14 Colo. App. 504 | Colo. Ct. App. | 1900
The appellant brought this action against the appellee to recover damages for the death of his wife, Amanda Griffith, caused, as it was alleged, by the negligence of the employees of the appellant in running and managing a train of cars upon its railroad track. The answer denied the cliarge of negligence, and averred that the injuries which caused the death of Mrs. Griffith were the consequence of her own fault and carelessness. The answer was denied by the replication. When the plaintiff rested, the defendant asked for a nonsuit. The motion was allowed and judgment entered accordingly. The plaintiff appealed.
Three persons witnessed the accident, and testified to the facts and the attendant circumstances. In all important particulars, their narratives agree, and the evidence as a whole presents us with a very clear idea of the situation. The accident occurred in the city of Denver on Curtis street, at its intersection with Twenty-eighth, on the 27th day of November, 1896. Curtis street and the streets crossing it vary from the cardinal points, but for the purpose of simplifying our statement, we shall regard Curtis street as running due east and west, and the cross streets due north and south. The cross streets are designated by numbers, the numbering being from west to east. The defendant occupied the street with
The plaintiff sought to prove that the train was going at an unusual rate of speed, but the court refused to receive the evidence. The plaintiff also offered an ordinance of the city of Denver, making it the duty of the tramway company to provide every car or train of cars with a gong or bell, and making it the duty of the motorman, when approaching any street crossing, to ring or sound the gong or bell within a distance not exceeding sixty feet from the crossing; and also at any point on the line, when the motorman should have reason to believe that there was danger of the cars colliding with any person, vehicle, animal or obstruction. The defendant objected to the introduction of the ordinance on the ground that it was not pleaded, and the objection was sustained. We can conceive of conditions under which the proposed evidence of unusual speed would be admissible. If a street railway company has a customary rate of motion for its trains, its patrons may, perhaps, act in reliance upon that rate, and damage may be sustained in consequence of its being suddenly and unexpectedly accelerated. And the reason given in support of the objection to the ordinance is not altogether sound. When a cause of action is based upon the violation of an ordinance, the ordinance and also the facts constituting its violation, must be pleaded." But disregard of duties imposed by an ordinance upon a railway company in the management and operation of its cars may subject it to the imputatiou of negligence; and the ordinance, supplemented by other proof, might be competent evidence in a suit against the company for injuries sustained, where the averment is that they were the result of the defendant’s negligent conduct in the management and operation of its cars.
But we do not think that if the ordinance had been introduced and the other evidence admitted, the result would or could have been different. Even if the rulings were erroneous, they were harmless. There was some evidence which tended to show that while the train was proceeding from Twenty-ninth to Twenty-eighth street, the motorman was engaged in conversation with a woman sitting in the motor car, and paying no attention to what was ahead of him. If the question of the defendant’s negligence were the controlling question in the case, we think the evidence, which was admitted, was sufficient to put the defendant upon its proof, and the case should not have been taken from the jury. But, conceding everything that the plaintiff alleges respecting the negligence of the defendant, the catastrophe was the result of Mrs'. Griffith’s own voluntary act, done with full knowledge of the situation. Let us briefly review the facts. Standing upon the south side of the street, she saw the train approaching on the north side. She struck out in the direction of a corner on the other side, diagonally opposite to that on which she stood. It is clear that the train was proceeding very rapidly. Every one who saw it, noted the swiftness of its motion. She saw it, and in seeing it, saw what the others saw. There was nothing hid from her.
There can be no recovery for an injury of which the imprudent or negligent conduct of the person injured is the proximate cause. The well established doctrine relating to contributory negligence is thus stated by the supreme court, in Railroad Co. v. Holmes, 5 Colo. 197. “ * * * The proper question * * * is whether the damage Avas occasioned entirely by the negligence or improper conduct of the- defendant, or whether the plaintiff himself so far contributed to the misfortune by his OAvn negligence or want of ■ ordinary and common care and caution, that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened. In the first- case the plaintiff, would be entitled to recover, in the latter not, as but for his own fault the misfortune would not have happened; mere negligence or want of ordinary care and caution would not, however, disentitle him to recover, unless it were such that, but for that negligence or want of ordinary care and caution, the misfortune could not have happened.”
It was not in crossing the street that the negligence of Mrs. Griffith consisted. To reach the train, she was obliged to cross the portion between herself and the track on which it was traveling, and upon that portion there was nothing to occasion solicitude for her personal safety, but having reached
Ordinarily, the question of negligence is to be determined by the jury. They are the judges of the credibility of witnesses, and of the weight to which testimony is entitled, and if the evidence, in any material particular, is in any degree conflicting, or if, upon the facts and circumstances exhibited, there is room for an honest difference of opinion, the question must be submitted to them. But where the facts are not in dispute, and there can be but one opinion as to their effect, the question is one of law, and it is proper for the court to decide it. Shearman & Redfield on Negligence, §56; R. R. Co. v. Holmes, supra; Behrens v. Railway Co., 5 Colo. 400; Lord v. S. & R. Co., 12 Colo. 390; Mau v. Morse, 3 Colo. App. 359. Whatever is matter of common knowledge and experience, courts are bound to recognize, and where in the light of such knowledge and experience, an act is obviously imprudent, the law determines its effect, and the court declares the law. Gaynor v. O. C. & N. R. Co., 100 Mass. 21. If one suffers injury from throwing himself knowingly and needlessly into the mouth of danger, he receives what he invites, and the law affords him no redress. To step upon a railroad track immediately in front of a rapidly moving train, with knowledge of its approach, is an act concerning the character of which there can be no disagreement, and the responsibility for the consequences is upon the doer. Wharton on Negligence, § 333; Butterfield v. Forrester, 11 East, 60. The court properly held that, as a matter of law, the act of Mrs. Griffith was such contributory
But the plaintiff meets us with another doctrine which is equally well established; this, namely, that there may be a recovery for an injury notwithstanding the contributory negligence of the person injured, if the defendant, with knowledge of the situation, by the exercise of reasonable care and prudence, might have prevented it; and seeks to make the principle applicable here. In order that the party inflicting the injury may be held responsible as against the negligence of the injured party, the latter must be in such position that he is exposed to the injury, and the former must be chargeable with knowledge of his position in time to render an avoidance of the injury feasible. Wharton on Negligence, § 333 ; Rapid Transit Co. v. Dwyer, 20 Colo. 132; Coasting Co. v. Tolson, 139 U. S. 558. If Mrs. Griffith had been upon the track, heedlessly oblivious of danger, or if there had been reason to suppose she was about to place herself in a position of peril, and the motorman, with time to stop his train, had wantonly run her down, the company could not escape liability. Her negligence, however gross, would count for nothing ; it would be. no defense. But the case before us presents no such' situation. When Mrs. Griffith first sought to attract the attention of the motorman, and during all the time she was crossing the street, until she reached the outermost track, she was in no danger; the car could not have hurt her. Nor could the motorman have anticipated that she would put herself in danger. To board the car it was unnecessary to cross that track, and it would occur to any onlooker that her purpose in running was that she might not miss the train, and that when it should stop she might be sufficiently near to board it without subjecting it to undue detention. By waving her handkerchief as a signal to stop, she notified the motorman that she saw the train and was fully aware of its approach. Her running in the same direction with the train was not an indication that she proposed to cross the track ahead of it, but the reverse; if such had been her pur
The facts which would warrant an application of the doctrine, invoked by counsel, of a liability for an injury notwithstanding the negligence of the person injured, did not exist. Mrs. Griffith was guilty of no negligence until she stepped upon the track, and then, avoidance of the collision was impossible. The most subtle reasoning leaves unobscured the controlling fact that Mrs. Griffith, with knowledge of the vicinity of the train, and with a knowledge which is common to high and low, ignorant and learned, that to go upon a railroad track immediately in front of a train in full motion is dangerous, nevertheless undertook the experiment. She was, therefore, herself responsible for the result.
In compliance with the request of counsel for the plaintiff, we have carefully examined each one of the numerous decisions to which they have referred us. For the most part, they are the productions of learned and able men, and our time has not been wasted. They state in varying language and apply to different facts, doctrines which were old when the opinions were written. Respecting the principles they enunciate, there is, so far as our observation extends, no con
From what we have said it will be perceived that we do not look upon these cases as being in point.
The judgment will be affirmed.
Affirmed.