17 Colo. 98 | Colo. | 1891
delivered the opinion of the court.
The assignments of error sought to be maintained on this appeal relate mainly to the instructions given, refused and modified. Of these in the reverse order.
The evidence tended to show that Ryan was attempting to cross the public highway diagonally at the intersection of Sixth and Larimer streets at the time he was struck by the engine ; so he might have been warned and protected if the, bell had been rung, or if the flagman had been present, as the ordinances provide. It was properly left to the jury to determine from the evidence whether the locomotive bell was or was not rung, also, whether the flagman was or was not present at or immediately before the happening of the accident. So, too, the jury were correctly charged that if they were satisfied from the evidence that the defendant company had failed to comply with said ordinances or either of them at the time of the accident that' such failure was negligence on the part of the defendant. But it was not in any manner indicated by the charge of the court that such negligence if found to exist was conclusive of the defendant’s liability in the action. Proof of such negligence would not suffice to make the defendant liable unless it was also shown
While the law is thus stringent in imposing duties and responsibilities upon railroad companies, it is not less exacting in its requirements of individuals, or natural persons. The learned judge who presided at the trial very properly charged the jury that, “ as a matter of law it is negligence and carelessness for a person to go, stand, or be upon the track of a railroad without keeping watch both waj^s for trains ; ” and further, that it was the duty of Ryan in going upon the track of the defendant company “ to look and listen for the approach of trains and observe the surroundings,” and that if he failed so to do, it was negligence on his part. Holmes v. Colo. Cent. R. R. Co., 5 Colo. 197, 516; Fletcher v. Fitchburg R. R., 149 Mass. 132; Railroad Company v. Houston, 93 U. S. 702; Aiken v. Penn. R. R. Co., 130 Pa. St. 380; Kennedy v. D. I. P. & P. Ry. Co., 10 Colo. 495.
2. The- defendant’s counsel requested the court to instruct the jury to the effect, that the burden of proof devolved upon the plaintiff to show affirmatively that the killing of Ryan was caused by the negligence of the defendant, and, also, that the burden of proof was upon plaintiff to show affirmatively that the accident which caused Ryan’s- death was not the result of contributory negligence or want of reasonable care and caution on his part; and that if plaintiff failed to thus prove either of said facts the jury must find for defendant. The refusal of the court to give such instruction is assigned for error.
Upon the first proposition embraced in the instructions
To our minds it seems plain, that there is no essential difference between the negligence of a defendant which may render him liable in an action of this kind, and the contributory negligence of a plaintiff which may relieve from such liability. The very phrase, contributory negligence, implies that the latter is of the same intrinsic nature, and contributes to cause the same effect as the former. In the absence of evidence direct or circumstantial the law never presumes any party to have been guilty of negligence. On the contrary, it presumes every one to have been diligent, or free from negligence, until negligence is affirmatively shown. This presumption of diligence, or of freedom from negligence, attends both plaintiff and defendant. Hence, to warrant a verdict against the defendant on the ground of his negligence, the law requires that his negligence shall be affirmatively shown by a preponderance of the evidence; and in like manner, to warrant a verdict against the plaintiff on the ground of his contributory negligence the law requires that his contributory negligence shall be affirmatively shown by a preponderance of the evidence. On the one side the negligence of the defendant is relied on as the gist of the action; on the other side the contributory negligence of the plaintiff is relied on as the gist of the defense.
It is true, the complaint in an action for negligence usually pontains the averment that the plaintiff,■ without any fault or
It sometimes happens that evidence tending to show contributory negligence on the part of plaintiff may be elicited from his own witnesses when giving their testimony in chief. In such case, unless such evidence be contradicted, or rebutted by counter evidence .tending to show plaintiff’s diligence, or freedom from negligence, he should, of course, suffer defeat, either by nonsuit, or by the verdict of the jury. But this does not affect the correctness of the rule, that contributory negligence, the same as any other negligence, is a matter to be proved, and that' in the absence of evidence it is not to be presumed. Hence, where a defendant relies upon the contributory negligence of the plaintiff as a defense, whether the averment in-respect thereto appear negatively in the complaint or affirmatively in the answer, such contributory negligence must be shown by a preponderance of the evidence or the defense will be unavailing. In general, from whatever source evidences of negligence or of contributory negligence may come, they are to be considered and weighed together, and the same quantum of proof will be
■ 3. From the record it appears that no exception, objection, or suggestion of error of any kind, was made at the trial in respect to the instructions given. We need not, therefore, consider the assignments of error based thereon. We are aware that the Code, section 387, dispenses with the necessity of taking exceptions to the giving, refusing, or modifying instructions. The mere formal reservation of an exception by the defeated party was doubtless considered unimportant and liable to be omitted through inadvertence, and so was dispensed with. But the statute does not do away with the reason or necessity for making objections in some appropriate way to instructions in such time and manner as to-give the trial court an opportunity to correct the same if found erroneous. Any judge in the hurry of a nisi prius trial is liable to err unless aided by the vigilance of counsel. From time immemorial it has been a well recognized and most salutary rule of the common law, that if counsel neglect to object or to point out errors occurring at the trial in such time and manner as will give opportunity for their correction, they will not, in general, be heard to complain of such enws in a court of review. This rule is so reasonable and so essential to the administration of justice that we cannot believe it could have been the intent of the legislature to overthrow it altogether. Any other rule would enable a part}'- to sit silently by, knowing some error had been committed against his interest of which perhaps no other person was aware at the time, and thus take the chances of a verdict in his favor, while having the sure means of setting aside the verdict if ;it happened to be against him. The law in this jurisdiction never has permitted, and itis to be hoped that it never will permit such experiments with judicial proceedings. There will
Where instructions are prayed and either refused or modified the foregoing observations are not so clearly applicable. It is gratifying in the present case, that the instructions given seem to be full and complete and in all substantial respects fair toward the defeated party. The record clearly shows that the instruction concerning the measure of damages was given at defendant’s request. This furnishes an additional reason why the assignment of error based thereon cannot be considered. In view of the amount of the verdict the instruction, even if erroneous, which we do not intimate, could not well be considered prejudicial to defendant. A careful examination of the record discloses no substantial or' reversible error. The evidence being conflicting upon the material matters in controversy, this court cannot properly disturb the verdict. The judgment, therefore, must be affirmed.
Affirmed.