50 Colo. 191 | Colo. | 1911
delivered the opinion of the court:
This appeal is from a judgment for $3,050 entered in favor of the plaintiff below, upon the verdict of a jury. Fifty dollars thereof was for furniture, and the balance for the death of plaintiff ’s son, who was injured at a railway crossing on Sixth street in Loveland. Several tracks ran north and south across the street. The first, on the east side, was called the house track, and the second, the main track. Over all the tracks, and along the middle line of Sixth street, there was a plank crossing wide enough to accommodate vehicles. Sixth street ran east and west and was a much used thoroughfare. A short time before the accident a freight train of ten cars pulled into the yard, from the north. It was cut'for the purpose of leaving1 a ear and gathering up others. Three cars with a caboose at the rear were left standing on the main track, and, according to the testimony of plaintiff’s witnesses, the rear end of the'caboose was on Sixth street, and from four to ten feet south of the plank crossing, and had been standing there for from fifteen minutes to half an hour before the accident. In the course of operations in the yard, seven other cars were kicked back toward the three cars. The conductor thought that these seven cars were coupled to the three cars; at least they did not remain separate far enough for him to tell, from where he was forward, that they were not coupled. The ten cars and caboose extended about four hundred feet south from Sixth street, and such was the situation at
The first alleged error argued in the appellant’s brief relates,to the giving of instructions. In the first instruction, the court said that any negligence or carelessness of the driver of the vehicle was in law imputed to the plaintiff, and that if the jury believed from the evidence that the plaintiff himself, or the deceased, or the driver, or all or any of them failed to exercise ordinary care and prudence t» avoid the collision, and that the lack of such care and caution on the part of the plaintiff, or the deceased, or the driver, contributed directly to the causing of the accident,then their verdict must be for the defendant, even though they believed from the evidence that the defendant was negligent. In Instruction No. 2, the jury were told, that before they could find a verdict
When plaintiff rested, the defendant moved that the jury be instructed to return a verdict for it, for the reason, among others, that it appeared from plaintiff’s own testimony that as a matter of law there was such contributory negligence as to prevent a recovery — contributory negligence having been set up as a defense in the answer. An instruction was asked to require the return of a verdict for defendant, and the defendant is now here urging that the court committed error in denying these requests, and asks that it be held, as a matter of law, that there was such contributory negligence as will prevent a recovery by plaintiff. The defendant asks for the application of the doctrine that it is the duty of those about to go upon a railroad crossing to- stop, look, and listen, for approaching trains, and that if they fail to do so, and in consequence are injured, they are, as a matter of law, guilty of such contributory negligence as will prevent a recovery. We do- not wish to relax or modify, in the least, the rule in this respect as already announced and applied by this court in several cases. The safety of the public itself, as well as a proper operation of a railroad, requires that what has been said by this court b.e adhered to and applied under similar circumstances. In this case, as in all others of a like kind, it was the duty of the company to use due care and caution to prevent an injury to a traveler upon Sixth street, and it was equally the duty of the traveler to use due care and caution to prevent being injured by the company. Whether due care and caution has been employed, depends' upon the circumstances of the case. — D. & R. G. R. R. Co. v. Gustafson, 21 Colo. 393 at 396; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408 at 417.
If the injury complained of had been caused by
In this case, according to the evidence on behalf of plaintiff, the caboose that had been standing for from fifteen minutes to- half an hour in a public street at the end of a string of cars, far enough away from a plank crossing to afford ample opportunity for vehicles to pass over, was suddenly pushed backward against the dray without any warning or signal that it was abQut to be moved. It is obvious that such circumstances are sufficient to sustain a finding of negligence on the'part of defendant. — Smith v.
• Notwithstanding the negligence of defendant, the plaintiff ought not recover if there was a failure to observe that reasonable care due from one approaching the crossing, and such failure contributed proximately to the injury. ' The measure of care to be employed by a traveler is described as ‘ ‘ due care. ’ ’ —C. & S. Ry. Co. v. Sonne, 34 Colo. 206. The same thing is often expressed as “ordinary care,” “reasonable care.” — 2 Thompson Negligence, sec 1609. In Grand Trunk Ry. Co. v. Ives, supra, it is said:
“There is no fixed standard in the law by which a' court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prui dent, and what shall constitute ordinary care, under any and all circumstances. The terms “ordinary care,” “reasonable prudence,” and such like terms, as applied to- the conduct and affairs of men, have a relative significance, and' cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular ca.se, and then say whether the conduct of the parties in that case was such as would be expected- of reasonable, purdent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question -of negligence is ever considered as one of law for the court. ’ ’
The care to be exercised increases with the dan
“Although a railroad company may be guilty of negligence in suddenly moving cars without warning which it has left at a crossing, with a space between them inviting people to pass through, yet there can be no recovery for mere negligence in this respect if the injured party is guilty of contributory negligence. In such cases questions of negligence on the part of the company and that of contributory negligence on the part of the person injured are usually questions of fact for the jury to determine under all the circumstances.”
Viewing the circumstances, as they existed at the crossing, in the light of the foregoing authorities, it cannot be said, as a matter of law, that there was that lack of due or reasonable care contributing proximately to the accident as will preclude a recovery by the plaintiff, and it follows that no error was committed against the defendant by submitting the question to the jury.
The driver of the dray had died after the accident and before the trial. In the course of the examination of one of plaintiff’s witnesses, he testified
In most of the negligence cases cited by defendant, wherein the question of the admission of such evidence was discussed, the question arose upon the alleged error of the court in rejecting such testimony, and the different courts held that it was not error to reject it. In the case of Morris v. The Town of East Haven, 41 Conn. 252, cited by defendant, two persons were riding in a wagon, and while they were approaching a bridge the horse backed over an embankment where there was no railing and the occupants were drowned in the river. The only evidence admitted to prove the care exercised by the driver was the testimony of several witnesses who had seen him drive horses on other occasions, and who, upon their knowledge thus obtained, testified that he was a careful and prudent driver. What the driver did was not before the jury as in this case, and the court properly held that the admission of the testimony was reversible error. In the case of Thompson v. Bowie, 4 Wall. 465, also cited by defendant on an issue as to whether certain promissory notes dated on a particular day, were given for money lost at play, and therefore void, it was properly held reversible error to prove that the party giving them was intoxicated on the day of the date of the notes in suit, and that when intoxicated he had a propensity to- gamble. There was no direct evidence that he did gamble, or what he did. If the question had been whether what he admittedly did was gambling, the fact:that the man gambled ■ when intoxicated would be properly excluded upon objection, but if admitted over objection, it could not reasonably be held prejudicial.
The last error argued in the brief of the defendant relates to what was said by the attorney for the plaintiff in his address to. the jury. In the brief of the plaintiff, it is claimed that what was said was
Upon a review of the whole record, prejudicial error has not been discovered, and the judgment is, therefore, affirmed.
Affirmed.
Chiee Justice Campbell and Mr. Justice Bailey concur.