287 P. 648 | Colo. | 1930
FRANK Lombardi sued the railway company to recover damages for injuries occasioned by defendant's alleged negligence and obtained a verdict and judgment in the district court which the railway company now seeks to review.
Of the several acts of negligence alleged in the complaint only one need be incorporated herein. It is charged that the plaintiff while in the performance of his duty as section foreman was engaged in moving falling rock and debris from defendant's roadbed; that because of the possibility of additional rock falling at the place where he was working and of the danger incident thereto, he stationed John Quintano, one of defendant's section hands, as a lookout and guard to warn him of falling rock and debris; that while so engaged plaintiff was struck by a falling rock and received a depressed fracture of the skull; that Quintano, in the exercise of reasonable care, should and could have seen the falling rock in time to warn the plaintiff, who thereafter in the exercise of reasonable care could have avoided the accident; that Quintano failed to observe said falling rock and to warn the plaintiff and that the proximate cause of plaintiff's injury was Quintano's said negligence. Defendant denied negligence and alleged contributory negligence and assumption of risk.
The plaintiff testified that on the day in question he was attempting to remove a rock "more than three feet high" from the track; that "we were shooting it with powder. I instructed Quintano to watch for falling rock. The rock we were shooting was about five feet from the portal of the tunnel. I was stooping over the rock, holding the powder, when something struck me on the head and I was gone. I fell down and don't know what happened." John Quintano testified that at the direction of the plaintiff he stood on the side of the track opposite the mountainside to watch for rock; that "I saw the rock *313 that hit Lombardi come down. It came down on top of the hill from the mountainside. I hollered to watch out. He tried to run away but did not have much chance." Eustacio Martinez, another section hand, testified, "I heard John Quintano shout the warning. He said, `Watch out.' I did not see the rock coming. I seen Frank fall down."
It is contended that the court erred in refusing to grant defendant's motion for a directed verdict in its favor for the reason that there was no evidence of negligence and that the plaintiff assumed the risk.
[1] It is urged that the negative evidence of the plaintiff that no warning was given is insufficient to overcome the positive testimony of Quintano corroborated by that of Martinez, that he warned plaintiff of a falling rock. The fact that plaintiff was injured while in a position of probable danger from falling rocks coupled with the cardinal instinct of self-preservation corroborates plaintiff's testimony and leads to the inference that the warning was not given, or if given was not sufficiently loud to have been heard by the plaintiff. The jury, by their verdict, must have taken this view of the case. The testimony being irreconcilably conflicting, the question as to whether or not a warning was given was for the jury.
[2, 3] It is further contended that the plaintiff cannot recover because he assumed the risk and, in this regard, counsel relies upon the case of Chesapeake O. Ry. Co.v. Nixon,
[4] The general rule on the assumption of risk is that "the employee assumes the ordinary risks of his employment; and, when obvious or fully known and appreciated, he assumes the extraordinary risks and those due to negligence of his employer and fellow employees." Delaware,etc., R. R. v. Koske,
The distinction between risks assumed and those not assumed is clearly shown in Seaboard Air Line v. Koennecke,
In the case of Sagara v. Chicago, R. I. P. Ry. Co.,
In the instant case there was no evidence that plaintiff knew that Quintano would be or was being negligent in failing to warn him of falling rocks and he cannot be said to have assumed the risk incident to such negligence.
Finding no reversible error in the record, the judgment must be affirmed.
MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE ADAMS and MR. JUSTICE BUTLER concur. *316