| Colo. | Jan 15, 1891
This action was brought tty appellee, plaintiff below, to recover damages for the death of John Orilly, her husband, while a passenger upon the train run and operated by tbe appellant as receiver of the Denver & Rio Grande Railway Company. The defendant, among other things, pleaded circumstantially that the death of Orilly was caused by his own contributory negligence.
The undisputed facts appear to be that the decedent,
The testimony of Patrick Cleary is that the car which Crilly and he entered to return to Leadville was crowded; that, failing to find a seat, Crilly sat on the back railing of the car, with his feet between two men who sat on the rear seat. Cleary himself was standing up.
The testimony of James Jolly was to the effect that the train left the grounds about seven or eight in the evening, when it was still light. That he climbed on "the car after it was full. That Crilly got on after him, and sat next to him; that they were in their seats about a quarter of an hour before the train started. That Crilly had drunk a few beers during the day. Just after coming around the curve going up grade, there was a jar. That the jar was caused by the quickening of the speed. That he heard shouting and learned that Crilly had fallen. He said he could stand
“ Question. Then you could have stood up there? Answer. By crushing in. Q. By a little inconvenience? A. Yes, sir. Q. Instead of sitting on the end of the car? A. Yes, sir. Q. If you could have done that, Mr. Crilly could have done that also, couldn’t he? A. Yes, sir.”
Peter Jolly testifies that he stood up in the car, and that there was room for more to stand; that the train was running about ten or twelve miles an hour.
Joseph Burns testified that at the time of the accident the train was running smoothly. He did not notice any jolt or jar. The testimony also shows that the car next to the one in which deceased rode was not crowded.
The cause was tried upon the theory that the question of contributory negligence is necessarily one of fact for the jury. In this, we think, there was error. The testimony clearly shows that the deceased was in a place of known danger; that he put himself in this place of danger voluntarily, and, it may be said, recklessly. It. is beyond all contradiction that the occupancy of the place of danger caused or contributed to his death. If he had been standing up or seated inside the box, or if he had, within the time after entering the car and ascertaining its crowded condition, and before the starting of the_ train, sought a position in the next or adjoining car, the lamentable accident would probable not have resulted. It is admitted by the testimony and by the strongest witnesses, and, it might be said, by the most willing witnesses, on the part of the plaintiff, that by a little inconvenience to himself he could have stood up in the car as others did, and thus avoided the accident. There was room for him if there were room for others, and he should have taken a place of safety. He was not an infant nor non compos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter the former could not arise. He took upon himself the right
“ The question of negligence is ordinarily a question of fact, and ought to be submitted, under proper instructions, to the determination of a jury. Where the facts are disputed, where there is any reasonable doubt as to the inference to be drawn from them, or when the measure of duty is ordinary and reasonable care, and the degree varies according to the circumstances, the question cannot, in the nature of the case, be considered by the court; it must be submitted to the jury. But where the facts and inferences therefrom are undisputed, where the precise measure of duty is determinate,— the same under all circumstances,— where a rule of duty in a given exigency may be certified and accurately defined, the question is for the court, and not for the jury.” Dewald v. Railroad Co. (Kan.), 24 Pac. Rep. 1101; Railroad Co. v. Greiner, 28 Amer. & Eng. R. Cas. 397; Lord v. Refining Co., 12 Colo. 390" court="Colo." date_filed="1888-12-15" href="https://app.midpage.ai/document/lord-v-pueblo-smelting--refining-co-6561749?utm_source=webapp" opinion_id="6561749">12 Colo. 390.
In Hogan v. Railway Co., 15 Amer. & Eng. R. Cas. 439, it was held that “ when the facts found lead irresistibly to the conclusion of negligence or the absence of it, the inference of negligence or the absence of it is purely a conclusion of law; but where the facts found may leave the inference of negligence or no negligence in doubt, the question of negligence is for the jury, because other facts not found are necessarily to be considered and determined before the inference can properly be drawn.”
Measuring the testimony of plaintiff’s witnesses as above stated by the rule here announced, the court upon the trial might properly have granted defendant’s motion for a non-suit ; and, as the testimony of the defendant’s witnesses did not improve the plaintiff’s case, the verdict and judgment cannot be sustained. Horn v. Reitler, 15 Colo. 316" court="Colo." date_filed="1890-09-15" href="https://app.midpage.ai/document/horn-v-reitler-6562030?utm_source=webapp" opinion_id="6562030">15 Colo. 316.
There is not in the complaint an averment that in thus providing the box-car for the accommodation of the excursionists the company was negligent or careless. Yoluntarily, as one of those who on that day was engaged in the pursuit of pleasure, the deceased entered this crowded car, and assumed a dangerous position, notwithstanding the fact that the adjoining car had ample room in which he could
The defendant offered in evidence what was conceded to be the testimony given by George H. Andrus before the coroner’s jury at an inquest held on the body of John Crilly when “ the respective counsel in this case were present.” It was conceded, also, that the witness Andrus was examined and cross-examined and that he had since died; but it was not conceded nor proved in whose behalf, in what capacity, nor for what purpose the respective counsel were present at the coroner’s inquest. Hence we cannot say. that plaintiff had had an opportunity to cross-examine the deceased witness; and for this reason, if for no other, the court did not err in rejecting the testimony. 1 Greenl. Ev., § 163 et seq.; 1 Whart. Ev., § III et seq. We think the judgment should be reversed.
Bissell and Reed, CO., concur.
Eor the reasons stated in the foregoing opinion the judgment is reversed.
Reversed.