Kennedy v. Denver, South Park & Pacific R'y Co.

Per Curiam. The rulings challenged by the first three assignments of error were correct, and the assignments will not be discussed. Conceding that the testimony concerning notice to the conductor, and the latter’s remark, should have been received in evidence, and that the court’s action in excluding the same was error, we still think there is not sufficient ground for reversal. Plaintiff was a man of mature years, of sound mind and perfect eyesight. He was in the possession of unimpaired physical activity and strength. His only defect was that of being partially deaf. Of this defect he was aware, though perhaps he did not know its extent. Without inquiry about defendant’s trains, he voluntarily went upon its track, and was walking thereon when the accident occurred. It was in the day-time, and the road-bed for nine hundred feet behind him was in full view. Prior to the accident the whistle was blown six or seven times in short, sharp blasts, excepting the last, which was a prolonged blast. Plaintiff’s own evidence clearly establishes contributory negligence on his part. Therefore, under a well-known legal principle, before he could recover, it became necessary for him to show gross negligence or wantonness on the part of the employees operating the train. Railroad Co. v. Holmes, 5 Colo. 197; Railroad Co. v. Cranmer, 4 Colo. 524. Aside from the fact of the accident itself, and the testimony offered, but excluded, there is nothing in the [496] case to show that the injury was the result of such negligence or wantonness. We cannot presume that plaintiff would have offered other or further proofs had the rejected testimony been received; and, considering this testimony in connection with the other evidence,.it does not appear but that the train was operated with the care required, under all the circumstances. Had the court admitted this testimony, we are of the opinion that a prima facie case of gross negligence or wantonness, requiring a submission to the jury, would not have been made. The judgment is affirmed.