| Colo. | Dec 15, 1888
delivered the opinion of the court.
The court having instructed the jury to return a verdict in favor of the defendant, the principal question presented for our determination is the propriety of such instruction under the evidence and circumstances of the case. Upon careful consideration we are of the opinion that the following rules may be generally relied upon in determining whether or not a case should be withdrawn from the jury when the alleged negligence of the defendant, as well as the alleged contributory negligence of the plaintiff, are involved in the issues.
First. If the evidence, in the most favorable light in which it may be reasonably considered in behalf of the
Second. If the evidence, in the most favorable light in which it may be reasonably considered in behalf of the plaintiff, shows that the plaintiff was guilty of negligence which contributed to cause the injury as alleged, and without which the injury would not have happened, then the court may properly nonsuit the plaintiff, or direct a verdict in favor of defendant; but if the evidence be contradictory in any substantial matter on the question of contributory negligence, then such question should be submitted to the jury under proper instructions.
Third. When there is no conflict in the testimony bearing upon the subject either of negligence or contributory negligence, the court may, in a clear case, treat the question as one of law, and grant a nonsuit or direct a verdict; but when the determination of the question depends upon the inference to be drawn from a variety of facts and circumstances, in the consideration of which there is room for a substantial difference of opinion between intelligent and upright men, then the question should be submitted to the jury under appropriate instructions, even though there be no conflict in the testimony.
By the foregoing special rules it will be observed that we do not depart from the doctrine that questions of negligence, as well as contributory negligence, are generally within the province of the jury, which should not
The question of contributory negligence on the part of deceased seems easy of determination. He was in the employ of the defendant; he was familiar with the premises where he was injured; he knew the nature of defendant’s business, and that its employees were, according to their usual custom, at the time and place of the accident, engaged in switching and poling cars; he understood that there was no definite or certain passage-way to be left open at the point where he attempted to cross the tracks of the railroad. Under such circumstances, to at; tempt to pass between cars only twenty inches apart, loaded with his tools and out of sight of the engineer, was a most perilous undertaking; and we must presume that he was aware of the danger when he voluntarily undertook the risk. It was broad daylight, and he was acting under no command or direction of any superior. Even if defendant’s failure to provide a safe passage-way for its employees from one part of the works to another
The declarations of deceased are not admissible in evidence in behalf of plaintiff unless part of the res gestee; but such declarations are competent when offered by defendant, and they affect the plaintiff in a case of this kind in the same way they would have affected deceased if he had lived and brought an action for the same injury. 1 Greenl. Ev. § 189; Waldele v. Railroad Co. 47 Amer. Rep. 41; Cooley, Torts, 264; Shear. & R. Neg. §§ 52, 301, 302, and notes; Lewis v. Phillips, 17 Ind. 108" court="Ind." date_filed="1861-11-29" href="https://app.midpage.ai/document/lewis-v-phillips-7035405?utm_source=webapp" opinion_id="7035405">17 Ind. 108. The judgment of the district court is affirmed.
Affirmed.