Posten v. Denver Consol. Tramway Co.

• Decision Date: 14 March 1898
• Citation: 53 P. 391,11 Colo.App. 187
• Parties: POSTEN v. DENVER CONSOL. TRAMWAY CO.
• Court: Colorado Court of Appeals

53 P. 391

11 Colo.App. 187

POSTEN v. DENVER CONSOL. TRAMWAY CO.

Court of Appeals of Colorado

March 14, 1898

Error to district court, Arapahoe county.

Action by Manuel Posten against the Denver Consolidated Tramway Company. Plaintiff was nonsuited, and brings error. Reversed.

W. Henry Smith and W.W. Cover, for plaintiff in error.

A.M Stevenson, for defendant in error.

WILSON J.

Plaintiff brought this action to recover damages for personal injuries alleged to have been received by him, through the negligence of the defendant company, while he was a passenger on one of its electric street cars in Denver. At the trial plaintiff testified in his own behalf, and there was also one other witness, who, however, did not see the accident, and whose testimony was not material as to the main point in issue. At the conclusion of the testimony offered by plaintiff, the court, upon motion of defendant, granted a nonsuit.

At the time of the accident plaintiff was 69 years of age. It appears from his testimony that about 11 o'clock at night he boarded a Broadway electric car, with the intention of alighting at Curtis street where it intersects Fifteenth street. Two cars were coupled together, the first or motor car being a closed one, and the second an open coach. Plaintiff took his seat in the motor car near the forward end. Upon reaching Curtis street at its easterly side, the car slackened its speed, and the plaintiff, thinking it would stop, rose and walked to the rear platform for the purpose of getting off. When he reached the platform the speed of the car was somewhat accelerated, and the plaintiff, thinking that there was no intention of coming to a full stop, stepped onto the lowest step of the platform, and was in the act of stepping to the ground, when the conductor cried to him to stop, and at the same time seized him by the arm. He says that, being in the act of stepping off, he had gone too far to stop, and the result was that he fell. The conductor still remaining upon the platform, clung to him for some little distance, and the plaintiff, rolling under the step of the trail car, had his leg scraped and injured by an iron bolt which projected through the step for a distance of about an inch. Plaintiff charges negligence on account of his seizure by the conductor, which he says caused him to fall, and also negligence in the construction of the car by allowing the bolts to extend through the step of the trailer.

It is needless to discuss or cite authorities in support of the proposition that a trial court may, in any proper case, grant a nonsuit. It has been repeatedly affirmed by numerous decisions of this court and of the supreme court, and the power is expressly given by the Code. Code, § 166. The only question to determine is when a proper case arises for the exercise of this power. No general rule can be laid down which can be made applicable, in all of its details, to every case, in such a manner as to relieve the trial court of any discretion. The rule, however, is by no means as broad in its scope as contended by plaintiff. It is not necessary that there should be an absolute want of all evidence in order to justify the trial court in exercising the power. The better rule is, and one which is well sustained and firmly settled not only by reason but by the great weight of authority, that when it appears to the court, looking at the evidence in the most favorable light for the plaintiff in which the jury would be at liberty to view it, that there is no evidence which would justify or support a verdict for him, then it is not only the privilege, but the duty, of the court to sustain a motion for nonsuit. Schwenke v. Railroad Co., 12 Colo. 345, 21 P. 43; Lord v. Refining Co., 12 Colo. 393, 21 P. 148; Railway Co. v. Sternberg, 13 Colo. 141, 21 P. 1021; Moffatt v. Tenney, 17 Colo. 191, 30 P. 348; Stratton v. Railroad Co., 7 Colo.App. 129, 42 P. 602; Wanner v. Kindel, 4 Colo.App. 170, 34 P. 1014. In actions of this kind it devolves upon the plaintiff in the first instance to make out a prima facie case in his favor, showing that his injuries resulted from the negligence of the defendant. If he fails in this, or if it should affirmatively appear from his own evidence that a lack of due prudence upon his part was the proximate cause of his injury, it is the duty of the court, upon motion for nonsuit, to decide as a question of law that the action cannot be maintained. Behrens v. Railway Co., 5 Colo. 404.

In this case the evidence wholly failed to make a prima facie showing of any negligence on the part of defendant, so far as the construction of the car was concerned. The effort of the plaintiff to bring the case within the rule laid down in Wall v. Livezay, 6 Colo. 465, cannot be sustained. The court there held that, in order to entitle a passenger to recover against a carrier, he must prove that he received the injuries while upon the coach or road of the carrier, and that the same were occasioned by the negligence of the carrier. The court said that a prima facie case is made out by proof that the relation of carrier and passenger existed between the parties; that an accident occurred resulting in injury to the passenger; and that it was occasioned by the failure of some portion of the machinery, appliances, or means provided for the transportation of the passenger. In this case it was not only not shown that the accident was occasioned by failure of any portion of the machinery or appliances of the car, but there was no attempt to show it. It appeared that the bolt, which was the immediate cause or means of the injury to plaintiff, was used to support the step so that passengers might enter or depart from the car, and that the projection complained of was underneath the step, where it could not possibly interfere with the ingress and egress of passengers. It could no more be said to be a negligent construction than would be the wheels under the car by which it was moved. Simply because the plaintiff was injured by the bolt does not raise a presumption nor make a prima facie case of negligence in construction. Especially is this true, there being no contention nor proof that any accident which resulted in injury was caused by the failure of any of the machinery or appliances of the car. The bolt did not cause the plaintiff to fall. Nor is it to be presumed that the obligation rests upon the carrier to so construct his cars that no injury can be inflicted upon a person who gets underneath a moving car. If it be possible to raise such a presumption, it must be done by testimony offered in the first instance by the party who seeks to show or rely upon it.

That the mere act of alighting from a moving car is not negligence per se is well settled by the weight of authority. This has been declared to be the rule in this jurisdiction by a recent decision of our supreme court, and, further, that the question as to whether the act is or is not negligent is one of fact for the jury to determine. Tramway Co. v. Reid, 22 Colo. 362, 45 P. 378. It is true ...