7 Colo. App. 121 | Colo. Ct. App. | 1895
delivered the opinion of the court.
It is quite impossible to determine from the record whether our conclusion will enforce the fair measure of duty which the master owes to the servant, or permit the company to escape the liability which such obligation would justly impose. The failure to establish what is prerequisite to a recovery in this class of cases must reverse the judgment.
In May, 1891,'the Denver and Rio Grande Company was operating its trains on that portion of the road which extends from Salida to Buena Vista. A few miles from Salida the road, in following the course of the Arkansas river, enters what is known as “Brown’s Canon,” which is characterized, like all other gorges along that river, by rocky and precipitous bluffs,
The general rules which determine the care and responsibilities and rights and privileges as between master and servant are tolerably well understood. There will be no effort to formulate or express this law with an exactitude which
These rules are very simple, and in the present case their application is without the slightest difficulty. To entitle the plaintiff to recover, he was bound to show that the Railroad Company was negligent in providing a safe way. It must be conceded negligence was not established by proof of the accident. The happening of an accident does not establish negligence as against the company and in favor of the employé, whatever the rule may be in actions brought by injured passengers. It was not one of those peculiar accidents concerning which the Railroad Company has special knowledge, and where the burden of proof might be shifted when the evidence once established the occurrence. The continued operation of the railroad for several months after the gauge had been widened fairly demonstrated the use of ordinary care and prudence in its construction and in the
This was a very important matter in its bearing on the question of the negligence of the company. The witness who testified to the depth of the hole was evidently unable to speak with any sort of accuracy about it. He only ex
The motion for a new trial was well based. The judgment should have been set aside and another hearing ordered.
There are some other errors discussed in the briefs of counsel which might necessitate some consideration and argument if the case had not gone off on this fundamental error. They are not likely to occur in the succeeding trial and will be left unnoticed.
The judgment will be set aside and the case reversed and remanded.
Reversed.