Wall v. Livezay

• Decision Date: 01 December 1882
• Citation: 6 Colo. 465
• Parties: WALL ET AL. v. LIVEZAY.
• Court: Colorado Supreme Court

6 Colo. 465

WALL ET AL. v. LIVEZAY.

Supreme Court of Colorado

December, 1882

Error to District Court of Lake County.

THE 'second' instruction given and referred to in the opinion of the court was as follows:

'Second. If the jury find for the plaintiff, they should, in estimating his damage, take into consideration the bodily suffering of the plaintiff, interference with carrying on his business, all expenses, if any, incurred and paid by him on account of the injuries he received, including the employment of physicians and nurses and cost of medicine, and they should also consider the nature of the injuries suffered, as to whether they are likely to prove permanent or temporary only.'

The facts are sufficiently stated in the opinion.

Messrs LAUS and GUNNELL and Mr. E. B. SLEETH, for plaintiffs in error.

Messrs WESTON and ROWELL, for defendant in error.

BECK C. J.

The only questions presented by the assignment of errors which are seriously contested relate to the instructions given to the jury at the trial.

The first instruction informed the jury that every material allegation of the complaint not denied by the answer might be taken as true, and need not be proved by the plaintiff.

The objection to this instruction is, that it is not applicable to the present case.

The substance of the complaint is, that on the 22d day of September, 1879, the defendants were partners under the name and style of Wall & Witter, and were common carriers of passengers by stage for hire from Red Hill station, on the Denver, South Park & Pacific Railroad, to the city of Leadville. That on the day named they undertook to carry the plaintiff from said station to Leadville for the sum of $8 which he paid, and that he was thereupon received upon their coach as a passenger. It sets out the facts of the overturning of the coach at Red Hill, averring that the plaintiff received serious and permanent injuries, from which he has never recovered; his continued sickness and inability to attend to business, and that he was forced to expend the sum of $500 for medical attendance and nursing, averring that the accident occurred through the carelessness and negligence of the defendants. Damages are laid in the sum of $10,000.

The answer does not in any manner deny the copartnership of the defendants, the style of their firm, that they were at the time mentioned common carriers of passengers by stage, that they undertook to carry the plaintiff, as stated, nor the payment of his fare. It does not deny the overturning of the coach, that plaintiff sustained the injuries stated, or that he expended $500 for medical attendance and nursing. The above facts, not being controverted by the answer, rendered the instructions complained of peculiarly appropriate to this case.

It was suggested in the argument that the instruction afforded an opportunity, which was taken advantage of, to argue to the jury that the amount of damages claimed was admitted by the pleadings.

The language of the instruction is plain and unambiguous, and no such inference is fairly deducible from it. The amount of damages claimed was $10,000. The answer in substance denied that plaintiff had sustained any damages through the carelessness and negligence of the plaintiffs, and averred that whatever damages he sustained were sustained in consequence of his own negligence.

The latter averment was denied by the replication.

The issues, therefore, tendered by the pleadings were: Was the injury occasioned by the negligence of the defendants? Did the plaintiff contribute thereto, and what amount of damages, if any, is he entitled to recover?

The instructions given recognized these issues and were applicable thereto.

The amount of the verdict, which was $4,500, being less than half the amount claimed, shows that the jury did not misapprehend the force of the instruction.

The objections to the second instruction are without merit. It correctly states the elements of compensatory damages which the jury may take into consideration in estimating the damages sustained by the plaintiff, if they find for the plaintiff. Subsequent instructions advised the jury that, in order to entitle the plaintiff to a verdict in his favor, they must find from the evidence that the accident and injury resulted from the carelessness or negligence of the defendants, their agents or drivers; but that if it appeared from the evidence that the plaintiff was chargeable with carelessness or negligence such as an ordinarily prudent man would have avoided under the circumstances, and that such carelessness or negligence contributed to the injury, they must find for the defendants. In this connection they were instructed to take into consideration the situation of the plaintiff and the surrounding circumstances at the time of the accident, in determining whether or not there was a want of ordinary care on the part of the plaintiff.

In respect to the fourth instruction given on behalf of the plaintiff, defendants' counsel contend that it contains two erroneous propositions, the first of which is decidedly against the weight of authority.

The first proposition is, that proof that the plaintiff was a passenger on defendants' coach, that the coach was overturned, and that the plaintiff was injured thereby, raises the presumption that the overturning occurred through the negligence of the defendants.

The second proposition is, that the foregoing facts being established to the satisfaction of the jury, the burden of proof is cast upon the defendants to show the absence of such negligence on their part, or negligence on plaintiff's part, which contributed to the injury.

Many authorities are cited to show the incorrectness of the doctrine contained in this instruction. Only a few of them are strictly analogous to this case. The Michigan cases are, however, in point. The doctrine of the Michigan courts is, that the plaintiff must show affirmatively that the defendant is entirely responsible for the injury; that the material negligence which led to the accident was that of the defendant, and that the plaintiff did not contribute towards it. They say the 'plaintiff must establish completely whose fault it was and explain the whole transaction.' Mich. Cen. R. R. Co. v. Coleman, 28 Mich. 447; Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99; Lake Shore & Mich. S. R. R. v. Miller, 25 Mich. 274; Kelly v. Hendrie, 26 Mich. 255.

While the fourth instruction is in conflict with the rule established in the cases above cited, we do not think it opposed to the weight of authority upon the point, but in conformity therewith.

The same rule laid down in the instruction was recognized by this court as the correct one in the case of Denver, S. P. & P. R'y Co. v. Woodward, Administrator, 4 Col. 1.

It will be observed that the instruction does not announce the broad doctrine that the mere fact that an injury was suffered by a passenger while on his journey is suffient to raise a presumption of negligence on the part of he carrier. No abstract rule of law is laid down, but the legal propositions contained in the instruction are confined to the case on trial, and based upon the evidence before the jury.

We concede the law to be, that in, order to entitle a passenger to recover against a carrier for injuries received on the journey, he must prove that he received the injuries while a passenger upon the coach or road of the carrier, and that the same were occasioned by the negligence of the carrier. A prima facie case, however, is made out by proof that the relation of carrier and passenger existed between the parties; that an accident occurred resulting in injury to the passenger, and that it was occasioned by the failure of some portion of the machinery, appliances or means provided for the transportion of the passenger. This proof being made, a presumption of negligence on the part of the carrier arises, and the plaintiff is not bound to go further and show the particular defect or cause of he accident, until the presumption rebutted. It devolves upon the carrier then to rebut this presumption by evidence that he exercised the greatest degree of diligence practicable under the circumstances.

The reason of the rule, as applied to this class of cases, appears to be founded in the nature of the carrier's undertaking, and the relations subsisting between him and those whom he undertakes to carry.

He assumes the responsibility of providing suitable and sufficient means for transportation, and he has the exclusive management of the same during the journey. As a general rule when an injury occurs, he has the superior, if not the exclusive, means of knowledge within his control as to what caused the accident. In view of his undertaking, and of these relations, the law binds him to make use of all the ordinary precautions for the safety of the passengers on the road, and to do all that human care, vigilance and foresight reasonably can,...