58 Colo. 236 | Colo. | 1914
delivered the opinion of the court:
The plaintiff was an employe of the Denver & Rio Grande Railroad Company, and working as one - of a gang of trackmen upon the tracks of said company, about one mile, north of a station named Pinyon, between the cities of Colorado Springs and Pueblo.
The defendant, The Chicago, Rock Island and Pacific Railway Company operates its trains between the said cities oyer the tracks of the Denver & Rio Grande Company. The train that caused the injuries complained of, was proceeding from Colorado Springs in a southerly direction toward Pueblo. The plaintiff was at the south end of the squad of men, working on the tracic The line of men extended a distance of about three hundred feet, the plaintiff being at the extreme south end of this line. The engine of the train struck the plaintiff, causing severe injuries, including the crushing of one of his legs so that amputation became necessary. At the close of plaintiff’s testimony, the court directed a verdict for the defendant, company. Upon this ruling the case is before us for review. The grounds upon which the motion for a directed verdict was based, were: that no negligence whatever appears upon the part of the defendant; that the testimony shows the plaintiff to
It appears that the train had slowed down as it approached the trackmen, and when at a point about one hundred feet north of the foreman, who stood at the north end of the line of workmen, the latter gave the engineer a signal to proceed. At the time the engine struck the plaintiff, the train was moving at a speed of about five miles per hour. The plaintiff was at the time of the accident facing the south with his back to the approaching train, engaged in spacing and adjusting ties, in a stooped position, working with a shovel, and standing between the rails. A fellow-workman who was also injured, was working with plaintiff and engaged in spiking the rails to the ties as these were adjusted by the plaintiff.
The testimony shows this work occasioned some noise, and also, that there was at the time a fast moving train passing upon the track of another railroad, about two .hundred feet distant, and moving in an opposite direction to that of the train in question.
The plaintiff testifies that he was not aware that the train was approaching prior to the injury; that no bell was rung, nor whistle blown, nor other warning of its approach. The train was moving on a down grade of about one-half of one per cent, and consisted of an engine, eight freight cars and caboose. A locomotive engineer who had run over the track for many years testified that such a train, at the rate of speed given, running in that direction and at that point, could have been stopped from within twenty-five to thirty feet. It appears that the train did proceed about two hundred and fifty feet after striking the plaintiff.
One of the workmen, an interpreter, testified that
The plaintiff says that he has worked in the same capacity for some time, knew that trains were likely to pass and also, that it was the rule and custom for engineers to blow the whistle and ring the bell on approaching the workmen, and that it was his rule to look for approaching trains at intervals of from one to ten minutes. The court however, struck out the testimony as to the custom of engineers, on the theory that the plaintiff was not an employe of defendant company.
There appears to be a plain view of the track for at least a mile north of the point where plaintiff was injured, and two of the witnesses say they saw the train at a point several hundred feet north of where the men were working, but these witnesses were not nearer plaintiff than one hundred and fifty feet, and to the north of him.
The court refused to permit witnesses other than the plaintiff, to testify that the whistle was not blown or the bell rung, before the accident, but suggested that such testimony would be proper if it could be shown that the warning was given before the foreman signalled the engineer.
Just why such distinction should be made is not clear, and particularly in a case where no warning was given at all. If it was the duty of the engineer to give warning at all it was his duty to do so at any point within reasonable time. A witness named Ono testified that he was about one hundred and fifty feet north of plaintiff, and that when the engine came within about 150 feet of him, the engineer turned around and looked the other way, and was still looking backward when tlie engine passed him.
“It is the manifest duty of a railway company to provide that, when a train approaches a group of track repairers engaged in their work, it shall signal them to the end that they may get out of the way. The reason is plain to judges who are desirous of justice and right. A squad of railway laborers will not be able, while attending closely to their duties, to keep a strict lookout for approaching trains; but absorbed in the performance of those duties, bent down, watching the track, shoveling gravel or driving spikes a rapidly moving train may come upon them without their being* aware of its presence in time to step aside for it to pass. On the other hand,
This doctrine seems not only to be sound, but is well sustained by the authorities. Under the state of facts presented the court cannot say as a matter of law, that the plaintiff was guilty of contributory negligence.
Without doubt; it was- the duty of the plaintiff to have kept such lookout for the approach of trains as is consistent with the duty of a prudent man similarly situated.
The plaintiff testifies that he looked for approaching trains at intervals of from one to ten minutes. Whether this, under all the circumstances was sufficient or whether it constituted negligence, was a question of fact for the jury, and not a conclusion of law for the court.
It was held in Smith v. Southern Pacific Co., 58 Ore. 22, 113 Pac. 41, Ann. Cas. 1913 A, 434 that where a railroad trackman is working on a track which is being used for the passage of trains, it cannot be determined as a matter of law how often he is required to look in order to fulfill the duty of ordinary care; that being a question for the jury.
It was further said in that case, that where a railroad trackman was engaged in repairing the track under such circumstances as would justify him in assuming that ordinary care would be observed to warn him of approaching danger, he was only required to exercise such care and vigilance in discovering the peril and avoiding the injury as was consistent with the performance of
The decree of care to be observed by a trackman in snch cases must be determined by the facts and circumstances of the particular case. As for instance, if working in the yards of a railroad company where switch engines are constantly moving over the tracks, then the workman would necessarily be held'to a stricter degree of care, than if working along a line of track over which trains pass only occasionally. The question of contributory negligence in this case was clearly for the jury, under proper instructions.
But if contributory negligence in this case should be conceded, then under the testimony, the question of the last clear chance is entitled to consideration and determination by the jury.
The engineer received the signal of permission to pass over the track then being repaired, when about four hundred feet from the plaintiff. It was in the day time. There was a clear view of the track and all the workmen upon and about it at the time. There appears to be no time after receiving the signal, that the engineer could not by the exercise of reasonable care, have seen the plaintiff in his perilous position, to have stopped his train at any time within twenty-five to thirty feet, but that he did not stop it until it had proceeded two hundred and fifty feet after striking the plaintiff, tends to confirm the testimony of the witness that the engineer was looking backward at least a part of the time, and also, to justify the inference that he did not see the plaintiff until after the accident, all of which, if true,
Counsel for defendant attack vigorously, the doctrine of the last clear chance, as announced by this court in the case of The Denver & Rio Grande Company v. Buffehr, 30 Colo. 27, this doctrine has been repeatedly reaffirmed and reiterated by this court, the last reported case upon that subject being that of Catlett v. Colorado Southern Co., 56 Colo. 463, 139 Pac. 14. This rule is reasonable and humane and is so well settled in this jurisdiction that we must decline to further consider it.
The contention of defendant in error, that facts are not sufficiently pleaded to entitle the plaintiff to recover under this rule, is not justified by an examination of the pleadings.
The judgment is reversed and the case remanded.
Mussel, C. J. and Gabbert, J., concur.