26 Colo. 17 | Colo. | 1899
delivered the opinion of the court.
.Counsel for appellant assign as error the. giving and refusal of instructions ; admitting evidence regarding the custom of carrying a red light in the cupola; submitting the special interrogatories, because leading and not based upon the evidence.
The propositions raised by appellant on the errors assigned, except that relating to the leading character of the special interrogatories submitted, are dependent for solution upon what the evidence tends to establish, or does establish, on these questions: First, what was the proximate cause of the accident ? Second, was this cause the negligence of appellant ? There is also presented these legal propositions : Did the negligence of the employees of the freight train, in leaving the switch open, and giving the affirmative signal that
Proximate cause is defined as “ that cause which, in natural and continued sequence, unbroken by any efficient intervening cause, produced the result complained of, and without which that result would not have occurred.” Lutz v. A. & P. R. Co., 53 Am. & Eng. R. R. Cases, 478; 16 Am. & Eng. Ency. of Law, 436; or “ that cause which immediately precedes and directly produces an effect, as distinguished from a remote, mediate, or predisposing cause.” B. & M. R. Co. v. Budin, 6 Colo. App. 275.
It is the duty of an employer to make reasonable efforts to keep machinery and appliances used by. his employees in suitable ■ condition for use. This is one of the duties which he is bound to perform, and cannot be delegated, so as to exonerate him from liability to an employee who is injured by the negligence of a coemployee charged with the performance of such duty, in failing to do so ; for the employee so charged is the representative of the employer, and not a co-servant with the one who sustains an injury by the negligent performance of such duty, and the act or omission of the
If the negligence of the master is the proximate cause of an injury to an employee, he is not relieved from responsibility, because the negligence of a coemployee contributed to such injury. McKinney on Fellow Servant, § 31; Grand Trunk R. Co. v. Cummings, 106 U. S. 700; Town v. Mich. C. R. Co., 47 N. W. Rep. 665; Cone v. Del., L. & W. R. Co., 81 N. Y. 206; Cayzer v. Taylor, 10 Gray, 274; Thompson on Negligence, note 10, p. 981.
The engine upon which deceased was employed was derailed by the open switch, which was left in that condition by the neglect of the employees on the freight train. The affirmative signal given by the fireman on the engine of the freight, that the track was clear, was also negligence; but all these acts were those of coemployees of deceased, and, as held in the previous decision of the case by this court, for such negligence the company is not responsible, and it therefore becomes necessary to inquire whether or not the evidence discloses any negligence on the part of appellant which directly contributed to the result which followed the negligent acts of the employees of the freight train. The claim of appellee is that the absence of the cupola light was due to the negligence of appellant, and that its presence would have prevented the accident.
The rules require that two or more red lights shall be carried on the rear of each freight train after sunset; that when a freight is sidetracked for the purpose of allowing another to pass on the main track, these lights must be turned or removed, and green displayed toward the expected train as soon as the track is clear, i. e., the switch reset. In order to comply with this rule as a signal to a train approaching from the rear, the tail lights would be turned so as to display
It is contended by appellant that the rules do not provide , for a red light in the cupola of a caboose. Literally this is true; nor do they designate' where any of the red lights on
It is claimed that the instruction requested by appellant, to the effect that if there were other lights or lanterns in the caboose, which might have been used in place of the cupola light while it was being repaired, then the defendant cannot be held liable in this action, should have been given. Had there been a lamp in the caboose which could have been used in the place provided for the cupola light, possibly this
Had it not been for the open switch no accident would have occurred to the engine of the passenger train on account of the absence of the red light from the cupola of the caboose; but if the light had been present, the jury found the accident could not have happened, so that the absence of this light was the prime factor in causing the engine to be derailed; and because the employees of the freight were guilty of acts of negligence, which contributed to the accident, the appellant is not relieved from the result of its own, where, as in this case, notwithstanding the negligence of the freight crew, no accident would have occurred had it not been also guilty of negligence upon its part.
The only remaining question to consider is that based upon the exception of appellant to the special interrogatories propounded to the jury, the objection being' that they were so framed and worded as to indicate to them just what answer was required. Special questions submitted to a jury should be carefully drawn, and call- for a direct answer, and although they might be leading if propounded to a witness, that is not an objectionable feature when propounded to a jury, for they are disinterested, and would not be controlled in their answer for the same reason that a witness might, if asked a leading question. Besides, the questions propounded here relate to the very issues upon which the case turned, and called for an answer, either yes or no; and that they were so framed that none other could be given is not objectionable, nor do we think that either of these questions were so worded that they indicated that a certain answer was desired.
Affirmed.