8 Colo. 79 | Colo. | 1884
The law governing the liability of stagecoach proprietors as common carriers of passengers is quite well settled by juridical decisions of the highest courts.
The law imposes upon such carriers the duty of providing roadworthy vehicles suitable for the transportation of passengers, steady and manageable horses, with strong and proper harness, and careful drivers of reasonable skill and good habits. Although their undertaking is not one absolutely to convey safely — that is to say, while they do not warrant the safety of passengers at all events, yet their undertaking and liability go to this extent, that their means of transportation are suitable and sufficient, that they and their agents possess competent skill, and that they will use all due care and diligence in the performance of their duty.
Respecting the measure of this care and diligence, considering that such carriage is charged with the lives, limbs and health of human beings, it has been held that passenger carriers bind themselves to carry safely those whom they take into their coaches, “as far as human care and foresight will go — that is, for the utmost care and diligence of very cautious persons.” Some cases even hold that such carriers are responsible “for any, even the slightest, neglect.” This doctrine is laid down by the su
On the other hand, it is the duty of passengers to comply with the reasonable regulations of the carrier, and to exercise proper care and diligence in avoiding injury to themselves, for the rule that one cannot recover for an injuiy which has been caused by his own negligence, or where by his own fault he has so far contributed thereto that but for such fault on his part the injury would not have happened, is applicable to this class of passengers.
The appellee Frazier was a passenger in one of the stagecoaches of appellants, running at that time between Cañón City and Leadville, and by the upsetting of the vehicle his arm was broken, and the alleged negligence of the driver in causing the upset is the ground of action for the resultant injury. A question of contributory negligence on the part of the appellee was made by the pleadings in the court below, and one of the alleged errors relied upon by appellants in seeking to reverse the judgment is, that the verdict is contrary to the evidence and the law in respect to such alleged contributory negligence.
The act of appellee constituting the negligence complained of was in having his arm, at the time of the accident, “outside the coach:”
The upset was caused by the wheel on one side of the vehicle striking on a rock at one side of the road, whereby the stage was thrown over upon the opposite side. This portion of the road was in a canon in a mountainous part
There is a wide difference, however, between such a case and the one before us. Bail way coaches pass along an undeviating track and often within a few inches of a signal post, switch bars, cattle-guards, bridge timbers and cars upon side tracks, rendering it dangerous for passengers to expose any portion of the body beyond the outer line of the coaches, which themselves project beyond the wheels and the track. But stage-coaches do not in this particular differ from other road vehicles, the wheels of which project laterally beyond the body of the vehicle,
Another ground of error is that the court permitted evidence that one of the lamps of the stage — the one on the side which collided with the rock — was not lighted at the time of the accident. There' was no error in this. It was a circumstance which, in connection with all the others, tended to show negligence on the part of appellants. The driver testified that it was a starlight night and he was able to see the road track, the wheel and the
Counsel for appellants contend for the rule that the burden of proof is on the plaintiff in such cases not only to show negligence on the part of defendant, but ordinary care on his own part. An examination of the cases will clearly show that a different rule is established by the great weight of authority. Mr. Story lays down the rule as follows: “Where any damage or injury happens to the passenger by the breaking down or overturning of the coach, or by any other accident occurring on the road, the presumption prima facie is, that it occurred by the negligence of the coachman, and the onus prohandi is on the proprietors of the coach to establish that there has been no negligence whatever; and that the damage or injury has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent.” Story on Bailments, sec. 601 a. Our own court in the case of Wall et al. v. Livezay, 6 Colo. 465, declared the. rule in the following language, used by Chief Justice Beck: “ A prima facie case, however, is made out by proof that the relation of carrier and passenger existed
Under these facts, the question was properly submitted to the jury by instructions, whether the accident might not have been avoided by the exercise of due care on the part of the agents of appellants; or, in other words, whether the injury to appellee was not caused by the negligence of appellants in not using the means clearly within their power and control to have prevented the upset.
Some testimony was admitted, over the objection of appellants, touching the manner and character of the driving of the stage before and after the accident in question. We do not think this was unwarranted. It related to the driver’s knowledge of the road and his skill in his employment, and for this purpose was not impertinent, although incompetent to prove his conduct in this particular instance in producing the accident. The want of skill of the driver may be shown, at the time of the accident or at any prior time; but his good or bad conduct can only be looked at, at the time the accident occurred. or as connected with the accident. Peck and wife v. Neil, 3 McLean, 24. And evidence that some distance further on the road, the same night, the driver got outside the road and into a gully made by a recent washout, and that the passengers had to get out and assist in extricating the stage and team, and getting them back on the road, was admissible for the purpose of showing the degree of darkness of the night, the character and condition of the road, and the consequent necessity for proper lights on the vehicle. We have examined, with care, the instructions given by the court, and those refused, upon which errors are assigned, and, guided by the rules and principles of law herein laid doAvn as applicable to the facts of the case, we cannot find that the errors contended for are well assigned.
As to the ground for new trial, that the verdict was
Upon the testimony of the appellee and the other witnesses, including the physicians who were examined respecting the disabled condition of appellee’s arm at the time of the trial, which was eight or nine months after the accident, we do not think that.the verdict of $2,500 was so disproportionate to the loss, expense and injury shown, as to warrant its being considered excessive compensation.
Of the thirty-eight assignments of error in this case, we have reviewed herein only those which are chiefly discussed by counsel in their briefs, and which appear to be relied upon by appellants for reversal, and perceiving no material error in the record, the judgment will be affirmed.
Affirmed.