Denver, T. & G. R. Co. v. Simpson

Mr. Justice Hayt delivered the opinion of the court. In the court below appellee, as plaintiff, obtained judgment for the sum of $800 for bodily injuries sustained by him while in the employ of appellant in the capacity of brakeman upon its railroad. It is shown by the record that at the time of the accident appellant was operating a line of railroad in this state between the cities of Denver and Pueblo; that appellee was in its employ as brakeman on one of its freight trains running between said points; that upon the morning of the day of the accident the train upon which appellee was employed left the city of Denver going south upon schedule time; that said train was not then properly supplied with links with which to make the couplings necessary to be made upon the contemplated run; that appellee endeavored to provide the train with the requisite number of links before starting from the city of Denver, but was prevented from so doing by reason of the negligence of appellant in failing to furnish such links. About 8 o’clock upon the evening of said day, appellee, in his capacity as brakeman, was required to make a coupling at Eranceville Junction upon theTine of said railroad. In making that coupling appellee sustained the injury for which, damages were recovered in the court below. The [58] facts attending the accident are practically undisputed, the witnesses introduced by the plaintiff agreeing as to all material particulars, while the only attempt made to overthrow this testimony rests upon evidence of admissions claimed to have been made by the plaintiff to other employees of the company shortly after the accident. Dy such evidence contributory negligence on the part of appellee was attempted to be established. It is shown that the draw-heads of the two cars which appellee was required to couple were of unequal heights above the tracks, making the coupling somewhat difficult. The night was dark, cold and stormy, the supply of links furnished the train by the company was exhausted; none remained with which to make this coupling. In this extremity, and as the train was coming down the side-track to the cars to be joined with it, appellee was searching about the tracks to find a link with which to make this necessary coupling. At this juncture the conductor in charge of the train ordered him to take a link laying upon the ground near the side-track and make the coupling with it. The accident occurred while appellee was endeavoring to execute this command. The link pointed out by the conductor not being a suitable one with which to make the coupling, it caused appellee’s hand to be crushed between the cars. As described by the witnesses upon the stand, it was a bent link, as distinguished from a crooked link — a crooked link being one crooked in a particular way for the purpose of making couplings in cases where the draw-heads of the cars to be connected are of different elevations above the track, while a bent link is one that has become misshapen by use. In view of the evidence, the verdict of the jury in favor of appellee cannot be disturbed. He was acting at the time under the immediate direction of his superior, the conductor, who had charge of the train and of the brakemen employed thereon, including appellee. Appellee did not discover the defect in the link in time to avoid the accident. [59] lie could not well do so in the darkness. He was required to act promptly in making the coupling, without time for investigation or opportunity for reflection. Hnder the law he was only required to exercise such care as might reasonably be expected from a person of ordinary care and prudence in the situation in which plaintiff was then placed. In view of the facts, it cannot be said, as a matter of law, that he did not exercise reasonable care. On the other hand, the company is properly chargeable with negligence in failing to provide the train with a sufficient number of links in the first instance, and again in directing appellee to use the defective link. The duty of the master to supply the servant with suitable machinery and appliances for the work to be performed is universally recognized. Denver, S. P. & P. R. R. Co. v. Driscoll, 12 Colo. 520; Wells v. Coe, 9 Colo. 159; Hough v. Railway Co., 100 U. S. 213. Some of the witnesses for appellant testified that soon after the accident appellee stated that the accident was caused by his glove sticking to the link, the glove being wet at the time. Evidence was introduced, however, to show that the accident was not so caused, and that if appellee made the statements attributed to him, he was in error in so doing. It was also in evidence that the glove was not wet, and that its use under the circumstances was reasonable and proper. All these matters, together with the law in relation to unavoidable accident and contributory negligence, were fully submitted to the jury under proper instructions; the damages are not excessive, and we see no reason for disturbing the verdict. Gilmore v. Northern P. R. R. Co., 1 West Coast Rep. 455; Railroad Co. v. Doyle, 49 Tex. 190. In its essential features the case is entirely dissimilar from the case of Wells v. Coe, supra, relied upon by appellant. In that case Coe, the party injured, was “ foreman and boss of the workmen.” His authority at the mine was plenary, save, perhaps, at such times as Wells might happen to be present. He had charge of the workmen and [60] control of the machinery. By his orders the means provided to prevent just such accidents as the one causing the injury complained of, were dispensed with, thereby making the accident possible, and it was rightfully held under these circumstances that he could not recover. It is contended that all evidence of the insufficiency of the supply of links upon the train was inadmissible under the pleadings. An examination of the complaint and answer shows that this was one of the matters directly put in issue, consequently the evidence was properly admitted. The judgment will be affirmed. Affirmed.