9 Colo. App. 86 | Colo. Ct. App. | 1897
delivered the opinion of the court.
In the winter of 1892 and 1898, Pilgrim was a Pullman car porter, working on a sleeper attached to a train running between Alamosa and Denver. One day in February the train to which this sleeper was attached reached Antonito and left there on its way for the trip. From Antonito for about forty miles the Rio Grande Railroad follows an up grade through the mountains until it reaches the divide at the top of the range. On that day Cole Lydon, the superintendent of the fourth division of the road, was on the train in the discharge of his duties. Before leaving Antonito he had been advised by some of the operators of a snow storm in the mountains, and he arranged the train for the purpose of making time and to overcome the difficulties which would result from the storm. The way in which the train was made up will be stated, though this is not deemed of very vital consequence. A good deal of stress was laid at the trial on this fact, and it is much discussed in the briefs,- and might possibly have had a good deal of influence with the jury. As we read the case, however, it was not a pivotal question, and it is only referred
The appellee insists that his position on the train as a porter in the Pullman car in the employ of the Pullman company took him out of the class known as “ fellow servants,” and that he may recover his damages even though it should ap-pear the accident was occasioned by the negligence of those engaged in operating the train. It has been decided in this and other jurisdictions (Union Pacific Ry. Co. v. Kelley, 4 Colo. App. 325), that an express messenger who runs on a train looking after the business of the express company under contract between the express company and the railroad is not a fellow servant, and that none of the principles which control actions by fellow servants are operative. The appellee, of course, insists that as a Pullman porter he is brought into the same relations with the Railroad Company and may recover on proof of the happening of an accident like a passenger, who by making this proof thereby casts the burden on the Railroad Company to show care and due caution in the management and operation of their trains. This is probably a debatable question because of the relationship which the porter sustains to the passengers traveling, although the precise point has been adjudicated in favor of the porter in another state. We do not intend to decide this question. It may be conceded for the purposes of this opinion that the por
Some complaint is made of an instruction which the court
Before the case went to the jury, the company asked the court to put an interrogatory with reference to the cause of the derailment of the train and the rolling of the cars down the embankment. We do not understand that the refusal to put a specific interrogatory can be assigned as error. Possibly the court might have put the question and asked a specific answer, and the party could not have complained if the answer had been against him. These matters are so largely in the discretion of the court that a case is never disturbed because of what the court may have done. It would have been a very satisfactory inquiry, and the special finding of the jury thereon would probably have been controlling in determining the question whether the accident came from the negligence of the company or under circumstances which would be an absolute excuse if proven. We confess we should have been very glad if this fact had been directly determined by special verdict. If it had been found with the Railroad Company, it would be a perfect basis on which to rest this decision, which is simply our conclusion on the evidence without any direct knowledge of what the opinion of the jurors may have been regarding this particular fact.
It may seem rather hard to disturb so small a verdict in favor of one who was injured, and if the plaintiff’s ease had been sustained by any testimony Avhich seemed to warrant a recovery we might have found a way to affirm the judgment» Since the record is barren of evidence supporting it, we can
The judgment will be reversed.
Reversed.