Union Depot & Ry. Co. v. Londoner

• Citation: 50 Colo. 22,114 P. 316
• Court: Supreme Court of Colorado
• Decision Date: 06 March 1911
• Parties: UNION DEPOT & RY. CO. v. LONDONER.

114 P. 316

50 Colo. 22

UNION DEPOT & RY. CO. v. LONDONER.

Supreme Court of Colorado

March 6, 1911

Appeal from District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by Wolfe Londoner against the Union Depot & Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Dorsey & Hodges, for appellant.

Fred W. Parks and C.J. Blakeney, for appellee.

MUSSER J.

On a certain morning in September, 1905, Wolfe Londoner accompanied his daughter from his residence to the Union Depot in Denver to aid her in getting aboard a train of the Denver & Rio Grande Railroad Company as a passenger for Colorado Springs. Upon arriving at the depot, they walked through an open arched passageway, which ran through the depot building, thence through an open gateway, directly in line with the said passageway, into the yard, and they came upon a platform about 50 feet in width, made of brick and plank and built to the level of the rails, so as to afford a convenient walk for those coming from and going to trains. On either side of this walk, the various trains, about to depart, were standing and receiving passengers. After passing through the gateway, the first track reached was called track No. 1. Then came a brick platform about 16 feet wide, running for a considerable distance from the broad walk parallel to the tracks and designed for the use of those boarding trains standing on tracks No. 1 and No. 2. Then came track No. 2; then a passageway parallel to the tracks and about 9 1/3 feet wide, between the right rail of track No. 2 and the left rail of track No. 3, looking to the southwest toward Sixteenth street; then track No. 3; then another brick walk about 16 feet wide running parallel with the tracks and designed for the use of those boarding trains standing on tracks No. 3 and No. 4. The train that the daughter desired to board was standing on track No. 3. It was the occasion of a Grand Army Encampment in Denver, and a great crowd of people were congregated on the wide walk going to their various trains. Londoner and his daughter proceeded in the crowd to the train on track No. 3. The testimony on behalf of Londoner shows that on the broad walk at the rear of the train were two or three men dressed like railroad men, who cried out that that was the Rio Grande train for Colorado Springs and Cripple Creek. The crowd seemed to turn back from the 16-foot walk between tracks No. 3 and No. 4, and these men indicated by their gestures that the people should pass down the narrow passageway between tracks No. 2 and No. 3. A large number among whom were Londoner and his daughter, turned down this passageway. The way was not bricked, but was formed of charred coal or cinders to the level of the tracks. In it and about 43 feet from the broad platform was a gas valve, elliptical in shape, several inches long and several inches wide, projecting above the walk about 4 inches. Londoner stumbled over this, fell, and severely hurt his knee. He arose, went forward with his daughter, until he came to an open door of a car. He then assisted his daughter into the car. After this he went home. The fall had affected his knee in such a way that it caused what one of the physicians who testified called water on the knee, and gave as the technical name 'acute synovitis.' He suffered pain, was bedfast for about two months, and was kept away from his business for about four months, after which by the aid of crutches for a time, he gave some attention to business, and more as the knee improved. There was evidence that the knee was not yet well at the time of the trial in May, 1907, and that the weakness would continue. He expended about $800 for physicians, surgeons, nurses, and other things necessary for treatment. He was engaged in the grocery business, and had been so engaged in Denver for about 40 years, giving the business his constant supervision and care. The jury returned a verdict of $2,000 in his favor, and from a judgment entered on this verdict the Depot Company appealed.

A special interrogatory was submitted to the jury, asking them whether there was a train standing upon track No. 2 at the time of the accident. The jury answered that they were unable to agree on that point. If there was a train there, then the space between the car on track No. 2 and the car on track No. 3 was about four feet. The appellant claims that it was but an agent for the several roads that made use of its depot, tracks, and yard, and that, therefore, if any one is liable for the injury, it is the Denver & Rio Grande Railroad Company, in whose train the daughter intended to and did become a passenger. It is upon this claim of agency that most of the errors assigned by appellant are based.

The appellant was organized in 1899, under the laws of Colorado for the purpose, among others, of becoming the successor to the Union Depot & Railroad Company, which constructed, owned, maintained, and operated the Union Depot yards and tracks. The appellant asserts that it took over and succeeded to all the property, rights, and contracts of its predecessor; that among the things to which it succeeded was a contract between its predecessor and the railroad companies relative to the depot, yards, and tracks, wherein such a relation was established between it and the several companies as to make the appellant the agent of the railroad companies, and to relieve it of any duty to the public and of any liability in this case. The appellant was organized for the further purpose of owning, maintaining, and operating a Union Depot in Denver, and in the accomplishment of this purpose it owned, used, maintained, and operated for profit, in its own name, the depot building, yards, and tracks for the accommodation of the traveling public, the same as any depot, yards, and tracks are maintained and operated for such use. It has been already determined in this state that the purpose for which the appellant was organized, and which had been accomplished by it, was for the accommodation of the traveling public. Union Depot & R. R. Co. v. Meeking, 42 Colo. 89, 94 P. 16, 126 Am.St.Rep. 145. It is the duty of railroad companies, as carriers of passengers, to provide proper stational accommodations and safeguards for persons who may come to stations in order to become passengers, or who may be discharged from incoming trains. Hutchinson, Carriers (3d Ed.) § 928. This duty, relative to stational facilities, is a duty which the carrier owes to the traveling public as much as any other of its duties, and it is a part of the duties which it thus owes. If this stational duty is performed by some one other than the carrier itself, it must of necessity remain a duty to the traveling public due from the one that undertakes to perform it. It is not intended to intimate that the carrier would be relieved of its duty because another undertakes to perform the same duty. The duty and liability of the carrier is not considered in this case. It was for the performance of this stational duty that the appellant was created, and it accomplished the purpose of its creation when it undertook and performed that duty in its own name, under its own direction, with its own buildings, tracks, and other structures, in its own yards and on its own property. By its conduct it professed and made ostentatious the fact that it was performing this duty. There is no doubt that by private contract between the appellant and the railroad companies the latter made use of the facilities which the former afforded, and it may be that the contract established certain private relations between them, which would be considered in any controversy among themselves or their privies, but that private contract does not profess to, nor could it, if it did, change the relation of the appellant to the public, a relation which arose out of the very object of its creation and was assumed, professed, and held out by it in the ostensible accomplishment of that object. The appellant was the owner and occupant of this station, yard, and tracks, and it is clear from the very nature of its business that it invited all those who might desire to take passage on any of the roads running from its station to come upon its premises. This invitation extended also to those who desired to accompany an intending passenger to see him off or to aid him in getting aboard a train, and such persons came lawfully upon the premises by virtue of such invitation. D. & R. G. R. R. Co. v. Spencer, 27 Colo. 313, 61 P. 606, 51 L.R.A. 121; Dowd v. C., M. & St. P. R. Co., 84 Wis. 105, 54 N.W. 24, 20 L.R.A. 527, 36 Am.St.Rep. 917; Elliott, Railroads (2d Ed.) § 1256. There is a well-known rule of law...