3 Colo. App. 408 | Colo. Ct. App. | 1893
delivered the opinion of the court.
The Denver and Berkley Rapid Transit Company was, on
At the Denver terminus of the railway there was what is termed a “ Y,” with an automatic switch where the first arm of the “ Y ” left the main track, and another switch thrown by hand where this arm joined the other to make the stem of the “ Y.” Beyond this on the stem was a coal house, and between the last switch and the coal house, on the side occupied by plaintiff, was a perpendicular embankment caused by a cut, and which was so close to the track that in places the motor grazed it as it passed. There was evidence that trains were accustomed to stop between the automatic and the hand switch for the purpose of having the switch thrown, so that they could pass upon the stem of the “ Y,” and that
On the evening in question, before the arrival of the train at the stopping place between the switches, the hand switch was thrown by a man stationed there, relieving defendant’s servants on the train from that duty, and rendering it unnecessary for the train to stop for that purpose. There is evidence that occasionally this was done. In the expectation of alighting at this stopping place, plaintiff had arisen from his sitting posture, and was standing on the bar or step with his knees still projecting, his body necessarily somewhat thrown forward on account of the position of the step, and holding on to the iron guard or railing of the platform. The train did not stop, but passed the switch ata considerable rate of speed, and continued until it entered the cut some sixty or seventy feet .further on, and brought plaintiff into violent contact with the embankment, broke his leg and otherwise injured him. At the close of plaintiff’s case, defendant moved the court for a nonsuit on the ground of contributory negligence. The motion was denied.
The question of negligence is a mixed one of law and fact, and where a case is merely one of negligence against negligence, if from the entire evidence it clearly appears that the injured party acted otherwise than as a man of ordinary pru
As the judgment below must be reversed upon other grounds we deem it unnecessary to pass upon the legal effect of the evidence concerning plaintiff’s negligence, or to say, as a matter of law, whether or not his occupancy of the motor platform, with a portion of his person projecting therefrom, or his assuming a standing posture, when the train approached the switch, constituted such negligence.
It is well settled that notwithstanding the plaintiff may be chargeable with negligence, without which he would not have received the injury complained of, yet, if the defendant with knowledge of his exposed situation, did not exercise reasonable care and prudence to avoid the consequences of his negligence, he may nevertheless recover. Whether or not the place between the switches where, as the evidence tends to show, defendant’s trains were accustomed to stop, and passengers to leave, and others enter, was such regular-stopping place that the public and persons riding on the trains had a right to rely upon being able to alight there, was a question exclusively for the jury. But whether such was the fact or not, it was the duty of the engineer in charge of the motor to stop the train before it reached the embankment, if he knew the dangerous position of plaintiff in time to bring the train to a halt, and failing in that the prior negligence, if any, of plaintiff would not excuse him.
In Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 558, the court approved the following instruction given by the court below: “ There is another qualification of this rule of negligence, which it is proper I should mention. Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover, if he him
At the instance of plaintiff, the court instructed the jury as follows : “ The jury are instructed that if they believe from the evidence that the plaintiff was on the platform or steps of the engine with the knowledge of the engineer of said train, and that the servants and employees of the defendant company failed to stop said train at the usual stopping place of the train on said road, if you find that there was such usual stopping place, and that the said train was run into said cut and embankment without stopping at said usual stopping place, then the verdict of the jury must be for the plaintiff and against the defendant, unless the jury-should further find from the evidence that after the said train had passed said usual stopping place, and had failed to stop thereat, the plaintiff could, nevertheless, by the exercise of ordinary care and prudence, such as persons usually exercise under similar circumstances, have avoided the accident and placed himself in a safe position. And if you find from the evidence that there was sufficient time and opportunity after said train had passed its usual stopping place, if you find there was a usual stopping place, without stopping there, for the plaintiff to have, in the exercise of ordinary care and
Reversed.