Vallery v. Barrett

• Citation: 167 P. 979,63 Colo. 548
• Decision Date: 02 April 1917
• Docket Number: 8667.
• Parties: VALLERY v. BARRETT.
• Court: Supreme Court of Colorado

167 P. 979

63 Colo. 548

VALLERY v. BARRETT.

No. 8667.

Supreme Court of Colorado

April 2, 1917

Rehearing Denied Oct. 8, 1917.

Error to District Court, Lake County; Charles Cavender, Judge.

Action by Florence L. Barrett, as administratrix of the estate of John Lawrence Barrett, deceased, against George W. Vallery as receiver of the Colorado Midland Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Henry T. Rogers, George A. H. Fraser, and Rogers Ellis & Johnson, all of Denver, for plaintiff in error.

Hogan &amp Bonner, of Leadville, for defendant in error.

TELLER J.

The defendant in error, as administratrix of the estate of John L. Barrett, deceased, brought suit against the plaintiff in error to recover damages for the death of her intestate, alleged to have been caused by the negligence of the railroad company while he was in its employ. The train on which Barrett was employed when killed was engaged in interstate traffic, and the action was brought under the federal Employers' Liability Act.

The amended complaint alleges that deceased was employed by the defendant as a fireman on engine No. 4, of said train, which was moving westward from Arkansas Junction; that while said train was passing over bridge 134-A, which bridge was imperfectly constructed, defective, and unsafe, in that there was insufficient space or clearance between the engine and the side trusses of the bridge, and while plaintiff's intestate was keeping a lookout around and past the side of the engine cab, as the rules of said company required him to do, his head came in contact with the side of the bridge, by reason of said narrow clearance, in consequence of which his head was crushed, and he was cast upon the ground and killed. The answer put in issue these allegations of the complaint, as well as other matters, which need not be considered, since the court submitted to the jury only the question whether or not the death of Barrett was caused by the negligence of the defendant in constructing and maintaining a bridge, defective in the respect named.

The testimony showed that the body was found a few feet west of the bridge, marks and blood stains on the bridge, and blood on the ground indicating that deceased had been dragged there from a point 10 or 15 feet east of the west end of the bridge. His cap and a portion of his skull and brains were found beneath the bridge at said point. It is admitted that the clearance between the upright timbers of the bridge and the engine was about 18 inches. It is also admitted that the rules require a fireman on duty to look out for signals and obstructions, 'as far as practicable.' There was testimony in regard to the wounds on the body, tending, as plaintiff claimed, to show that while deceased was leaning out from the engine to look ahead for signals and obstructions, his head was struck and crushed by one of the side rods of the bridge.

There was testimony on the one side that a man of 5 feet 8 inches tall, by leaning out a considerable distance, could reach with his head the rods on the side of the bridge. On the other hand, a witness 6 feet tall testified that he could not, by leaning out from the deck beam, touch the rods or timbers without holding to something. A witness testified that, while on duty as a fireman, in crossing this bridge, his hat had been knocked off by the timbers when he was leaning out of an engine which was a little wider than the one on which deceased was riding. There was testimony also of employés of the plaintiff in error, who had been in service a long time, to the effect that the clearance on this bridge was not so small as to make it dangerous.

A witness for defendant testified that lumps of coal naturally fall on the engine deck, and that it was possible that a person stepping on such scattered coal might trip or wrench his ankle and fall. This was to support the defendant's contention that deceased fell from the engine, and thus was injured. No one saw the accident, which occurred before daylight in the morning; but the engineer testified that he saw Barrett's feet and a part of his legs as they disappeared from the engine. There was considerable testimony on the part of defendant as to the width of bridges on other railroads, as well as to a fireman's position on the engine when looking out, and as to the speed of the train, the swaying of the engine, and deceased's opportunities for knowing the condition of the bridge. It appeared that a pilot conductor was occupying the fireman's seat on the left side of the engine; hence deceased could not look out through the window on his side of the cab. The jury found for the plaintiff, and assessed the damages at $12,500. Judgment was entered on the verdict.

Counsel for plaintiff in error earnestly contend that the court erred in refusing to direct a verdict for the defendant, and cite many cases to the effect 'that it is not admissible to go into the domain of conjecture and pile one presumption upon another.' That, they say, was done by the jury in this case.

It is unnecessary to consider the application of those cases to the facts of this case, since this court has laid down rules applicable to the facts in evidence, and which determine it. In Hotchkiss Mt. M. & R. Co. v. Bruner, 42 Colo. 305, 94 P. 331, this court said:

'In actions of this character it is not necessary to show by eyewitnesses that the deceased came to his death because of negligence on the part of the defendant and freedom from negligence on the part of the deceased. These matters may be proven by showing circumstances from which their existence may fairly and logically be inferred.'

Again:

'It is only where there is an entire absence of testimony tending to establish the case that a nonsuit may properly be ordered or a verdict directed.'

See, also, Williams v. Sleepy Hollow M. Co., 37 Colo. 62-70, 86 P. 337, 7 L.R.A. (N. S.) 1170, 11 Ann.Cas. 111.

This is the rule everywhere recognized.

'When the facts are disputed and the inferences from those facts uncertain, and different conclusions may be drawn by different minds, it is for the jury to make them.' Black's Law and Practice in Accident Cases, 343.

Here the jury was not left to guess at the cause of injury. There was evidence of facts from which such cause might fairly and logically be inferred. It is urged that...