43 Colo. 238 | Colo. | 1908
delivered the opinion of the court:
Appellee, plaintiff below, brought suit against appellant, as defendant, to recover damages claimed to have been sustained by the negligence of the defendant. A trial on the merits resulted in a verdict and judgment for plaintiff, from which the defendant appeals.
It appears from the testimony that on a vacant lot facing on Main street, in the town of Lyons, there-
On the evening she was injured, which was in the month of June, she went to church. It was dark when she started for home. On reaching Main street, instead of taking the sidewalk, she kept the middle of the street for the purpose of avoiding the danger of falling into the excavation. When she reached a point on the street opposite the lot where the excavation was located, she mistook the lot, or opening, as she expressed it, for the road going south to her home, which was Fifth avenue, and turned to the south. In so doing she stumbled and fell upon the sidewalk opposite the excavation, and, to use her own language: “Being in a dazed condition, I got up, saw the open space, supposed I was going to the road, and fell right in that excavation. ’ ’
Conceding, for the sake of the argument, that the town of Lyons was guilty of negligence in failing to erect a guard-rail on the walk opposite the excavation, the only question necessary to determine is whether or not this omission on the part of the town was the proximate cause of plaintiff’s injury. A defendant is not liable for acts of negligence where an injury is occasioned by an independent, intervening act which he could not have reasonably anticipated would be the result of his negligence, although the
Other decisions of the court of appeals and this court, defining “proximate cause,” are: Blythe v. D. & R. G. R. R. Co., 15 Colo. 333; Travelers’ Ins. Co. v. Murray, 16 Colo. 296; B. & M. R. R. Co. v. Budin, 6 Colo. App. 275; City of Denver v. Capelli, 4 Colo 25.
' According to plaintiff’s own testimony it was her mistake which caused her to step from the sidewalk. She mistook the vacant lot between adjacent buildings for the road which she intended to turn into on leaving Main street. This mistake upon her part was not one for which the town was in any way responsible. The absence of a rail guarding the excavation did not cause her to make the mistake she did. Neither would the absence of such precautions on the part of the town have caused any one to anticipate that a pedestrian passing along Main street at night-in the vicinity of the excavation would make the mistake which plaintiff did. Had she not made this mistake she would not have been injured; and hence, there is but one conclusion to be deduced from her own statement, namely, that the proximate cause of
This case appeals to the sympathy of court and jury. Plaintiff is well along in years, is suffering from physical infirmities, no doubt was quite seriously injured, and is in poor circumstances financially; but these conditions cannot change the law controlling her case.
The judgment of the district court is reversed, and the cause remanded for further proceedings not inconsistent with the views expressed in this opinion.
Reversed and rema/nded.
Chief Justice Steele and Mr. Justice Campbell concur.