Sanderson v. Frazier

• Decision Date: 23 January 1885
• Citation: 5 P. 632,8 Colo. 79
• Parties: SANDERSON, impleaded, etc., v. FRAZIER.
• Court: Colorado Supreme Court

5 P. 632

8 Colo. 79

SANDERSON, impleaded, etc., v. FRAZIER.

Supreme Court of Colorado

January 23, 1885

Error to district court, Arapahoe county.

Hugh Butler, for plaintiff in error.

Wells, Smith & Maccon, for defendant in error.

STONE J.

The law governing that liability of stage-coach proprietors as common carriers of passengers is quite well settled by judicial decisions of the highest courts.The law imposes upon such carriers the duty of providing roadworthy vehicles, suitable for the safe transportation of passengers; steady and manageable horses, with strong and proper harness; and careful drivers of reasonable skill and good habits.Although their undertaking is not one absolutely to convey safely,--that is to say, while they do not warrant the safety of passengers at all events,--yet their undertaking and liability go to this extent: That their means of transportation are suitable and sufficient; that they and their agents possess competent skill; and that they will use all due care and diligence in the performance of their duty.Respecting the measure of this care and diligence considering that such carriage is charged with the lives limbs, and health of human beings, it has been held that passenger carriers bind themselves to carry safely those whom they take into their coaches, 'as far as human care and foresight will go; that is, for the utmost care and diligence of very cautious persons.'Some cases even hold that such carriers are responsible 'for any, even the slightest, neglect.'This doctrine is laid down by the supreme court of the United States in the case of Stokesv.Saltonstall, 13 Pet. 190, which is regarded by the authorities as the leading case on this subject in the United States; and the same doctrine is stated as the law by Mr. Story in the text of his work on Bailments, § 601.In support of the same rule as to liability in such cases are the following authorities: Farishv.Reigle, 11 Grant. 697;McLeanv.Burbank, 11 Minn. 277, (Gil. 189;)Mauryv.Talmadge, 2 McLean, 157; Peckv.Neil, 3 McLean, 23.

On the other hand, it is the duty of passengers to comply with the reasonable regulations of the carrier, and to exercise proper care and diligence in avoiding injury to themselves; for the rule that one cannot recover for an injury which has been caused by his own negligence, or where, by his own fault, he has so far contributed thereto that but for such fault on his part the injury would not have happened, is applicable to this class of passengers.

The appellee, Frazier, was a passenger in one of the stage-coaches of appellants, running at that time between Canon City and Leadville, and by the upsetting of the vehicle his arm was broken, and the alleged negligence of the driver in causing the upset is the ground of action for the resultant injury.A question of contributory negligence on the part of the appellee was made by the pleadings in the court below, and one of the alleged errors relied upon by appellants, in seeking to reverse the judgment, is that the verdict is contrary to the evidence and the law in respect to such alleged contributory negligence.The act of appellee constituting the negligence complained of was in having his arm, at the time of the accident, 'outside the coach.'The upset was caused by the wheel on one side of the vehicle striking a rock at one side of the road, whereby the stage was thrown over upon the opposite side.This portion of the road was in a canon in a mountainous part of the journey.It was in the night; there was no light on that side of the stage which struck the rock; but the driver testified that it was not so dark but that he was able to see the rock just before striking it.The appellee was sitting on the end of the seat on the opposite side.There were two other passengers in the same seat, which crowded appellee close to the side.He had his arm either resting on the rail or projecting outside the body of the stage, so that when overturned the other passengers in the same seat were thrown down upon him, his arm was caught under some portion of the vehicle and broken, and he was unable to be extricated until the other passengers had got out, and lifted up the stage.Upon this state of facts it is contended by counsel for appellants that appellee was chargeable with such contributory negligence as ought to bar a recovery.

In support of this contention the case of Pittsburg & C. R Co.v.McClurg, 56 Pa. St. 294, is cited, where a passenger, by reason of the protrusion of his arm from the window of the car in which he was riding, was injured by the arm coming in contact with another car standing on a switch, and the court held, and, as we think, correctly, that where such passenger 'puts his elbow or arm out of the window voluntarily, without any qualifying circumstances impelling him to do it, it is negligence in se, and when that is the state of the evidence it is the duty of the court to declare the act negligence in law.'There is a wide difference, however, between such a case and the one before us.Railway coaches pass along an undeviating track, and often within a few inches of signal-posts, switch-bars, cattle-guards, bridge timbers, and cars upon side tracks, rendering it dangerous for passengers to expose any portion of the body beyond the outer line of the coaches, which themselves project beyond the wheels and the track.But stage-coaches do not in this particular differ from other road vehicles, the wheels of which project laterally beyond the body of the vehicle, which circumstance, in connection with the different character of the roadway and mode of transportation, is an immunity against danger from the mere projection of an arm outside the window or beyond the line of the body of such vehicle.In the case of an injury like that in the railway case cited, the projection of the arm outside the window is the cause of the resultant injury.In the case of the overturning of the stage of appellants by running upon a rock, the position of appellee's arm was no more a cause of the upset, which produced the injury, than the position of the arms of the other passengers, or of the hat upon his head.Besides, the evidence in the record shows that the vehicle in question was not a regular or ordinary stage-coach, with windows, but a Concord mail-wagon or canvas hack known as a 'jerky,' without windows, but having a canvas...