156 P.2d 844 | Colo. | 1945
delivered the opinion of the court.
Plaintiff in error, who was also plaintiff below, brought this action against the Union Pacific Railroad Company for money damages in the sum of $2,976.45, basing its claim upon the alleged careless and negligent conduct of the railroad company in the operation of a train which struck and damaged plaintiff’s truck and trailer which were being used to transport beans to the Denver Elevator Company. After issues joined the matter was tried to a jury which returned a verdict in favor of the railroad company. Plaintiff seeks reversal on application for supersedeas, and both parties request that the matter be decided on the application. We comply with the request. Reference will be made to the parties as they appeared below.
The train was traveling at a speed of approximately twelve miles an hour, about one-half the speed permitted by the city ordinance. The engineer testified that he first saw the truck when it was moving over the track. He testified that the automatic bell was
Counsel for plaintiff say there are only two important points in the case, viz.: That plaintiff was an invitee on the premises by implication; and second, that the trial court improperly excluded the doctrine of the last clear chance.
1. We think there is no merit in the contention that the plaintiff here was an invitee, and, therefore, entitled to a higher degree of care. The only Colorado case relied upon is, Watson v. Manitou & Pikes Peak Ry. Co., 41 Colo. 138, 92 Pac. 17, where there is some dicta on possible invitees, but in that case we affirmed a nonsuit in favor of the company. The only other railroad case relied upon is, Turess v. New York S. & W. R. Co., 61 N.J.L. 314, 40 Atl. 614, in which there is also a paragraph of dicta concerning invitation. However, it is a turntable case in which the railroad was held free from liability. Plaintiff contends that the road used herein was private. Assuming that it was, “at such an intersection the obligation of caution imposed upon * * * [the driver] was greater, and that imposed upon the company was less, than had it been a public crossing.” Union Pacific Railroad Co. v. Siemann, 112 Colo. 70, 145 P. (2d) 986. Also assuming that plaintiff might have been an invitee of the elevator company because of mutual interest, it does not follow that the railroad company shared that interest. On the contrary, the
2. Error is urged because the trial court refused to give plaintiff’s tendered instruction No. 1 on the doctrine of last clear chance. Counsel for the railroad company insist that the doctrine was not pleaded. Opposing counsel say it is not necessary to plead it under the new rules of civil procedure. We deem it unnecessary to decide the point, because the evidence is clear that plainiff’s contributory negligence continued down to the moment of impact. This is so because the driver’s own testimony, as already noted, is, that he could have stopped the truck within a couple of feet. Having a clear vision for 600 feet, he will not be heard to say he could not see that which he would have seen had he been looking. “We are therefore asked to say that this guess of the witness, involving such a doubtful performance and based upon defendant’s guess as to the interval separating the car and the plaintiff [the train and the truck in the case at bar] when her peril was discovered, is sufficient to carry the cause to the jury under the doctrine of the ‘last clear chance,’ in favor of one admittedly guilty of negligence continuing to the moment of the collision. This we cannot do.” Killian v. McCourt, 69 Colo. 455, 194 Pac. 936; Fabling v. Jones, 108 Colo. 144, 114 P. (2d) 1100.
Even assuming the doctrine to be applicable in the case at bar, no prejudice is shown in the trial court’s refusal to give the tendered instruction. No evidence was excluded which would tend to support the doctrine, and while instruction No. 12 which was given did not state the rule as positively as the one requested, it sufficiently advised the jury as to the engineer’s duty under the circumstances. We think it fully consistent with the law. 3 Blashfield Cyclopedia of Automobile Law & Practice, p. 83, §1710.
In Union Pacific Railroad Co. v. Siemann, supra, we had a strikingly similar factual situation, and reversed a
We think the jury was properly and sufficiently instructed below and that the verdict should not be disturbed.
Judgment affirmed.
Mr. Justice Burke and Mr. Justice Alter concur.