49 Colo. 582 | Colo. | 1911
delivered the opinion of the court:
Action to recover for the value of plaintiff’s cattle killed through the alleged negligence of defendant, by its locomotive and train of cars. Verdict and judgment for plaintiff, from which defendant appeals.
The defendant operates trains'of cars upon railroad tracks extending from Denver to Boulder. The plaintiff resides about four hundred feet south' of a point where the cattle were killed. In front of his house, running north and south, is a wagon road which the railroad crosses at an angle from the south to the north, bearing' a little east. It was on this crossing the cattle were struck and killed by defendant’s train approaching from the south. The train consisted of an engine, seventeen freight cars and a caboose, traveling at the usual rate of speed — sixteen to twenty miles per hour. The railroad track at the point in question was on an embankment rising several feet above the surrounding ground, and the wagon road had a sharp up-grade thereto, beginning about one-half the distance from plaintiff’s house to the railroad track. About a quarter of a mile south of the crossing was a whistling post, where northbound trains approaching the crossing were accustomed to
Plaintiff’s barn and appurtenant yards where he kept his cattle at night, were across the wagon road opposite his house. North of the railroad crossing plaintiff had a pasture, where he kept his cattle during the day. His custom was to take the cattle from the barn yard, along the wagon road, across the railroad tracks to the pasture each morning, and return them to the barn lot in the evening. The accident occurred between seven and eight o ’clock in the morning. The track was straight from the whistling post for a considerable distance beyond the crossing, and between the two points there was nothing to obstruct the view. From a point on the railroad one-eighth of a mile south of the crossing, “one hundred and fifty feet of the wagon road” south from the railroad right-of-way — which was one hundred feet wide — could be plainly seen. No whistle was blown, or alarm given until abou,t a -second before the cattle were struck, and the speed of the train was not slackened. The evidence of the plaintiff tended to establish the foregoing facts, and we will assume that they were fully proven.
According to defendant’s evidence, the regular crossing whistle was given; the engine was equipped with an automatic bell, which had been ringing from the time the train left Denver until the accident .occurred ; the train was slackened in so far as it could be, and stopped at the water tank beyond the crossing; a grove of trees .between plaintiff’s house, extending to within thirty feet of the railroad track, and along it for four or five hundred feet, obscured the view of the wagon road from one approaching the
This is the only evidence introduced by either side to indicate clearly how the cattle had approached, the crossing, how long they were upon it, or in what position they were at any time when the engineer might have avoided the collision. Plaintiff’s witnesses observed nothing until they heard the stock alarm, and, immediately upon looking, saw the cattle struck.
The violation of a statutory duty is not involved. Defendant’s liability depends entirely upon the common law, and the rights of the parties must be measured thereby. In order to maintain the action, it was essential that the proof show that the alleged killing was through the negligence of the defendant in operating the train of cars in question. In this requirement, defendant contends that the proof was' insufficient, thus presenting the question whether the evidence, taken as a whole, authorized the submission of the matter to the jury.
There was no evidence whatsoever upon the subject of position, or movement of the cattle prior to
That there can be no presumption of negligence is elementary. “Its existence must.appear by proof; and until it does so appear, a party whose case is based upon it, is without a cause of action.” — D. & R. G. R. R. Co. v. Robinson, 6 Col. App. 432; D. & R. G. R. R. Co. v. Priest, 9 Col. App. 103, 105.
Plaintiff’s evidence fails to.show that the cattle were in a position of real or apparent danger, at any time, until the moment of the accident. This was insufficient. It was incumbent upon him to show that the cattle were, either in a position of danger or would presently likely so be, and that defendant had notice thereof, or, by the exercise of reasonable dilidence, could have had notice thereof for a sufficient
Plaintiff, however, contends that if his evidence was insufficient to establish his case, such deficiency was supplied by the evidence of defendant. We are unable to agree with his cQntention. On the contrary, defendant’s evidence supports the theory, that the collision was unavoidable. The width of the wagon road, and the conditions on either side thereof, are not disclosed in the record, except as it may be gathered from defendant’s evidence, and the fact that the railroad, as hereinbefore stated, is considerably higher than the surrounding country and the wagon road is on an up-grade thereto. The uncontradicted testimony of the train brakeman was, that the wagon road, as it approaches the railroad track, is on an up-grade, and the cattle were on the other side of the wagon road from the approaching train; that when the alarm signal was given he looked forward and “could just see the tops of the cattle,’’ and not more than four or five short alarms had been given “till these cattle swung around and rushed up on to the crossing.” In St. Louis, etc., R. R. Co. v. Russell, supra; the facts of which are quite similar to those of this case, it is said: “But had the en
Plaintiff asserts that C. & S. Ry. Co. v. Charles, 36 Colo. 221; C. & S. Ry. Co. v. Webb, 36 Colo. 224; and Rio Grande Western R. R. Co. v. Boyd, supra, are similar in facts to the case at bar, and support his contention. An examination of those eases discloses facts entirely different from those in the case at bar. In the Charles case, on page 223, it is said: “Plaintiff’s cow, together with several others, was walking west in the direction of the approaching train, in the middle of the track in a deep cut. ’ ’ And it was therein shown that the engineer, keeping a proper lookout, might have seen the cow on the track when his train was one hundred to one hundred and fifty feet .distant from such animal, and as the train could have been stopped within a distance of about seventy feet, the company was very properly held liable.
In the Webb case, it appears on page 227, that plaintiff’s horse was standing in a lot adjoining, or close to,-defendant’s railroad track — when one of its passenger trains was approaching; that the whistle of the engine frightened the horse, and he at once started toward the track; that “while attempting to cross it or to run down the track, was struck by the engine” and killed. It is further therein stated, that there was evidence to show that after the whistle was sounded, and after the engineer saw, or by the exercise of ordinary diligence might have seen, the horse running towards or down the track, there was ample time to have stopped the train before the horse was struck.
The court instructed the jury that if they believed from the evidence “that the persons in charge of the.engine and train of cars in question, by ordinary care, skill and prudence, could have seen the animals, or that they did see them in season, so that by the use of ordinary care and skill, and without
“It is not the duty of the engineer to stop his train until there is an apparent necessity for it. Ordinarily, the discovery of animals or persons near the road does not require the stopping of the train. That should occur only when it seems to be necessary to avoid collision. Unless appearances reasonably indicate danger of the object going upon the track, an effort to stop is not required.” — Yazoo, etc., R. R. Co. v. Brumfield, 64 Miss. 637, 641; 1 Sn. 905.
Other assigned errors argued, we deem unnecessary to consider. The judgment is, therefore, reversed and the cause remanded for proceedings in accordance with the views herein expressed.
Reversed and remanded.
Chief Justice Campbell and Mr. Justice Bailey concur.