or 10 seconds from the time he first looked until he stepped between the rails, and when on the track looked to the south a second time, and discovered an engine within 50 or 60 feet of him, backing at a high rate of speed, with the brakes applied so firmly that the wheels were sliding on the rails and the fire flashing. He endeavored to get off the track, but was struck, and badly injured. There was no lookout on the rear of the engine, and no bell was rung or whistle blown. From other testimony it appears that this engine was following closely behind the train being switched to the Longmont track, and as soon as the switch was turned, which was immediately after the train cleared the main track, it was run in the direction of plaintiff. The distance from the point where plaintiff was struck to the Longmont switch is 685 feet. The speed of the engine was estimated at from 25 to 45 miles an hour. A witness on behalf of the plaintiff testified that he was standing near the switch, and that after the engine passed that point about 200 feet its speed was not less than 25 miles an hour. He also says that its whistle was not blown, or bell rung, and that the engine which had switched the train upon the Longmont track was whistling and blowing off steam. It appears from the testimony that, from the point where plaintiff was standing when he looked south, which was in the direction from which the engine came which collided with him, he could not see that it was closely following the train which was being switched to the Longmont track. From the marks on the rails which were examined just subsequent to the injury of plaintiff, it appears that the engineer endeavored to stop the engine by applying the brakes and reversing it, at a point about 90 feet distant from the place where it collided with the plaintiff, and that it slipped along the track something like 110 feet beyond the point where plaintiff was struck, or, in all, a distance of about 200 feet. The following diagram will aid an understanding of the facts. Point 5 is where the plaintiff was struck. Point 1 is the Longmont switch. The engine which collided with plaintiff was following the train being switched south of point 1. The distance between points 1 and 5 is 685 feet.

The ordinances of the city prohibited trains from running in the locality where plaintiff was injured at a greater rate of speed than 10 miles an hour. These ordinances also require the defendant company to maintain gates or station a flagman at the Page street crossing. These requirements had not been observed by the defendant at the time of plaintiff's injury. It appears that many people are in the habit of crossing the track on Page street.

Though backing an engine through a city at a speed far in excess of that prescribed by the ordinances and neglecting to give warning of its approach by not ringing the bell or blowing the whistle is negligence, it does not absolve pedestrians from the exercise of care to avoid injury therefrom. C., R.I. & P. Ry. Co. v. Crisman, 19 Colo. 30, 34 P. 286; Schmidt v. Mo. P. Ry. Co., 191 Mo. 215, 90 S.W. 136, 3 L.R.A. (N. S.) 196; Gahagan v. Boston & Maine R. R., 70 N.H. 441, 50 A. 146, 55 L.R.A. 426. So that, although the record in this case discloses that the defendant was negligent, it is not liable unless such negligence was the proximate cause of the injury to plaintiff. The trial court held that the negligence of plaintiff was so clearly established that he could not recover, and instructed the jury accordingly. The first important question to determine is whether or not this ruling was correct. I so doing, we must assume that the evidence establishes all facts which it tends to prove, and, in passing upon it, must make every inference of fact therefrom in favor of the plaintiff which the jury would have been warranted in finding in his favor. Donohue v. St. L., I. M. & S. Ry. Co., 91 Mo. 357, 2 S.W. 424, 3 S.W. 848. If, when so considered, it appears the jury might have found that plaintiff was not guilty of contributory negligence, which was the proximate cause of his injury, then the ruling of the trial court under consideration was wrong; otherwise, right. Necessarily every case of this character must depend upon its own circumstances, and whether or not a proper degree of care has been exercised by a plaintiff is dependent more or less upon the danger reasonably to be anticipated. A pedestrian about to cross a railroad track at a street intersection is required to exercise that degree of care in looking out for approaching trains which a reasonably prudent person would have exercised under similar circumstances. If he does not, and his failure in this respect is the proximate cause of his injury, then he is guilty of contributory negligence, and cannot recover. Colo. Central R. R. Co. v. Holmes, 5 Colo. 197; Liutz v. Denver City Tramway Co. (Colo.) 95 P. 600; Wichita & Western R. R. Co. v. Davis, 37 Kan. 743, 16 P. 78, 1 Am.St.Rep. 275. (Image Omitted) Cases frequently arise wherein it becomes the duty of the trial court to determine the question of the negligence of the plaintiff as a matter of law, but those are cases where the testimony will allow no other inference; and hence it follows that, where the question of negligence depends on a state of facts from which different minds may honestly draw different conclusions on that issue, the question must be submitted to the jury for determination. Colo. Central R. R. Co. v. Martin, 7 Colo. 592, 4 P. 1118; Lord v. Pueblo S. & R. Co., 12 Colo. 390, 21 P. 148; Solly v. Clayton, 12 Colo. 30, 20 P. 351; D. & R. G. Ry. Co. v. Spencer, 27 Colo. 313, 61 P. 606, 51 L.R.A. 121. There is no doubt about this proposition, but the difficulty arises in applying it. The...