Roche v. Denver & R.G.R. Co.

• Decision Date: 12 October 1903
• Parties: ROCHE et ux. v. DENVER & R.G.R. CO.
• Court: Colorado Court of Appeals

73 P. 880

19 Colo.App. 204

ROCHE et ux. v. DENVER & R.G.R. CO.

Court of Appeals of Colorado

October 12, 1903

Appeal from District Court, Arapahoe County.

Action by James Roche and wife against the Denver & Rio Grande Railroad Company. From a judgment for defendant, plaintiffs appeal. Reversed.

Patterson, Richardson & Hawkins, for appellants.

Wolcott Vaile & Waterman and Wm. W. Field, for appellee.

THOMSON P.

This action was brought by the appellants against the appellee to recover for the loss of their son James Roche, Jr., a brakeman in the employ of the appellee, who was killed on the 30th day of December, 1898, while supposedly engaged in the discharge of his duties as such brakeman. The complaint alleged that, while a train of cars operated by the defendant was at Leadville, the defendant caused young Roche to go between two of the cars of the train for the purpose of making or unmaking an air coupling, or for some other purpose which required his presence between the cars; that while so engaged he was caught between the deadwood of one of the cars and a log projecting from a load of logs upon the other, and killed; that the projection was due either to negligent or unskillful loading of the logs upon the cars, or to some cause operating subsequently; that the cause of the accident was the forcing of the cars together by an attempt to couple a helper engine to the rear of the train; that the dangerous condition of the load was or should have been known to the defendant, but was unknown to the deceased; and that the injury was received without fault or negligence on the part of the deceased. The answer put in issue all of the allegations of the complaint, and averred that the injuries received by Roche, if any were received by him, were due to his own want of care, or to the negligence of his fellow servants.

The defendant was operating a branch of its road running between Leadville and Ibex. Herman O. Bair was the conductor in charge of that branch. Roche came to Leadville on the night of the 28th of December, having been sent there by the defendant's trainmaster from Salida, and reported to Bair, who was unacquainted with him, for work. Bair gave him work on the 29th as head brakeman. On the morning of the 30th, Roche assisted Bair in making up a train consisting of four cars of coal and a car of rough logs, intended for mining timbers, and in getting out a flanger. The logs were of different sizes. In making up the train, Bair observed that a coal car intended for the train was marked "Cracked Flange." This car was ordered detached and the other four were pulled out upon the main line. The grade from Leadville to Ibex is quite steep, and a helper engine was ordered attached to the rear of the train. The flanger was behind the head engine, the car of logs followed it, and the coal cars came next. The timber car and the coal cars were coupled together when they were put into the train. No air was to be used on the train that morning; and whether the air hose between these two cars was coupled together, the witnesses did not know. Immediately after the contact of the helper engine with the rear of the train, Roche was found lying beside the track on the left side of the cars, with his head crushed in; and it was then discovered that a log lying on the floor of the timber car projected beyond the end of that car, and towards the coal car behind it, about 10 inches, so that if the two cars were jolted together the end of the projecting log would strike the deadwood of the coal car to the left of the drawhead. The ends of the other logs were even with the end of the car on which they rested. Blood was found on the end of the projecting log and on the opposite deadwood of the coal car. The time of the accident was near sunrise. One of the witnesses said the sun was not up at the time, and it was not full daylight. The weather was quite cold. The company had provided inspectors at Leadville, whose duty it was to see that the cars generally were in good order before they were started. These inspectors had marked a car "Cracked Flange," and it was detached. Their duties, however were confined to an inspection of tracks, gears, and wheels. They did not inspect loaded cars. The duty of such inspection devolved upon the conductor. On this occasion he made a very slight inspection. To use his language, he merely walked up the side of the cars and overlooked them generally. He did not see the projecting log. Whether the projection occurred in the loading, or was attributable to some other cause, no witness positively knew. Bair, however, testified that this log must have been "sticking out" before the helper engine was coupled on; that logs were usually rolled on the car in any way, but they generally bound each other; and that, as a rule, whenever shunting occurred, the whole load shifted together. Roche did not go between the cars in obedience to any direction from the conductor; but, according to the testimony of the latter, it was his...