Westerkamp v. Chicago, B. & Q. Ry. Co.

• Decision Date: 04 November 1907
• Citation: 92 P. 687,41 Colo. 290
• Parties: WESTERKAMP v. CHICAGO, B. & Q. RY. CO.
• Court: Colorado Supreme Court

92 P. 687

41 Colo. 290

WESTERKAMP v. CHICAGO, B. & Q. RY. CO.

Supreme Court of Colorado

November 4, 1907

Error to District Court, City and County of Denver; John I Mullins, Judge.

Action by August Westerkamp against the Chicago, Burlington & Quincy Railway Company. From a judgment for defendant, plaintiff brings error. Affirmed.

Plaintiff in error brought an action to recover damages for injuries sustained by a train of defendant in error colliding with a wagon he was driving. The trial court, at the conclusion of the testimony of plaintiff, directed a verdict for the defendant, upon the ground that it established that the contributory negligence of plaintiff was the proximate cause of his injury. Plaintiff brings the case here for review on error. His counsel contend that the testimony establishes that the defendant was negligent, and that plaintiff was not guilty of contributory negligence, or that the latter question should have been submitted to the jury. The testimony bearing on these questions is substantially as follows: About 6 o'clock on the morning of January 2 1902, plaintiff was driving an inclosed milk wagon on Watervleit avenue, in the town of Globeville. The track of defendant crosses this avenue at an acute angle. Watervleit avenue runs north and south, and the track of defendant in a northeasterly and southwesterly direction. This relative position of the avenue and the track gives the space between the track to the north and the east side of the avenue a triangular shape. Plaintiff was driving south, with the intention of crossing the track of defendant. He was familiar with the surroundings, having been engaged in driving a milk wagon over this route for a considerable period previous to his injury, and knew that a train of defendant was due about this time. The morning was dark, cloudy, and foggy. For a distance of about 190 feet from the intersection of the avenue and the track of defendant the triangular space mentioned has a number of cottonwood trees growing upon it about 12, but not so close to each other that at that season of the year they would interfere to any considerable extent with a clear view of the track to the northeast. There was also located upon this space two telephone poles. Something over 500 feet northeast of the intersection of the avenue and track a cottonwood tree was located on defendant's right of way, about 30 feet north of its track. The track is on a fill, about eight feet higher than the adjacent ground. At a distance of about 275 or 300 feet east of the point where the avenue crosses the track the latter crosses a bridge over the Platte river. This bridge is 200 feet in length, so that its east end is from 475 to 500 feet from the crossing in question. On the west side of the avenue, distant 47 feet from the main track, a feed store is located. Between this building and the track is a side track, upon which cars frequently stand, so that an unobstructed view of the track for any distance to the west when cars are on the side track cannot be obtained until after it is passed. From a quarter to half a mile east of the crossing there are switch and other lights, near or over the track. Plaintiff was familiar with these, as he had often observed them before. When plaintiff, according to his own statements, was distant about 190 feet from the track, he commenced looking towards the east for an approaching train, and, when within 50 or 60 feet of the track, stopped his team, opened the door of the wagon looked and listened for a train, but did not see any approaching. He says, to use his own language: 'The point where I stopped was particularly favorable to a view of the track from the north and east directions.' He observed the switch and other lights above referred to, but did not see the headlight of a locomotive drawing a train approaching from the east, although he had often observed such a light on other mornings when driving in the same direction along the avenue. He was driving slowly, and continued to look to the east until he reached a point about 25 feet north of the track, but did not observe a train approaching. From the plat introduced it appears that from this point he had an unobstructed view of the track for an indefinite distance to the east, for there does not appear to be anything from that point to obstruct the view in that direction. When he reached the 25-foot point, he turned his attention to the west, and just as his horses started to cross the track the headlight of a locomotive drawing a train and approaching from the east flashed upon him. He struck his horses with a whip in an endeavor to get across the track ahead of the train, but his wagon was caught and destroyed, and he was severely injured. The train approached the crossing at a speed of from 20 to 30 miles an hour. No bell or whistle was sounded. There was no watchman on duty, and an ordinance of Globeville prohibited trains running at a greater speed than six miles per hour. A witness who was in advance of plaintiff between 100 and 200 feet noticed the train approaching as he crossed the track and estimated that it was then between a quarter and half a mile away. The headlight of the locomotive was burning brightly. Another witness on behalf of plaintiff, who was on the porch of his place of business about 350 feet distant from the crossing, saw the train approaching. When he first saw it, it was 2,500 feet from the crossing. He noticed the headlight of the engine, for that was what attracted his attention, and could see that it was coming rapidly from the east.

Skelton & Morrow, for plaintiff in error.

Wolcott, Vaile & Waterman (W. W. Field and Henry McAllister, Jr., of counsel), for defendant in error.

GABBERT, J. (after stating the facts as above).

Although the evidence establishes negligence on the part of the defendant, plaintiff cannot recover if his failure to exercise that degree of care which a reasonably prudent person would have exercised under similar circumstances was the proximate cause of his injury. C., R.I. & P. Ry. Co. v. Crisman,...