60 Colo. 500 | Colo. | 1915
Lead Opinion
delivered the opinion of the court.
The plaintiffs in error brought this action for damages resulting from the death of their son, who, it is alleged, was killed by reason of the negligence of the defendant in the operation of one of its railroad trains. The defense pleaded was the contributory negligence of the deceased. At the close of the plaintiffs’ case the court instructed the jury to find for the defendant, and the correctness of this ruling is the sole question here involved. The facts briefly stated are as follows:
Ellsworth avenue is a public highway 60 feet in width, extending east and west thru the southern portion of the City of Denver. Across this Avenue at a point between South Inca street on the east and South Jason street on the west, the defendant operates four railroad tracks-extending in a southeasterly and northwesterly direction. The track farthest east is used for switching purposes only, which is also true of the one farthest west. The other two are main lines of which the one farthest east is used for northbound trains, and the other for southbound trains. The switch
The alleged acts of negligence set forth in the complaint are: the failure to sound the signal bell at the crossing as required by ordinance; propelling the train that caused the death of deceased at a greater rate of speed than permitted by ordinance; failure to cause the whistle or bell upon the locomotive of such train to be sounded or rung, or to give any other signal or warning of the approach of such train at any point within sight or hearing of the crossing.
That the automatic bell was out of order and failed to ring, and that “Uncle Sam” train was traveling at an excessive rate of speed were established by the evidence, and
Indeed, it is elementary that if in a given case it appears that the defendant owed the plaintiff a duty to use due care, that he violated that duty, and that the plaintiff by reason thereof suffered an injury, the plaintiff, nevertheless, can not maintain his cause of action, if his own conduct was not that of a reasonably prudent and careful man, and such conduct contributed in some measure to bring about the injury sustained. Colo. Cent. R. R. Co. v. Holmes, 5 Colo. 197; C. R. I. & P. Ry. Co. v. Crisman, supra; Westerkamp v. C. B. & Q.R.R. Co., 41 Colo. 290, 297, 92 Pac. 687; Liutz v. Denver City Tram. Co., 43 Colo. 58, 95 Pac 600.
As the standard of duty in such cases is dependent upon the particular facts and circumstances of each, the question whether contributory negligence has been proven in a given case, is usually one for the jury. Nevertheless such question, in a particular case, may become one of law and thus
In Denver & Rio Grande R. R. Co. v. Ryan, supra, after considering the duties and responsibilities imposed by law, upon railroad companies, we declared that the law was no less exacting in its requirements of individuals, and expressly approved an instruction therein given which 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 ways for trains.” In support of the rule we therein cited, inter alia, Railroad v. Houston, 95 U. S. 697, 702, 24 L. Ed. 542. Certain language
“ * * * the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employes in these particulars was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place- of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. No railroad company can be held for a failure of experiments of that kind. If one chooses, in such a position, to take risks, he must bear the possible consequences of failure. Upon the facts disclosed by the undisputed evidence in the case we cannot see any ground for a recovery by the plain*508 tiff. Not even a plausible pretext for the verdict can be suggested, unless we wander from the evidence into the region of conjecture and speculation. Under these circumstances, the court would not have erred had it instructed the jury, as requested, to render a verdict for the defendant.”
Should we assume, as suggested in conference, that deceased may have stopped, listened and looked to the southward before Train No. 1 cut off his view, and may have seen the northbound train approaching, and concluded that he had time in which to cross over before such train, moving at the speed allowed by ordinance, reached the crossing, there is, nevertheless, no sensible explanation of his subsequent acts. He neither looked nor listened, or, if so., acted other than recklessly after reaching the space between the south and northbound main lines. While it may be true that he was not, as a matter of law, in duty bound to. stop upon reaching such space, he was, nevertheless, required to look and listen, or act v/ith reasonable prudence, before entering upon and attempting to cross the northbound main track. D. & R. G. R. R. Co. v. Ryan, supra; Hinken v. I. C. Ry. Co., 97 Iowa, 603, 66 N. W. 882; Weyl, et al. v. C. M. & St. P. Ry. Co., 40 Minn. 850, 42 N. W. 24.
Moreover, the duty resting upon deceased to look and listen before advancing upon this track was a legal obligation which he was bound to discharge, unless excused therefrom by some peculiar facts of the case. In other words, it is the imperative duty of one attempting to cross several tracks, not to cease his watchfulness upon crossing the first or second in safety, but to continue to exercise his senses, and be observant of the obvious conditions until the crossing has been accomplished, unless the railroad company, thru its acts, has produced a condition of apparent safety wherein reasonable men might have different views as to the necessity of looking and listening. Diligence, in order
And the facts excusing the performance of this duty must be of such a character as to show not only negligence of the railroad company, but also that its acts were such as to mislead the person injured when crossing its. tracks. Elliott on Railroads, (2d ed.) Vol. 3, §1165. Thus in D. & R. G. R. R. Co. v. Gustafson, 21 Colo. 393, 41 Pac. 505, the negligence of the railroad company was supplemented by the express invitation and direction of the flagman to the traveler to proceed. So in Nichols v. C., B. & Q. R. R. Co., supra, the facts established not only the negligence of the defendant, but also that, by its affirmative acts, the plaintiff was misled. The defendant was in the act of moving one of its
"Assuming in this case that the appellant had the right to presume that no train was approaching, by reason of the failure o.f the flagman to give notice, yet this did not excuse her from the use of her senses of sight and hearing in order to ascertain the fact for herself. With the use of these senses she was as well able to ascertain whether a train was approaching as the flagman at the crossing, and a failure to use them was negligence. It has often been held by this court that negligence on the part of the railroad company does not excuse the injured party from the exercise of care on his part. Bellefontaine R. W. Co. v. Hunter, 33 Ind. 335; St Louis, etc. R. W. Co. v. Mathias, supra; Cincinnati, etc., R. R. Co. v. Butler, 103 Ind. 31; Indiana, etc., R. W. Co. v. Green, supra; Indiana, etc., R. W. Co. v. Hammock, supra; Ohio, etc., R. W. Co. v. Hill, supra; Woodard v. New York, etc., R. R. Co., 106 N. Y. 369, 13 N. E. 424.
The failure of the, flagman at the crossing to notify the appellant of the fact that a train was approaching was, at most, negligence, and did not excuse her from the use of some care on her part to avoid injury.
It is not found that the flagman did anything to induce the appellant to attempt to cross the track. The most that is claimed is that he did not 'notify her that a train was approaching. Had the flagman done anything to induce the appellant to attempt á crossing at the time she was hurt, or anything to throw her off her guard, then the question of negligence would have been a question for the jury.”
And in Elliott on Railroads, (2d ed.) Vol. 3, §1165, the rule is stated as follows:
“In all cases where the right of recovery is based upon*513 negligence the rule supported by authority is, that, in order to recover, the plaintiff must himself exercise care, and is not absolved from this duty, no matter how clear the negligence of the defendant. Where, however, the acts and conduct of the defendant are such as may be justly regarded as willful, the general rule does not apply, nor, we may say in passing, does it fully apply where the defendant is negligent and the negligence is such as to mislead the plaintiff. But the plaintiff cannot be heard to say that he has been misled, unless he has used such care under the circumstances to ascertain the nature of the danger and guard against it, as a man of ordinary prudence would have exercised under similar conditions. It cannot be inferred from the mere fact that a defendant was guilty of negligence that the plaintiff was misled. The fact that there was negligence on the part of the defendant must be supplemented by evidence that there were such acts as would mislead a man of ordinary prudence or the plaintiff cannot successfully assert that he was misled by the defendant. As a railroad track is a warning of danger, one who attempts to cross it must act with care proportionate to the danger, and not suffer his attention to be diverted from the danger before him, and he must keep his faculties in active exercise.”
The same rule is stated and applied in White v. Chicago & N. W. Ry. Co., 102 Wis. 489, 78 N. W. 585, in which the facts were as follows: The gates maintained at a railroad crossing were open, and plaintiff, while walking across the tracks, was struck by a train running at an unlawful rate of speed, which he might have seen and heard if he had looked and listened before attempting to cross, and notwithstanding that he testified that he did look and listen, the court, nevertheless, held, as a matter of law, that he was guilty of contributory negligence. In considering the effect of the open gate as an invitation to cross in safety, the court, on pages 493, 494, 78 N. W. 587, said:
*514 “In a written opinion denying the defendant’s motion for a new trial, the trial judge laid much stress on the case of Rohde v. C. & N. W. R. Co., 86 Wis. 309, wherein it was said: ‘The open gate was an assurance to the public that there was no danger, and an invitation to cross in safety.’ This was said in a case where the gates were not lowered, and plaintiff, relying thereon, drove his team in such proximity to the track that they became frightened by a passing train, and ran away. But suppose, while in a place of safety, plaintiff in that case had seen, or could have seen by the use of ordinary care, that the train was approaching, would any one claim that he might nevertheless continue his way and drive into danger? The paramount duty of the traveler is to use ordinary care, and this obligation is none the less absolute even though the other party is guilty of negligence. It is only when the traveler is lulled into security in reliance upon the negligent act, and is drawn into danger that he could not avoid by the exercise of ordinary care, that the obligation to respond in damages exists. The current of authorities in support of this rúle is well-nigh universal. An extensive discussion and citation of authorities may be found in Elliott, R. R. § 1165, 1166. Thus, in Moore v. K. & W. R. Co., 89 Iowa, 223, it is stated: ‘A traveler upon a highway when approaching a railroad crossing, ought to make a vigilant use of his senses of sight and hearing in order to avoid a collision. This precaution is dictated by common prudence. He should listen for signals, and look in the different directions from which a train may come. If, by neglect of his duty, he suffers injury from a passing train, he cannot recover of the company, although it may itself be chargeable with negligence, or have failed to give the signals required by statute, or be running at the time at a speed exceeding the usual rate.’ It was further said, in substance, that although deceased had the right to act on the presumption that the usual warning signals for*515 crossings would be given, yet he must use ordinary care to avoid danger; and, having had an opportunity to see the train and avoid the danger, no recovery could be had.”
While there are cases that hold that a silent signal bell or an open gate may operate to excuse a traveller from looking and listening for an approaching train, and the question should be submitted to a' jury under proper instructions, the weight of authority and best reasoned cases are to the contrary. It is a matter of common knowledge that electric bells or even gates are liable to be out of order, and common prudence would not permit one to rely solely thereon. Besides, in this case deceased must have known that the electric signal bell was not in order, from the fact that it was not ringing while the southbound train was passing, and deceased was within less than 4’5 feet of the crossing when that train came upon and passed over it. It is said, however, that as the ordinance does not expressly require the signal bell to continue to ring until the rear of the train has cleared the crossing, but only to “begin to ring when the head end of any train moving toward the crossing” is at a distance of not less than 500 feet from such'crossing, we cannot say that deceased should have known that the bell was not in working order. The ordinance cannot be so construed ; its spirit is otherwise. If the construction suggested could be placed thereon it would also follow that the ordinance had been complied.with when the signal bell had commenced to ring at the distance of 500 feet from the crossing as the train approached, and immediately ceased ringing, long prior to the head end of the train reaching such crossing. This would be unreasonable, if not absurd, and equally so would be the construction suggested. While one who approaches a steam railroad crossing has the right to assume that the company will give the usual and required signals of approach, and when he can neither hear nor see any signs of a moving train, to also assume .that the crossing may be made safely, he is not thereby relieved from the duty to use
Decision en banc.
Mr. Justice Hill and Mr. Justice Teller dissent.
Dissenting Opinion
dissenting.
I cannot agree that the court below was justified in directing a verdict for defendant.
As I read the cases determined by this court in which that question was involved, they are directly in conflict with the majority opinion.
In the cases of Denver and Rio Grande Railroad Co. v. Gustafson, 21 Colo. 393, 41 Pac. 505, it appeared that plaintiff stopped some distance from a railroad crossing while a freight train was passing on one of the tracks, that after it passed a flagman stationed there signalled plaintiff to go ahead. Plaintiff testified that thereafter he neither looked nor listened .for approaching trains, but relied solely upon the flagman. This court held that under those circumstances a nonsuit was improper, and said: “We cannot say, as a matter of law, that the defendant in such case may rely solely upon the flagman; neither can we say, as a question of law, that his failure to look or listen was not contributory negligence. It is a question of fact, to be determined by the jury whether or not a plaintiff may rely solely upon the flagman, or whether he is excused from the exercise
This court there cited with approval an Iowa case which held that it was for the jury to determine whether the plaintiff was justified in relying upon the flagman’s signal to cross over.
In Phillips v. Denver Co., 53 Colo. 458, 128 Pac. 460, Ann. Cas. 1914B 29, it is said that, “this court has never held that a plaintiff was guilty of contributory negligence, as a matter of law, when some fact or element was present that tended to lull the plaintiff into a sense of safety, and caused him to perform or fail to perform the act or acts upon which the contributory negligence was sought to be predicated. On the contrary this court has held that in such a; case the question was one for the jury.”
Again, speaking of acts of a railroad company which create an appearance of safety, this court said:
“Such a condition does not relieve the traveler from the exercise of all care, but it is a factor to consider in determining whether or not he exercised that degree of care which, under the circumstances, he should have exercised.” Nichols v. C., B. & Q. R. R. Co., 44 Colo. 501, 98 Pac. 808.
In Williams v. Sleepy Hollow M. Co., 37 Colo. 62, 86 Pac. 337, 7 L. R. A. (N. S.) 1170, we said:
“It is only in the clearest cases that the court should usurp the functions of the jury in determining questions of negligence or contributory negligence.”
In the majority opinion, this court arrived at a conclusion that the deceased must have known that the signal bell was out of order and not ringing. To do this, the court indulges in inferences from the evidence, thereby usurping the functions of the jury.' As to whether or not deceased must have known the condition of the bell, because of certain facts proved, is a question upon which intelligent persons may reach different conclusions. If the matter had been left to the jury, and they had found that he was ignor
The prolonged discussion of the evidence in the majority opinion is sufficient of itself to show that there were matters in evidence from which the jury might have found for either party upon the question of contributory negligence.
The deceased cannot be held conclusively at fault “unless there is no sensible explanation to the contrary reasonably possible.” Stahl v. Railroad Co., 57 Mich. 239, 23 N. W. 795. Several things might have been regarded by the jury as sensible explanations.
In Nichols v. C., B. & Q. R. R. Co., supra, this court called attention to the fact that the plaintiff might have crossed the track in safety had the train been going at the rate allowed by ordinance.
So here, the jury might have found that the deceased was not negligent in crossing the track, when, after seeing the approaching train, there was time for him to do so, had not the train been running at double the speed allowed by the ordinance.
In a Michigan case the plaintiff’s evidence tended to show that, after he was aware of the approach of the train, he had time in which to cross the tracks, had the train been running at its authorized speed, and that because it was running at double the proper speed, he was struck while on the track. A refusal to direct a verdict for defendant was sustained. Railroad Co. v. Van Sleinburg, 17 Mich 120.
The silence of the bell, while not justifying the deceased in a reckless disregard of his safety, was a matter to be
I think the rule laid down in the majority opinion is a radical departure from the well established law of this state, and contrary to the weight of authority in other jurisdictions.
I am authorized to state that Mr. Justice Hill concurs in these views.