21 Colo. App. 229 | Colo. Ct. App. | 1912
Appellee brought suit against the appellant upon four separate alleged causes of action, to re
Probably it should be noticed that, after the cause was transferred into this court, a motion to remand it to the supreme court, under section six of the act creating this court, was filed by the appellant, the stated ground being that the determination of the appeal necessarily involves the construction of provisions of the federal and state constitutions. Examination of the briefs on file indicates that it was at one time the supposition of counsel on both sides that the decision of the case required investigation of the constitutionality of the fence act of
All of the evidence at the trial was produced by plaintiff, the defendant offering no proof. After plaintiff rested his case, a motion was made on behalf of the defendant that the jury be instructed to return a verdict in its favor on all four counts. That motion was denied, and the case was submitted to the jury upon a series of instructions as to the law applicable to the case. Only one of the instructions given by the court is questioned here. The jury returned a verdict for the entire amount claimed under all four causes of action, one hundred and thirty-five dollars. Motion for a new trial was made by the defendant. Upon the hearing of that motion, the court required the plaintiff to remit
The animals were killed near a station on the Kansas division of the Union Pacific railway, known as Deer Trail, fifty-six miles east of Denvér. No witness saw any of the animals struck by a train, and none saw the train by which any of them was killed. The steer and cow mentioned in the first and second causes of action were found lying dead near the railroad track, by section men in the employ of the Union Pacific company, when the men went to their work in the morning. There were some indications leading to the conclusion, in each instance, that the animal was struck by a train during the night before it was found.
No witness saw either of plaintiff’s animals on or near the track, or at any stated time prior to the killing of the same. The evidence tended to show that the railroad tracks and property generally belonged to the Union Pacific company, which also employed the section men, and that the latter com
The steer, which was the subject of the first cause of action, was found on the morning of January 17th, 1902, some twenty or twenty-five feet north of the railroad track, by one of the section men in the employ of the Union Pacific company, named Graff, and lying near by, there were five other cattle, four of them dead and one very badly hurt. The five cattle last mentioned belonged to a Mr. Epler, who was also a witness at the trial. It cannot be determined from the record how near the animals were to each other, when they were found. The most definite statement in that particular was made by the plaintiff, who, after stating that he saw his dead steer, near the railroad, on the morning of January 17th, 1902, further testified:
i£Q. Were there any other cattle there? A. Yes. Q. What cattle? A. Five of Mr. Epler’s. * * * Q. How were they lying when you saw them? A. Well, I think several of them were on the left-hand side of the track; I don’t remember*235 whether there were any on the right-hand side or not. Q. Were they all dead, then? A. I.think one of them showed some signs of life. If I remember rightly, the section men killed him. That was not my steer.”
The section man, Graff, said that the animals were all killed at the same time and by the same train, bnt this was evidently a mere supposition on his part, no facts appearing to support any such conclusion. It was stated by counsel for the plaintiff that the cattle were killed in the .night, and it was impossible to prove the facts by anybody that saw the occurrence — and that statement is probably borne out by the testimony of all witnesses who had anything to say about that particular event. Epler testified, as a witness for the plaintiff, that the defendant’s claim agent had made a settlement with him, in June, 1904, in which he, Epler, was paid two hundred dollars for his cattle killed prior to that time, and in that connection Epler was permitted to testify, against the objections of counsel for the defendant, as follows:
“Q. Now, was this particular accident on the sixteenth of January, 1902, referred to between you and- the agent? -A. Yes, sir. Q. Were they included in the amount paid? A. Tes, sir. Q. And you actually received pay for them? A. Tes, sir. ’ ’
The record does not show that objection was made to the form of the questions, but repeated protests were made against Epler’s entire examination, by the defendant’s objections and motions to strike, on the grounds that the testimony was irrelevant,'
Coming now to tbe evidence produced in support of tbe second cause of action, tbe cow was found by Dennis Spillane, tbe foreman of tbe Union Pacific company for tbe section including tbe station of Deer Trail, on tbe morning of tbe twenty-fifth of August, 1904. According to Spillane’s testimony, tbe cow was found dead about fifty feet east of tbe station. Tbe plaintiff, who saw tbe cow on tbe same morning, stated that she was lying on tbe right-hand side of tbe track, from a hundred to two hundred feet east of tbe freight bouse. In connection with tbe testimony of tbe plaintiff, there was introduced some correspondence between him and tbe superintendent, and tbe claim agent, of tbe defendant, respectively, in tbe year 1904. On November 21st, a letter was written by the plaintiff to defendant’s superintendent, at Colorado Springs, in which tbe former stated: “On October twenty-second I wrote Mr. Kimball about some cattle I bad killed by your trains. On October twenty-sixth be wrote me he bad referred tbe matter to you and that you would advise me. "Will you kindly let me hear from you, and oblige,” etc. Tbe superintendent replied, under date of November twenty-second, as follows (omitting address and signature): “Tour favor of twenty-first instant received, and
“CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO.
Claim Department.
Geo. E. McCanghan, Claims Attorney, Chicago, 111. A. A. Graham, Claim Agent, W. E. Clark, Adjuster, E. J. Smith, Adjuster, Topeka, Kas.
Topeka, Kas., Nov. 23, 1904.
C. B. Rhodes, Esq.,
Deer Trail, Colo.
Dear Sir:
Respecting your claim for cow killed at Deer Trail, August 24th, 1904. I do not think we are liable for this, and the claim must, therefore, be declined.
Yours truly,
A. A. Graham.”
On December 18th, following, the plaintiff sent the letter to defendant’s superintendent, to which allusion has already been made, and wherein he wrote: “Mr. A. A. Graham, your claim agent, informs me your road will not pay for my cow killed August 24th, 1904. The claim department has hitherto refused to pay for my steer killed near Deer Trail, January 16th, 1802, although payment has been made to a man who had cattle killed at same time and by same train. This attitude forces me — and it is not just to compel me to hire an attorney — to bring suit for payment for both animals.” On December 9th, the superintendent wrote
What was said by the court in Fenno v. Westen, 31 Vt. 345, is very much in point in this connection. That action involved an alleged breach of warranty in the sale of a horse. The following is taken from the opinion of the court:
“The plaintiff, on discovering the.unsoundness of the horse, wrote to the defendant several letters, the purport of which was that the plaintiff, having bought the horse of the defendant upon a warranty of soundness, claimed' damages for the breach of warranty.' The defendant replied to the first letter denying that the horse was unsound, and saying nothing as to whether he sold the horse to the plaintiff or Kibbee. To the other letters he made no reply. * * * The omission of a party to reply to statements in a letter about which he has knowledge, and which if not true he would naturally deny, when he replies to other parts of the letter, is evidence tending to show that the statements so made and not denied are true. So where there has been a correspondence between parties in regard to some subject matter, and one of the parties writes a letter to the other making statements in regard to*243 snch subject matter, of which the latter has knowledge, and which he would naturally deny if not true, and he wholly omits to answer such letter, such silence is admissible as evidence tending to show the statements to be true. Still all such evidence is of a lighter character than silence when the same facts are directly stated to the party. Men use the tongue much more readily than the pen. Almost all men will reply to and deny or correct a false statement verbally made to them. It is done on the spot and from the first impulse. But when a letter is received making the same statement, the feeling, which readily prompts the verbal denial, not ■(infrequently cools before the time and opportunity arrive for writing a letter. * * * As the omission to reply to letters may be explained by so many causes not applicable to silence when the parties are in personal conversation, we do not think the -same weight should be attached to it as evidence. Where the party replies to the letter, but says nothing upon points which he would naturally contradict if untrue, * * * the silence furnishes a stronger proof of acquiescence in the alleged facts than the subsequent entire omission to reply.”— Fenno v. Weston, 31 Vt. 345.
In the case of Nichols v. Southern Pac. Co., 23 Ore. 133, which was an action to recover damages for the wrongful ejection of plaintiff from a train in which he was riding as a passenger, it was proved that the defendant’s ticket inspector, in the line of his duty, examined the plaintiff’s ticket, and, after examining it and requiring plaintiff to write his name on the back of it, informed the plaintiff that he was not the original purchaser of the ticket,
The witness Spillane was the owner of the cow mentioned in the third cause of action, and all of the proof with respect to the killing of that animal rests upon his testimony. There were some facts stated by him, from which it might he inferred that his cow was killed, at about half past ten o’clock in the evening, by defendant’s eastbound passenger train. He did not see the train, but he identified
Assuming that there was evidence that the animals mentioned in the second and third causes of action were killed by the trains operated by the defendant, still the plaintiff was not entitled to recover in the action, to any extent, in the absence of any evidence that either accident occurred in consequence of negligence on the part of the defendant. In this connection, it is enough to refer to the repeated rulings of the supreme court in passing upon cases of this general character. For example, it was said in the opinion of the court in C. B. & Q. R. R. Co. v. Church, ibi supra:
“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 Colo. App. 432; D. & R. G. R. R. Co. v. Priest, 9 Colo. App. 103, 105. * * * It was incumbent- upon him (plaintiff) 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
See also D. & R. G. R. R. Co. v. Colter, supra; B. & M. R. R. Co. v. Campbell, 20 Colo. App. 360.
It would be futile, in the present case, to undertake to determine the legal duties and responsibilities of the employes of a railroad company, operating a train upon a railway over the open prairie, with respect to straying stock upon or in the vicinity of the railway, because no specific facts are presented to which the discussion would be pertinent.
. No useful purpose would be accomplished by the consideration of other questions discussed by counsel. By reason of the errors above indicated, in overruling the objections to the testimony of Epler, and in denying the motions for a directed verdict and for a new trial, the judgment is reversed and the cause remanded.
Reversed.