Pueblo Elec. St. Ry. Co. v. Sherman

• Decision Date: 16 May 1898
• Parties: PUEBLO ELECTRIC ST. RY. CO. v. SHERMAN.
• Court: Colorado Supreme Court

53 P. 322

25 Colo. 114

PUEBLO ELECTRIC ST. RY. CO. v. SHERMAN.

Supreme Court of Colorado

May 16, 1898

Appeal from district court, Pueblo county.

Action by George F. Sherman, by his next friend, Grace Sherman against the Pueblo Electric Street-Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

On the evening of January 11, 1896, appellee was injured by a car operated by appellant, and brought this action to recover damages resulting from such injury. On the trial, his evidence, in substance, was that he had permission from the motorman in charge of the car by which he was injured to ride thereon the evening in question, and, with his consent, made several round trips during that period, from a point between the terminals of the line over which his car was operated and one of such terminals, and, in so doing, rode with the motorman, turning the trolley at the end of the run, and, in alighting for this purpose, did so voluntarily from the front platform, while the car was in motion, without objection from the motorman; that, later, his trips extended from one end of the line to the other, and that, at the end of each of these runs, he turned the trolley as before, alighting each time from the front platform before the car was brought to a stop that preceding the trip he was injured, at the suggestion of the motorman, he went home to get his overcoat, being told by this employé he must have a garment of that character if he wanted to be a motorman, and on his return was again admitted to a place on the front platform, proceeded to the end of that run, where, just before the car reached its stopping place, after being slowed up, but while still moving, he alighted as before from the front platform, for the purpose of turning the trolley, was thrown down, and one of his limbs crushed by the wheels of the car. It appeared from the evidence that appellee had lived on the street along which the cars of appellant were run for something over a year prior to the accident, and was 13 years of age the August preceding the date he was hurt, and that he had no pass permit, ticket, or money to ride upon the car, and was riding by permission of the motorman.

At the conclusion of the evidence for appellee, appellant moved for nonsuit, for the reason it appeared that appellee was of that age and sufficiently intelligent to know that alighting from a car while in motion was dangerous, and was therefore guilty of contributory negligence, but for which the accident would not have occurred, and because he was riding without the payment of fare, by permission of the motorman, which was beyond the scope of the authority of the latter. This motion was denied. On behalf of appellant, the evidence of the motorman was to the effect that he had not objected to the boy's riding that evening, or attempted to eject him that he knew he had alighted from the car several times while in motion; had spoken to him about the danger of so doing; that his answers indicated he understood it was dangerous to get on or off the car while in motion; had objected to his turning the trolley, and that he had told him to go home, but said nothing about getting his overcoat or returning; that he returned within a short time, boarded the car, and proceeded to the end of the run, where he was hurt, substantially as detailed by the appellee; that the boy's mother, on being told he was injured, stated she had tried to keep him away from the cars. There was also evidence to the effect that appellee had been told, on several different occasions, he would get hurt if he did not keep away from the street cars, which statements he had previously denied on cross-examination. It also appears in evidence on behalf of appellant that it was contrary to its rules for employés in charge of a car to permit any person to ride without the payment of fare. A witness on behalf of appellant testified that, shortly after the accident, appellee, in response to an inquiry as to who was to blame, answered he was. Appellee, upon being recalled and interrogated in regard to this statement, stated that, soon after his removal to the drug store where taken after the accident, he was given something which made him sleepy, and did not know that he might have said while in that condition, nor did he remember making any such statement. Appellant then offered to prove by another witness that, at the time the statement was made by appellee regarding who was to blame, no drug or anaesthetic had been administered, which offer was rejected. At the conclusion of the evidence, appellant requested the court to instruct the jury to return a verdict in its favor, which request was refused. The court, of its own motion, on the question of contributory negligence, instructed the jury to the effect that if they believed from the evidence, considering the age of appellee, his experience, and apparent degree of intelligence, that he was capable of appreciating the danger of alighting from the front platform of the car in motion, at the time and under the circumstances disclosed by the evidence, then, in voluntarily so doing, he was guilty of negligence, and they should find for the defendant. Numerous instructions were asked by appellant, which were refused, but only the one to which reference is made in the argument will be considered. This instruction was to the effect that if the jury believed from the evidence that appellee, on one or more occasions previous to the date when he was injured, had been warned of the danger incident to alighting from a car while in motion, then his act in so doing, which resulted in his injury, would be negligence, and preclude his recovery, even though the motorman had invited or permitted him to ride, provided they believed from the evidence that appellee was a boy of 13 years and upwards at the time of the accident, and was then in the possession of the same degree of intelligence which boys of that age usually possess. Verdict for appellee, upon which judgment was rendered, from which the company appeals. The questions to be considered are those raised by the errors assigned by appellant on the ruling of the court, refusing motion for nonsuit, refusal to instruct the jury to return a verdict in its favor, not giving the instruction above noted, and in not permitting the witness called by it to testify that, at the time appellee made the statement regarding who was to blame for the accident, he had not been given an opiate or anaesthetic.

Waldron & Devine, for appellant.

John R. Dixon, for appellee.

GABBERT J. (after stating the facts).

Counsel for appellant insist--First, that the act of the motorman in allowing appellee to ride without payment of fare was in direct violation of his orders, without the scope of his authority, and, having no proper permit to ride, the company was under no obligations to appellee as a passenger; second, that appellee, by reason of his age, was capable of comprehending the danger incident to alighting from a moving car, and, his act in this respect being the proximate cause of the accident, he is precluded from maintaining this action. These propositions will be considered together.

The proximate cause of the injury was the act of appellee in voluntarily alighting from the car while in motion, and, were it not for his age, it would be unnecessary to pursue this inquiry further, because in the case of an adult of that age and experience, when he would be presumed to be able to comprehend the consequences of his acts, alighting from a car under similar circumstances, and being thus thrown down and injured, would constitute contributory negligence, and preclude any recovery for the damages thus sustained; so that the first important question to determine is whether or not appellee shall be held responsible, as a matter of law, for his negligence which contributed to the injury of which he complains. There must be some age when a minor, who has not attained his legal majority, will be held responsible for his acts, and when, by reason of his age, the question of his responsibility for such acts becomes one of law, and not of fact. Courts are widely variant on this question, so far as age is concerned. For such acts 'the law fixes no arbitrary period when the immunity of childhood ceases, and the responsibility of life begins.' Nagle v Railroad Co., 88 Pa. St. 35. It only imposes upon minors, not prima facie sui juris, the duty of giving such attention to their surroundings and care to avoid danger as may be fairly and reasonably expected from persons of their age (1 Thomp....