Phillips v. Denver City Tramway Co.

Decision Date03 June 1912
PartiesPHILLIPS et al. v. DENVER CITY TRAMWAY CO.
CourtColorado Supreme Court

Rehearing Denied Dec. 9, 1912.

Error to District Court, City and County of Denver; George W Allen, Judge.

Action by Joseph W. Phillips and another against the Denver City Tramway Company. Judgment for defendant, and plaintiffs bring error. Reversed.

Sterling B. Toney, Henry V. Johnson, and R. Burge Toney, all of Denver, for plaintiffs in error.

Gerald Hughes and Howard S. Robertson, both of Denver, for defendant in error.

MUSSER J.

The following facts are disclosed by plaintiffs' evidence Fifteenth street, in the city of Denver, runs in a northwesterly and southeasterly direction, and Champa street in a northeasterly and southwesterly direction, crossing Fifteenth street at right angles. For convenience, we will speak of the direction of Fifteenth street as northerly and southerly, and that of Champa street as easterly and westerly. They intersect in the business part of Denver. The defendant's double-track electric street railway runs on Fifteenth street. Mr. Phillips, one of the plaintiffs, was driving an automobile between Curtis and Champa streets southerly on Fifteenth. His two young daughters and their uncle were in the rear seat of the automobile. The automobile was following a car going in the same direction on the westerly track, and the former was between the curb and this track. When the car reached the northerly intersection line of Fifteenth and Champa, the automobile was about six feet behind or about even with the rear end of the car, and both were moving at about the same speed--from three to five miles an hour. The speed of the automobile was slackened, and Phillips turned it to his left to cross into Champa and go to Sixteenth street. When the automobile was turned it was about within the intersection of the two streets, and the car that had been followed was about 15 feet from the northerly intersection line. The automobile turned to the left behind the south-bound car diagonally across Champa, and just as it reached the westerly rail of the easterly track it was struck by a north-bound car running on the easterly track, which was not seen in time to prevent a collision. The occupants of the rear seat of the automobile were thrown out and one of the little girls, five years of age, was killed. When the collision occurred, the southerly bound car had not quite passed, or was just passing out of the intersection, and the car that struck the automobile had passed the other within the intersection. No bell or gong was sounded. The car that struck the automobile was moving at the rate of from 15 to 20 miles an hour. There was direct evidence by a witness who stood near that the southerly bound car obstructed the view of the one northerly bound. The ordinance granting a franchise on the streets to the defendant company provided that cars should not be run in that part of the city faster than 10 miles an hour. Another ordinance provided that a gong or bell should be sounded on every street car when approaching any street crossing within a distance not exceeding 60 feet from the crossing, and that such gong or bell should be sounded whenever the motoneer would have reason to believe that there was danger of the car running against a vehicle. Another ordinance provided that two cars going in opposite directions should not pass each other upon any street intersection, but that the car farthest from the intersecting street should stop and remain until the approaching car should have entirely passed the intersection. Julia W. Phillips, the other plaintiff, was the mother of the little girl who was killed. She was not in the automobile, and there is no evidence showing that she had anything to do with her daughter being therein at the time, or as to where or how it was driven.

At the close of plaintiffs' case, on motion of the defendant, the court directed the jury to return a verdict in favor of the latter. Such verdict was returned, and, after overruling a motion for a new trial, judgment was entered on the verdict in favor of the defendant and against the plaintiffs. To review that judgment and the rulings of the court, this writ of error is prosecuted. The defendant, in its answer, set up contributory negligence, on the part of Joseph W. Phillips, as a defense, and it is now urged that such contributory negligence appeared as a matter of law, and for that reason the lower court was right in directing a verdict for defendant. A mass of authorities are cited, pro and con, on this question; but we think the decisions of our own court are amply sufficient here. Each case is to be governed by its own facts, and no two cases are alike.

The excessive rate of speed at which the car that struck the automobile was going, the failure to sound a gong or bell, and the passing of the cars within the intersection, all contrary to ordinances, are each sufficient to warrant a jury in finding that the defendant was guilty of actionable negligence. Denver, etc., R. R. v. Ryan, 17 Colo. 98, 28 P. 79. It is plain from the facts of this case that if the colliding car had remained without the intersection on the opposite side of the street, as the ordinance required it to do, the accident would not have happened.

Unless it is observed or should be observed by a defendant in time to avert its consequences, by the exercise of reasonable care, negligence of the plaintiff, that directly contributes to the production of an injury and without which the injury would not have occurred, will preclude a recovery. Jackson v. Crilly, 16 Colo. 103, 26 P. 331; Gregoric v. Percy, etc., Co., 122 P. 785.

The question whether such contributory negligence has been proven is usually one for the jury. Under all the authorities, it is only in the clearest of cases, when the facts are undisputed and it is plain that all intelligent men can draw but one inference from them, that the question is ever one of law for the court. Denver Co. v. Wright, 47 Colo. 366, 107 P. 1074; Colo. Co. v. Chiles, 50 Colo. 191, 114 P. 661; Williams v. Sleepy Hollow M. Co., 37 Colo. 62, 86 P. 337, 72 L.R.A. (N. S.) 1170, 11 Ann.Cas. 111.

The measure of duty of both parties in this case was that of ordinary and reasonable care under all the facts and circumstances. Nichols v. C., B. & Q. R. R. Co., 44 Colo. 501, 98 P. 808; Colo. Co. v. Chiles, supra.

The standard of duty in such cases is variable depending altogether upon the particular facts and circumstances, and it has been said by this court that in such a case the question of negligence is always one for the jury. In Williams v. Sleepy Hollow M. Co., supra, where, on page 69 of 37 Colo., page 339 of 86 P. (72 L.R.A. [N. S.] 1170, 11 Ann.Cas. 111), it was said: 'Negligence in a particular case is generally a matter for the jury to determine, and it is always so when the measure of duty is ordinary and reasonable care. In such cases the standard of duty is variable.' And on page 70 of 37 Colo., page 340 of 86 P. (72 L.R.A. [N. S.] 1170, 11 Ann.Cas. 111), this court said: 'The standard of duty in cases of this character is variable. It cannot be determined as a matter of law what is and what is not a compliance with the duty of one who is bound to exercise ordinary care under the circumstances. What may be negligence under some circumstances and conditions may not be under others. It is not a fact to be testified to, but can only be inferred from the res gestae, from the facts given in evidence; hence it may generally be said to be a conclusion of fact to be drawn by the jury under proper instructions from the court. It is always so where the conclusion is fairly debatable or rests in doubt. It is only where there is an entire absence of testimony tending to establish the case that a nonsuit may properly be ordered or a verdict directed.' And this court, beginning on page 71 of 37 Colo., page 340 of 86 P. (72 L.R.A. [N. S.] 1170, 11 Ann.Cas. 111), quoted with approval from Railroad Co. v. Van Steinburg, 17 Mich. 120, where Chief Justice Cooley said: 'The case, however, must be a very clear one which would justify the court in taking upon itself this responsibility; for, when the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff's conduct by that, turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the circumstances. He thus makes his own opinion of what would be generally regarded as prudence a definite rule of law. It is quite possible that if the same question of prudence were submitted to a jury collected from the different occupations of society, and perhaps better competent to judge of the common opinion, he might find them differing with him as to the ordinary standard of proper care. The next judge trying a similar case may also be of a different opinion, and, because the case is not clear, hold that to be a question of fact which the first has ruled to be one of law. Indeed, I think the cases are not so numerous as has been sometimes supposed in which a judge could feel at liberty to take the question of the plaintiff's negligence away from the jury. The judge, it is said in one case, is not bound to submit to a jury the propriety of a particular course, when it is perfectly notorious that all prudent men conduct their own affairs differently. The uniformity of the conduct of business men becomes a rule of law. But while there is any uncertainty, it remains a matter of fact for the consideration of the jury. Briggs v. Taylor, 28 Vt. 183. The difficulty in these cases of negligent injuries is that it very seldom happens that injuries are...

To continue reading

Request your trial
68 cases
  • Carney v. Railway Co.
    • United States
    • Missouri Supreme Court
    • July 30, 1929
    ...to the death of the child. Other authorities, and we think the weight of authority, are to the contrary. See Phillips v. Denver City Tramway Co., 53 Colo. 458; 32 Ann. Cas. 29, 33, and note there found; also to the same effect, the note in 23 A.L.R. 690. Further reference is also made to 8 ......
  • Brennan v. Biber
    • United States
    • New Jersey Superior Court
    • December 29, 1966
    ...to the nonnegligent parent and nothing to the negligent parent. This is apparently what is suggested in Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460 (Colo.Sup.Ct.1912), cited in Savoia.13 I should further have required that both parents, instead of Monica alone, be joint pl......
  • Chawkley v. Wabash Railway Co.
    • United States
    • Missouri Supreme Court
    • June 27, 1927
    ... ... Griffith, 263 S.W. 876; Franklin v. Kansas ... City, 260 S.W. 503; Savings Bank v. Denker, 275 ... Mo. 607; Wray v ... will not defeat recovery altogether. [ Phillips v. Denver ... City Tramway Co., 53 Colo. 458; Donk Bros. Coal & Coke ... ...
  • Cunningham v. The Doe Run Lead Company, a Corp.
    • United States
    • Missouri Court of Appeals
    • June 15, 1926
    ... ... them is error. Reybourne v. Phillips, 140 S.W. 977; ... Dalton v. Redemeyer, 154 Mo.App. 190, 197; ... the judgment. Phillips v. Denver City Tramway Co., ... 53 Colo. 458; Wolf v. Railroad, 55 Ohio St. 517; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT