Rio Grande Western Ry. Co. v. Rubenstein

• Decision Date: 08 October 1894
• Parties: RIO GRANDE WESTERN RY. CO. v. RUBENSTEIN.
• Court: Colorado Court of Appeals

38 P. 76

5 Colo.App. 121

RIO GRANDE WESTERN RY. CO. v. RUBENSTEIN.

Court of Appeals of Colorado

October 8, 1894

Appeal from district court, Arapahoe county.

Action by George Rubenstein against the Rio Grande Western Railway Company for damages for personal injuries received. Judgment for plaintiff. Defendant appeals. Affirmed.

Wolcott & Vaile and Henry F. May, for appellant.

Benedict & Phelps, for appellee.

BISSELL, P.J.

In December, 1889, the appellee, Rubenstein, was a passenger on the Rio Grande Western Railroad, traveling from Salt Lake City to Denver. During the journey, and at a point between two stations on the road called "Soldier's Summit" and "Clear Creek," the car in which he was riding overturned, and Rubenstein was considerably hurt. He brought this action to recover for the injuries. To summarize his allegations, he charged in his complaint that the roadbed, ties, and rails were in an unsafe and dangerous condition; alleged that the roadbed was loose and unstable that the ties were rotten and decayed, and the rails insecurely fastened; and by reason of all these things the way was in a dangerous condition, and it was negligence for the company to operate their trains on it. In making his proof, however, he failed to offer any testimony concerning these several allegations, but contended himself with proving that he was a passenger for hire, that the car overturned and he was injured to the extent of his damages. On this circumstance is based one of the principal errors assigned by the appellants, viz.: There was such a variance between the pleading and the proof that they were entitled to a nonsuit on the conclusion of the plaintiff's case.

In proving the extent of his injuries and the damage which he had sustained, Rubenstein showed he was a traveling salesman in the employ of a New York house. His compensation was made up partially of a salary and his expenses paid by the house and partially by commissions, which were computed upon the total of his sales during the fiscal year. While giving his evidence, he was asked as to the value of his time at the season when he was laid up. The company objected to the proof, putting their objection on the naked ground that it was not competent for the plaintiff to show what profits he might have made during the time he was confined to his room and incapacitated from transacting business. The objection was overruled, with the suggestion by the court that whether they were properly recoverable might be developed by the cross-examination of the witness. Rubenstein answered that the value of his time was $3 per day. The recovery was increased some $60, probably, on the basis of this value. The witness was not examined concerning the estimate, and the record is silent as to the foundation of the valuation which the witness put on his time.

During the progress of the trial, the plaintiff offered proof as to his injury, and stated that he used a good many handkerchiefs to staunch the blood, which measurably was supposed to show the severity of his hurt. The company attempted to controvert this evidence by the production of a physician as an expert of whom they inquired concerning the amount of blood which the evidence would indicate the injured party had lost. The court excluded the evidence, and the company saved their exception.

This statement of facts very clearly indicates the principal propositions on which the appellants rely to reverse the case. None of their positions are well taken. It has been held in some jurisdictions, in cases of this description that, where a plaintiff charges negligence of a particular sort, he is limited in his proof to the causes specified, and he must offer some testimony in support of his allegations in order to sustain a recovery. The general rule undoubtedly is that the passenger who shows he is being carried for hire, and that the vehicle overturns, and occasions him injury, has made out a prima facie case. The legal presumption in actions of this description is that the injuries are occasioned by the fault of the carrier or the condition of his vehicles, and the law casts on him the burden of showing that he has used reasonable care and skill to provide safe appliances and a safe road for the transportation of his passengers. This rule has been recognized by the supreme court, and is therefore the law of the state. Sanderson v. Frazier, 8 Colo. 79, 5 P. 632.

This narrows the inquiry to the simple proposition whether, having charged negligence of a particular kind, the plaintiff may still prove that he was a passenger for hire, the happening of an accident of this sort, and, relying upon the prima facie case which he has made out, rest upon the legal presumption which would obtain in the case of a general charge of negligence. It is unnecessary to decide this precise question. When the plaintiff concluded, the defendants moved for a nonsuit. The defendants did not rest on their exception to the ruling of the...