| Colo. | Oct 15, 1887
Lead Opinion
The rulings challenged by the first three assignments of error were correct, and the assignments will not be discussed.
Conceding that the testimony concerning notice to the conductor, and the latter’s remark, should have been received in evidence, and that the court’s action in excluding the same was error, we still think there is not sufficient ground for reversal. Plaintiff was a man of mature years, of sound mind and perfect eyesight. He was in the possession of unimpaired physical activity and strength. His only defect was that of being partially deaf. Of this defect he was aware, though perhaps he did not know its extent. Without inquiry about defendant’s trains, he voluntarily went upon its track, and was walking thereon when the accident occurred. It was in the day-time, and the road-bed for nine hundred feet behind him was in full view. Prior to the accident the whistle was blown six or seven times in short, sharp blasts, excepting the last, which was a prolonged blast. Plaintiff’s own evidence clearly establishes contributory negligence on his part. Therefore, under a well-known legal principle, before he could recover, it became necessary for him to show gross negligence or wantonness on the part of the employees operating the train. Railroad Co. v. Holmes, 5 Colo. 197" court="Colo." date_filed="1880-04-15" href="https://app.midpage.ai/document/colorado-central-r-r-v-holmes-6560963?utm_source=webapp" opinion_id="6560963">5 Colo. 197; Railroad Co. v. Cranmer, 4 Colo. 524" court="Colo." date_filed="1879-04-15" href="https://app.midpage.ai/document/kansas-pacific-ry-co-v-cranmer-6560902?utm_source=webapp" opinion_id="6560902">4 Colo. 524. Aside from the fact of the accident itself, and the testimony offered, but excluded, there is nothing in the
The judgment is affirmed.
Dissenting Opinion
(dissenting). The plaintiff was guilty of negligence, but he was not as reckless as the court seems to suppose. He went upon defendant’s railroad track at Dawson’s switch to walk to Dome Eock, without making inquiries at the former point as to the time of the passage of trains. But the reason assigned for this is that he saw no one there to make inquiries .of. There was no footway or path between the points mentioned, but wherever the ground alongside the railroad track was smooth enough, which was about one-fourth of the whole distance traveled by him, he would leave the track and walk by the side of it. Every time he went upon the track he looked for trains. He knew his hearing was defective, but he did not know the extent of that defect; having previously walked on the same track, and heard the approach of trains,— how recently he was not permitted to state. At this time, however, his hearing was so bad he did not hear the engineer’s whistle, and the consequence was the engine struck and injured him. The foregoing items might be immaterial, in a legal point of view, if the officer in command of the train which run down the plaintiff had not been notified of his defective hearing. In this connection they are material. The complaint charges that the employees of the defendant in charge of the train well knew the plaintiff was walking
Very respectable authorities have held that walking on a railroad track is not negligence peí" se, and that, in case of injury ensuing, the question of negligence as to the act is one proper to go to the jury. Hassenyer v. Railroad Co. 48 Mich. 205" court="Mich." date_filed="1882-04-25" href="https://app.midpage.ai/document/hassenyer-v-michigan-central-railroad-7930679?utm_source=webapp" opinion_id="7930679">48 Mich. 205; 12 N. W. Rep. 155; Johnson v. Railway Co. 56 Wis. 274" court="Wis." date_filed="1882-12-12" href="https://app.midpage.ai/document/johnson-v-chicago--northwestern-railway-co-6603945?utm_source=webapp" opinion_id="6603945">56 Wis. 274; 14 N. W. Rep. 181; Carter v. Railroad Co. 19 S. C. 20; Gothard v. Railroad Co. 67 Ala. 114" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/gothard-v-alabama-great-southern-r-r-6510835?utm_source=webapp" opinion_id="6510835">67 Ala. 114. If this be so in an ordinary case, where the party injured is in possession of all his faculties, the peculiar circumstances of this case, considered in connection with the knowledge possessed by the conductor of the train, would seem to warrant the same legal conclusion.
The trial having been to a jury, the plaintiff was entitled, under the law, to have produced in evidence all facts legally tending to' show lack of ordinary care, recklessness, or wilful negligence on the part of the defendant’s, agents. The refusal of the trial court to admit testimony of this character, offered by the plaintiff, was error,, and. it is my opinion that the judgment of nonsuit was also error. Aside from abandonment of an action or consent of the plaintiff, the Civil Code permits- a nonsuit, on motion of the defendant, only when the plaintiff fails to, prove a sufficient case for the jury. Civil Code, p. 48,. § 147. I do not say that the testimony introduced and offered made out a clear case for recovery in. favor of the plaintiff. Whether he would have been entitled to a..
It is a general rule that contributory negligence on the part of the plaintiff will defeat an action for injuries caused by the negligence of the defendant; but it is a sound and well-established rule of law that contributory negligence is no bar to an action for a wilful injury. Kenyon v. Railroad Co. 5 Hun, 479; Green v. Railway Co. 11 Hun, 333, and cases cited. A technical trespass is held not to deprive the trespasser of his rights to recover damages for an injury which he suffers through the wilful negligence of another. Shear. & R. Neg. § 36; Thomp. Neg. § 1162; Whart. Neg. § 344 et seq.; Isabel v. Railroad Co. 60 Mo. 475" court="Mo." date_filed="1875-05-15" href="https://app.midpage.ai/document/isabel-v-hannibal--st-joseph-railroad-8005063?utm_source=webapp" opinion_id="8005063">60 Mo. 475; Meeks v. Railroad Co. 56 Cal. 519, and cases cited; Railroad Co. v. Miller, 25 Mich. 279; Railroad Co. v. Neubeur, 62 Md. 398. Says the author of Beach on Contributory Negligence, section 18: “When one, after discovering that I have carelessly exposed myself to an injury, neglects to use ordinary care to avoid hurting me, and inflicts the injury upon me as the result of his negligence, there is very little room for a claim that such conduct on his part is not wilful negligence.” The foregoing principles of law appear to have been ignored in the trial of this case. One of the offers of proof made, and rejected by the
It is held that an engineer who sees a man walking upon the track, and is not aware that he is deaf, or insensible of danger from any cause, has a right to presume that he will get off in time to escape injury. But this presumption does not exist in the case of a child of tender years, or of a person known to him to be deaf, or otherwise insensible of danger. His duty in the latter case is to take such precautions as are reasonably necessary to prevent disaster, even to stopping his train. Whai't. Neg. § 389; Railroad Co. v. Miller, 25 Mich. 279. Even a drunken xnaxx is said xiot to be so far beyond the pale of the law that he may be injured with impunity. O'Keefe v. Railroad Co. 32 Iowa, 467" court="Iowa" date_filed="1871-10-21" href="https://app.midpage.ai/document/okeefe-v-chicago-rock-island--pacific-railroad-7095033?utm_source=webapp" opinion_id="7095033">32 Iowa, 467; Whalen v. Railway Co. 60 Mo. 323" court="Mo." date_filed="1875-05-15" href="https://app.midpage.ai/document/whalen-v-st-louis-kansa-city--northern-railway-8005033?utm_source=webapp" opinion_id="8005033">60 Mo. 323. This court said, in Railway Co. v. Ward, 4 Colo. 30" court="Colo." date_filed="1877-12-15" href="https://app.midpage.ai/document/kansas-pacific-railway-co-v-ward-6560800?utm_source=webapp" opinion_id="6560800">4 Colo. 30-34, “ Notwithstanding the company’s exclusive right of the use of its roadway, it is still bouxid to use ordinary care to avoid ixxjury to persons who may
Referring, now, to the circumstances of the case before us, the conductor was the officer, in charge of the train. His reply to the son of the plaintiff, when informed by the latter that his deaf father had started down the track a few minutes in advance of the train, accompanied by the request not to run over him, considered in connection with his conduct- in seating himself in the rear car, without communicating with the engineer, certainly indicated indifference to the fate of the plaintiff. His further remark, made a few minutes later, to the witness Rutherford, on returning with the plaintiff in his mangled condition, “that he had caught that man,” was apparently quite as indifferent and heartless. In view of the conduct and speeches of this officer, and of the fact that the plaintiff was run down by his train when it could have been so quickly slowed up or stopped, the jury might have been warranted, in the absence of other and contrary evidence, in drawing the inference that he failed to take any precautions to avoid the disaster. Presumptions of fact are derived directly from the circumstances of the particular case by reasoning from the common experience of mankind; and this process of ascertaining one fact from the existence of another is said to fall exclusively within the province of the jury. ,1 G-reenl. Ev. §§ 33, M-, 18. The case being left to the jury, it might have rationally inferred from the circumstances mentioned that the injury done the plaintiff was the result- of wilful negligence on the part of the defendant.
Eor the foregoing reasons I am of opinion that the judgment should be reversed and the cause .remanded for a new trial.
Affirmed.