30 Colo. 77 | Colo. | 1902
delivered the opinion of the court.
The cause was docketed as an appeal from the county court of El Paso county. This court has jurisdiction to review the judgment by writ of error, but not on appeal. In such circumstances our statute provides that the appeal shall be dismissed and the cause re-docketed on error. Orders so providing are therefore entered. — Mills ’ Ann. Code, sec. 388 a.
The action was brought by appellee as plaintiff below to recover of the railroad company the sum of $89 on account of the failure by defendant to deliver to the plaintiff a certain hackney cart which defendant received from plaintiff, for the purpose of transporting the same as a common carrier for hire from some point in the east to the city of Colorado Springs. There is no question as to the delivery of the cart by plaintiff to defendant for the purpose designated, and the latter admits that it has never redelivered it to plaintiff. It justifies its failure to do so upon the ground that, through no fault of its own, the cart was destroyed_in a fire which burned its freight depot at Colorado Springs in which the cart was stored. The plaintiff alleges that such fire was caused by the negligence of the defendant company. Upon the issues joined there was a judgment for plaintiff for $85, which the defendant has brought here for review.
Numerous errors are assigned, but the argument
The case was begun before a justice of the peace and afterwards taken to the county court-by appeal, where the judgment here attacked was rendered. There being no pleadings, the issues involved must be determined from an examination of the evidence and the instructions of the court. The plaintiff in his brief charges defendant with negligence in the following particulars: (a) That the railroad company negligently allowed inflammable material to accumulate and remain on its right of way around its freight depot, and that sparks from one of its engines reached this material, and set fire to it, which thence spread to the freight depot, and destroyed the cart, (b) That it operated one of its locomotives, which, because not properly equipped or kept in repair, emitted live sparks in passing the depot, which were allowed thus negligently to escape from the locomotive and start the fire in question, (c) That its freight depot and surrounding platforms were negligently constructed so that waste and inflammable material could and did accumulate under them, (d) That it negligently failed to provide any reasonable or adequate means for extinguishing fires in its freight depot.
And in all of said particulars it was charged that the defendant did not exercise the ordinary care required of it in the circumstances of the particular case, and that such negligence either in whole or in part, was the direct and proximate cause of the injury to the plaintiff.
1. The most important, in fact the pivotal, question in the case grows out of the assignment of the appellant that the verdict is so manifestly against the
One exception is that where the verdict is manifestly against the weight of the evidence, it will be set aside by-the appellate tribunal. We think that the case at bar comes under this recognized exception, as the review of the only evidence which tended to establish negligence on the part of the defendant abundantly shows. The plaintiff produced two witnesses, young girls, aged ten and twelve respectively, who were in their home about 400 feet northeast of defendant’s depot,, in which, plaintiff’s -cart was stored. When the fire began, they were looking out of the window towards the depot. They testified that a few minutes before the fire broke out, locomotive No. 553 passed the freight depot, going in a northerly direction, and one of them testified that it was throwing off a good deal of smoke and she saw sparks of a fiery red color escaping from a small hole about three-quarters of an inch wide in the smokestack. The day was clear and bright, with a strong wind from the southwest, blowing at the rate of about 50 miles an hour. This witness testifies that she did not notice the hole very much at that time, but had noticed it about a week before, when this engine was switching in the yards. There was also testimony by three or
Three witnesses for plaintiff were produced who testified that about two weeks after the fire they made an examination of this engine at the town of Manitou, and there discovered, as they say, the'hole in its smokestack, to the existence of which, and the escape of sparks therefrom on the day of the fire, the two little girls testified. The object of’ this testimony, of course, was to show negligence by the company in failing either properly to equip, or keep in repair, the smokestack of this particular engine, and that it was due to its neglect in this respect that the fire occurred, which resulted in the destruction of plaintiff’s cart. The defendant produced the engineman, the fireman, and the brakeman of the Manitou passenger train, all all of whom testified that locomotive No. 553 was not, on the day of the fire, in use that day, either in the yards at Colorado Springs, or between there and Manitou, but that the locomotive then used was No. 554, a companion engine of the same size, pattern, and general appearance. There was- not a particle of evidence that there was any defect of any kind in locomotive No. 554. Another engineman of the company was then produced, who testified that upon the day of the fire he had charge of engine No. 553, and it was then being used between the City of Denver and Petersburg, a distance of about seventy miles north of Colorado Springs, and was there all the day, part
The question then arises, can the testimony of plaintiff’s witnesses, though positive in its character, being that of persons only casually observing the presence of an engine in the Colorado Springs yard, having no particular object in knowing what number it bore, their attention not being particularly attracted to it, and it being no part of their business to keep any trace of it, be said to be of such weight as materially to detract from the weight, credibility, and sufficiency of the evidence produced by the defendant in that behalf. Not only was the testimony of defendant’s witnesses given by men who were engaged in its employment, and therefore supposed to be better informed
To this conclusion we come without discrediting in the least the good faith of plaintiff’s witnesses, impugning their motives, or questioning their veracity. All reasonable men can readily see how, in the circumstances disclosed by this record, the plaintiff’s witnesses honestly were, as they might very naturally be, mistaken in the supposition that they saw locomotive No. 553; and in reaching our conclusion as judges, and as weighing evidence, and ascertaining motive, we can not lay aside our own judgment and experience as men.
The positive conviction left in our minds, after reading this record, is that locomotive No. 553 was at or near Denver at the time of the fire, and that plaintiff’s witnesses were in error in saying that it was at Colorado Springs. It might be urged, however, that so far as plaintiff’s rights are concerned, it makes no difference whether the sparks which caused the fire escaped from locomotive 554 or 553, and unquestion
Tbe equities of plaintiff’s claim are not opposed to this conclusion. Tbe destruction of bis property by fire probably would not bave occurred bad be promptly called for, and taken, it from defendant’s possession. And while this neglect on bis part does not entirely absolve defendant from liability, and its duty with respect to tbe care of tbe cart became that of a warehouseman only, , still, when we come to consider tbe duty of tbe court in passing on tbe legal right of tbe parties, their own conduct as bearing thereupon is not to be overlooked.
2. For tbe reasons given tbe judgment must be reversed, but in view of another trial it is necessary to notice some other errors assigned.
The instructions in tbe main were unusually fair to both sides. Tbe uncontradicted testimony is that plaintiff’s cart was received by defendant at Colorado Springs on tbe 27th day of September, 1898, and in accordance with tbe custom in such cases, notice of its arrival was at once given by a postal card sent to him through tbe U. S. mail. Tbe fire occurred on tbe first day of October following. Tbe plaintiff did not arrive at Colorado Springs until two days after tbe fire, when, upon going to defendant’s depot, be himself first learned of tbe destruction of bis property. It does not appear that be resided in Colorado Springs, or that any one was there to act for him. He was the consignor himself, and if be did not reside at Colorado Springs, or bave such agent there, be was not entitled to notice. But that is not important here, for it is clear that due notice was given to him, and that be did not, within a reasonable time after tbe receipt, and before tbe destruction of tbe cart, call for tbe same. Tbe shipment consisted of a single item, and it Would bave required but a short time to re
In instruction numbered 6, as given by the court, the question as to whether plaintiff had ample time for the removal of his cart was submitted to the jury to be determined by them as a question of fact. Had an instruction been requested by defendant that plaintiff did have ample time, it would have been the duty of the court to give it. The submission by the court of that question to the jury, however, was at defendant’s request, and therefore it may not .now be heard to complain. In this instruction the court also told the jury that, in determining, what is ample time, it was their duty to take into consideration all the circumstances as they appeared in evidence; but they were not to consider the convenience of the plaintiff in that regard, or the distance that he may have been from the station of the defendant at the time of the arrival of the cart. The defendant now insists that the court committed error in telling the jury to take into consideration all the circumstances appearing in the evidence, for there were no such circumstances- except those which, in the concluding sentence, the court says must not be taken into consideration at all. This criticism is not good. There were other circumstances in proof which the jury were entitled to consider, such as the length of time between the. day of the arrival of the cart and the day when plaintiff called for it, and the fact that notice was at once given to him of its arrival.
In some of the instructions given there appears to be a recognition by the court of a distinction with respect to different degrees of negligence. Possibly this is accounted for by the fact that defendant in some of its requests committed a like error. While defendant is not for that reason in a position to complain, and, in fact, does not complain, of the distinction thus made by the court, we deem it appropriate to say that the doctrine is firmly established in this jurisdiction that degrees of negligence such as slight,
We do not consider meritorious defendant’s objections to the rulings of the trial court in admitting and rejecting evidence.
For the error pointed out, the judgment is reversed, and the cause remanded for a new trial.
Reversed.
Mr. Justice Steele dissents.