Wilson v. Denver, S. P. & P. R. Co.

• Decision Date: 14 December 1883
• Court: Colorado Supreme Court
• Parties: WILSON and another v. DENVER, S. P. & P. R. CO.

2 P. 1

7 Colo. 101

WILSON and another v. DENVER, S. P. & P. R. CO.

Supreme Court of Colorado

December 14, 1883

Error to district court of Arapahoe county.

Brown & Putnam, for plaintiff in error.

Orahood & Teller, for defendants in error.

BECK C.J.

The amended complaint in this case was held insufficient, upon demurrer, in the district court, and the plaintiffs declining to amend further, judgment was given for the defendant, the said railroad company. The complaint charges that the accident which is the ground of the action occurred by reason of the engine on defendant's railroad coming in contact with a log lying across and upon the track of said railroad at or near Deansbury station, whereby the engine was thrown from the track into the river adjacent and the deceased thereby instantly killed. It alleges that the deceased was in the employ of the railroad company as a fireman upon said engine, but at the time of the accident, by request of the engineer, he was running the engine, and was doing so with due care and skill; that the accident occurred while the deceased was in the discharge of his duty, and that it did not occur by reason of any want of skill or care on the part of the engineer in charge of the engine, or of the deceased, but on account of the negligence of the defendant, alleging in this connection 'that said log wason and across said track by reason of the negligence of the defendant.' The complaint then alleges that a fire had been raging for the space of 24 hours immediately preceding the accident, in a dense growth of pine timber on either side of the track, near the scene of the accident; and that several hours before the accident defendant was notified of the fire; and that in consequence thereof trees were liable to fall upon and obstruct the track; but that the defendant neglected to take any precautions to give notice of danger, or to remove obstructions; and that the accident occurred in consequence of said negligence of the defendant and not otherwise.

It is not alleged specifically that the log got upon the track by reason of the fire, and in this particular the complaint is imperfect and liable to criticism. We are of opinion, however, that this defect was not properly reached by the demurrer. A demurrer admits all facts well pleaded, and there are sufficient facts well pleaded in this complaint to constitute a cause of action, and to require an answer from the defendant. The allegations of the employment of the deceased by the defendant; that at the time of the accident he was in the discharge of his duty; that the accident did not occur by reason of negligence or want of care or skill on part of either the engineer in charge of the engine, or of the deceased; but that it did occur in consequence of the negligence of the defendant in failing to keep its track free from obstruction at the point mentioned,--are statements of facts which present an issue. Such issue cannot be met by a demurrer; certainly not by the demurrer filed herein, the grounds of which are substantially as follows:

(1) That deceased was out of the line of his duty as fireman, without the knowledge or consent of the defendant, at the time of the accident.

(2) It is not alleged that any officer or agent of the defendant, whose duty it was to look after the railroad and guard against obstructions, was notified of any danger from falling timber at the place where the accident occurred.

(3) The complaint shows that defendant did not have notice of any danger likely to arise from falling timber.

(4) The complaint does not state facts sufficient to constitute a cause of action.

Courts have held, where negligence has been alleged in general terms, that while the pleading is not for this cause obnoxious to a demurrer, yet if the plaintiff possesses more specific information, he may be required on motion to make his complaint more definite and certain. Filts v. Waldeck, 51 Wis. 569; [S. C. 8 N.W 363;] Hayden v. Anderson, 17 Iowa 162; O. & M. R. Co. v. Callann, 73 Ind. 265; Ry. Co. v. Lavalley, 36 Ohio St. 225. It is a duty which railroad companies owe to their employes to keep the tracks of their railways free from obstructions that would endanger the lives of the latter. This duty is not absolute, but has its limitations, which are clearly stated by Mr. Justice ELBERT in Colorado Cent. R. Co. v. Ogden, 3 Colo. 510. The learned judge says: 'The company must use all reasonable precautions and care to secure the safety of its employes by keeping the roadway in repair. It cannot through want of watchfulness expose them to unreasonable risks in this respect and escape liability, but the duty imposed is that of ordinary care. This ordinary care must be measured by the danger of the service and proportioned to it. Considering the dangerous force which a railway company puts in motion, the term 'ordinary care towar...