Trumbull v. Donahue

• Decision Date: 11 May 1903
• Parties: TRUMBULL v. DONAHUE.
• Court: Colorado Court of Appeals

72 P. 684

18 Colo.App. 460

TRUMBULL v. DONAHUE.

Court of Appeals of Colorado

May 11, 1903

Appeal from District Court, Clear Creek County.

Action by Samuel E. Donahue against Frank Trumbull, as receiver of the Union Pacific, Denver & Gulf Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

E.E. Whitted and J.G. McMurray, for appellant.

J.J White, for appellee.

THOMSON P.J.

Suit by the appellee against the appellant. The complaint alleged that the defendant was receiver of the Union Pacific, Denver & Gulf Railway Company; that on the 4th day of July, 1898 the plaintiff bought and paid for a ticket from Georgetown to Silver Plume, and entered one of the trains of the defendant to be carried as a passenger between those points; that the passenger car of the train was crowded with passengers, all the seats being occupied, and men, women, and children standing in the aisle, so that he could not go through the car; that he then went upon the platform of the baggage car to which the passenger car was attached, the platforms of both cars being also occupied by passengers, and the only vacant place which he could find being on the platform of the baggage car; that the defendant's road between those points was rough, uneven, and irregular, and had a great many curves; that the plaintiff stood in front of the door of the baggage car, and braced and supported himself, and kept himself from falling off the car, by placing his left hand on the frame of the door of the baggage car about six inches from the crack of the door, and endeavored to keep it there but the unsteady movement of the train would cause it to slip, so that he could not possibly keep it constantly in one place; that, while he was standing on the platform and so supporting himself, a brakeman in the employ of the defendant came from the passenger car, his intention being unknown to the plaintiff, and, without giving any warning of what he was about to do, passed behind the plaintiff into the baggage car, and then carelessly negligently, and recklessly shut the door, catching the little finger of the plaintiff's left hand between the door and the door frame, injuring, crippling, and almost destroying it; that the brakeman saw, or ought to have seen, the dangerous position of the plaintiff, knew or ought to have known that the plaintiff's hand was liable to move on account of the unsteady movement of the train, knew or ought to have known that the plaintiff's position was necessitated by the overcrowded condition of the train, and knew of the curves in the road, and that the train was about to go round one of the curves. Judgment was demanded for $1,500. The complaint also contained a prayer for interest on the amount from the day of the accident. The defendant moved to strike out all those portions of the complaint relating to the condition of the train and platforms, the condition of the roadbed, the knowledge which the brakeman had or ought to have had of the condition of the road, and the knowledge he ought to have had of the position of the plaintiff. The motions were denied, and the defendant answered, putting in issue the allegations of the complaint, and averring that whatever injuries the plaintiff may have sustained were due to his own carelessness and negligence. The allegation of contributory negligence was denied by a replication. The plaintiff had a verdict for $250, and from the judgment entered upon it the defendant appeals.

It appears from the evidence that on the occasion in question the train was furnished with a regular passenger car and a smoking car; that both cars were full of passengers; that the car platforms were also crowded; and that the roadbed was very rough and uneven. The plaintiff testified that before boarding the train at Georgetown he purchased a first-class ticket, and, by reason of the crowd in the cars, went upon the platform at the rear end of the baggage car; that he rode with his left hand resting on the circular jamb to the right of the door of that car, and his face toward the right side of the car; that without such support it was impossible, by reason of the roughness and unevenness of the road, to stand on the platform; that while he was standing there, and as the train was rounding a curve, a brakeman came upon the platform of the baggage car and opened the door; that just then the car, in passing around the curve, received a side jar, which threw the plaintiff's hand into the door; that the brakeman then closed the door upon the plaintiff's finger; that to close it he pushed it twice; that, while the plaintiff's finger was cut by the first push, it was not cut off; and that the brakeman then pushed the door the second time and cut off the finger. It appears that the plaintiff immediately put his shoulder to the door and forced it open, and he testified that the brakeman, who was on the inside of the door, holding it, then said to the conductor, "Look what this door has done to this man's hand," and to the plaintiff, "Turning that curve throwed your hand off; those doors are always hurting some one." The plaintiff also stated that, in approaching the door to open it, the brakeman passed behind him, and that he had no intimation or suspicion of what the brakeman was about to do. A number of persons who were riding on the platform saw the occurrence, and also the position occupied by the plaintiff, and, as witnesses, corroborated his testimony as to his position, the opening and shutting of the door, and the resulting injury. The denial by the court of the defendant's motion to strike out portions of the complaint, the admission of evidence in support of the allegations objected to, the permitting of witnesses to testify that they saw the position of the plaintiff before and at the time of the accident, the admission of the plaintiff's testimony that the brakeman said, "Turning that curve throwed your hand off," and the refusal by the court of instructions requested by the defendant, are assigned for error. There are other assignments, however, which are not mentioned in the argument, and will therefore not be noticed by us; but every point now pressed will receive careful consideration.

The objections to the allegation respecting the crowded condition of the train were that it was immaterial, and that the fact of such condition was not the proximate cause of the injury. The defendant not only sought to eliminate the allegation from the complaint, but strenuously resisted the introduction of evidence in its support, on the additional ground that it would tend to create in the minds of the jury a...