Philbin v. Denver City Tramway Co.

• Citation: 85 P. 630, 36 Colo. 331
• Case Date: April 02, 1906
• Court: Supreme Court of Colorado

85 P. 630

36 Colo. 331

PHILBIN
v.
DENVER CITY TRAMWAY CO.

Supreme Court of Colorado

April 2, 1906

Error to Arapahoe County Court; Ben B. Lindsey, Judge.

Action by Michael J. Philbin against the Denver City Tramway Company. From a judgment in favor of defendant, plaintiff brings error. Reversed.

[36 Colo. 332] Carlon, Skelton & Morrow, for plaintiff in error.

Charles J. Hughes, Jr., and Albert Smith, for defendant in error. [85 P. 631]

MAXWELL, J.

Action for damages for personal injuries. A general demurrer to a second amended complaint having been sustained, plaintiff electing to stand thereon, a judgment dismissing the action was entered, to reverse which a writ of error was sued out of the Court of Appeals. [36 Colo. 333] The only proposition which will be considered is: Does the complaint state facts sufficient to constitute a cause of action?

The material allegations of the complaint are that the defendant is a corporation operating a street railway system in the city of Denver; that plaintiff, as a guest, in a wagon drawn by a single horse, was riding north along Broadway, a public street in the city of Denver, which street was traversed by a line of street railway operated by defendant; that due to a change of the grade of the street the tracks of the railway were raised about 6 inches above the surface of the street; that the driver attempted to drive his horse and wagon across the street at a point between Eighth and Ninth avenues, two intersecting streets, where the tracks were so raised; that plaintiff did not know and had no reason to believe that the horse drawing the wagon would be unable to safely make the crossing, or that the wagon would be detained on the tracks; that in attempting to make the crossing the wheels of the wagon so slipped along the rails that the horse was unable to draw the wagon across the track, and the same was detained thereon; that at the time the wheels crossed the outside rails, one of defendant's cars was approaching from the south up a steep grade, at a distance of about 150 feet; that had the motorman on said car exercised reasonable or ordinary care and precaution he could have seen the wagon on the track, and could have stopped the car before the collision occurred, but the motorman negligently failed to do so and negligently permitted the car to run into the wagon; that plaintiff's back was toward the approaching car, and he did not see the same; that he did not hear the gong or any warning of the approach of the car, and was wholly unaware of the close approach of the car; that the motorman and agents of defendant having control [36 Colo. 334] of the car carelessly and negligently failed to sound a gong or give any warning of the approach of the car, and carelessly and negligently ran said car into the wagon, upsetting the same and causing injuries to the plaintiff, hence this suit.

It is contended that the allegations of the complaint, which are admitted to be true by the demurrer, disclose that plaintiff was guilty of such contributory negligence as to prevent a recovery. 'Contributory negligence, in its legal signification, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of.' Beach on Con. Neg. § 7. 'Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the...