Thomas v. Denver & R.G.R. Co.

• Decision Date: 06 December 1915
• Docket Number: 8254.
• Citation: 153 P. 440,60 Colo. 302
• Parties: THOMAS v. DENVER & R. G. R. CO.
• Court: Colorado Supreme Court

153 P. 440

60 Colo. 302

THOMAS v. DENVER & R. G. R. CO.

No. 8254.

Supreme Court of Colorado

December 6, 1915

Error to District Court, Douglas County; W. S. Morris, Judge.

Action by Walter Thomas, by his next friend, against the Denver &amp Rio Grande Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Melville Sackett & Calvert, of Denver, for plaintiff in error.

E. N Clark and R. G. Lucas, both of Denver, for defendant in error.

GARRIGUES J.

This action is to recover damages for injuries sustained by Walter Thomas, a boy about seven or eight years old, at Sedalia Colo., a small station on the Denver & Rio Grande Railroad between Colorado Springs and Denver. The main line of railroad passes through the town in an easterly and westerly direction. North of and parallel to the main track is a long siding, enabling trains to meet or pass. Some 200 of 300 feet south of the main line is the schoolhouse, and a public road runs between the schoolhouse and the tracks. The railroad right of way through the town and the schoolyard are unfenced. On the day of the accident a long freight train consisting of 20 cars and a caboose, headed for Denver, went onto the siding to meet or pass another train and, after it had gone by, started to pull out onto the main track. About this time a number of school children, dismissed for the noon recess, were playing in the schoolyard. Observing the moving freight train, some six or seven of them, including the Thomas boy, ran across the street and the main track and 'hopped the train,' and by swinging on the ladders on the sides of the cars were having a free ride, or 'stealing a ride.' While so engaged, with his feet or knees in the stirrup and holding onto the ladder with his hands, a jerk of the train threw the Thomas boy off, and the wheels ran over his limbs, crushing them so badly they had to be amputated. There is no evidence that any of the trainmen saw or knew that the boys were on the train. An offer was made to show that the school children had engaged in similar acts before without remonstrance from the train crew, which offer was refused. At the close of plaintiff's case, defendant moved for a directed verdict, which was granted, and the only question is whether or not the court was in error in this ruling.

The evidence fails to show wherein defendant was negligent of any duty it owed to the plaintiff. The verdict was directed upon the ground that the evidence was not legally sufficient to justify a recovery. In this we concur. Jefferson v. Railway Co., 116 Ala. 294, 22 So. 546, 38 L.R.A. 458, 67 Am.St.Rep 116; Railway Co. v. Sain, 90 Ark. 278, 119 S.W. 659, 22 L.R.A. (N. S.) 910; Traction Co. v. Nelson, 66 Ark. 494, 52 S.W. 7; Catlett v. Railway Co., 57 Ark. 461, 21 S.W. 1062, 38 Am.St.Rep. 254; Nolan v. Railway Co., 53 Conn. 461, 4 A. 106; Hasting v. Railway Co., 143 F. 260, 74 C.C.A. 398, 5 L.R.A. (N. S.) 775; Underwood v. Railway Co., 105 Ga. 48, 31 S.E. 123; Griffin v. Railway Co., 101 Ill.App. 284; Haberlau v. Railway Co., 73 Ill.App. 261; Leo Le Beau v. Railway Co., 69 Ill.App. 557; Railway Co. v. Roath, 35 Ill.App. 349; Udell v. Railway Co., 152 Ind. 507, 52 N.E. 799, 71 Am.St.Rep. 336; Evans v. Railway Co., 142 Ind. 264, 41 N.E. 537; Railway Co. v. Redding, 140 Ind. 101, 39 N.E. 921, 34 L.R.A. 767; Railway Co. v. Bradford, 20 Ind.App. 348, 49 N.E. 388, 67 Am.St.Rep. 252; Dougherty v. Railway Co., 137 Iowa 257, 114 N.W. 902, 14 L.R.A. (N. S.) 590, 126 Am.St.Rep. 282; Horn v. Railway Co., 124 Iowa 281, 99 N.W. 1068; Wilson v. Railway Co., 66 Kan. 183, 71 P. 282; Railway Co. v. Plaskett, 47 Kan. 107, 26 P. 401; Railway Co. v. Henigh, 23 Kan. 347, 33 Am.Rep. 167; Monehan v. Railway Co., 117 Ky. 771, 78 S.W. 1106; Swartwood v. Railway Co., 129 Ky. 247, 111 S.W. 305, 19 L.R.A. (N. S.) 1112, 130 Am.St.Rep. 465; Railway Co. v. Webb, 99 Ky. 332, 35 S.W. 1117; Vertrees v. Railway Co., 95 Ky. 314, 25 S.W. 1; Hubener v. Railway Co., 23 La. Ann. 492; Seeley v. Railway Co., 157 Mich. 688, 122 N.W. 214; Burtram v. Railway Co., 148 Mich. 166, 111 N.W. 749; Hamilton v. Railway Co., 142 Mich. 56, 105 N.W. 82; Katzinski v. Railway Co., 141 Mich. 75, 104 N.W. 409; Ecliff v. Railway Co., 64 Mich. 196, 31 N.W. 180; Mehalek v. Railway Co., 105 Minn. 128, 117 N.W. 250; Stendal v. Boyd, 73 Minn. 53, 75 N.W. 735, 42 L.R.A. 288, 72 Am.St.Rep. 597; Pettit v. Railway Co., 58 Minn. 120, 59 N.W. 1082; Powers v. Railway Co., 57 Minn. 332, 59 N.W. 307; Twist v. Railway Co., 39 Minn. 164, 39 N.W. 402, 12 Am.St.Rep. 626; Emerson v. Peteler, 35 Minn. 481, 29 N.W. 311, 59 Am.Rep. 337; Wencker v. Railway Co., 169 Mo. 592, 70 S.W. 145; Barney v. Railway Co., 126 Mo. 372, 28 S.W. 1069, 26 L.R.A. 847; Rushenberg v. Railway Co., 109 Mo. 112, 19 S.W. 216; Curley v. Railway Co., 98 Mo. 13, 10 S.W. 593; Anternoitz v. Railway Co., 193 Mass. 542, 79 N.E. 789, 118 Am.St.Rep. 452; Nugford v. Railroad, 173 Mass. 10, 52 N.E. 1078; Leonard v. Railway Co., 170 Mass. 318, 49 N.E. 621; Casista v. Railroad, 69 N.H. 649, 45 A. 712; Powell v. Railroad Co., 70 N. J. Law, 290, 58 A. 930, 1 Ann.Cas. 774; Murray v. Railroad Co., 93 N.C. 92; Railway Co. v. Liidtke, 69 Ohio St. 384, 69 N.E. 653; Rodgers v. Lees, 140 Pa. 475, 21 A. 399, 12 L.R.A. 216, 23 Am.St.Rep. 250; Woodbridge v. Railroad Co., 105 Pa. 460; Railway Co. v. Connell, 88 Pa. 520, 32 Am.Rep. 472; Elkins v. Railway Co., 64 S.C. 553, 43 S.E. 19; Railroad Co. v. Ray, 124 Tenn. 16, 134 S.W. 858, Ann.Cas. 1912D, 910; Stone Co. v. Pugh, 115 Tenn. 688, 91 S.W. 199; Railway Co. v. Davis (Tex.Civ.App.) 110 S.W. 939; Railway Co. v. Vallejo, 102 Tex. 70, 113 S.W. 4, 115 S.W. 25; Mitchell v. Railway Co., 146 U.S. 513, 13 S.Ct. 259, 36 L.Ed. 1064; Railroad Co. v. Hickey, 102 Va. 394, 46 S.E. 392; Smalley v. Railway Co., 34 Utah 423, 98 P. 311; Johnson v. Railway Co., 49 Wash. 98, ...