Colorado Midland Railway Co. v. Robbins

Chief Justice Campbell delivered the opinion of the court. The principal errors relied upon in argument may thus be stated: (1) The court improperly submitted the case to the jury upon an issue not made by the pleadings or the proof; (2) the specific act of negligence upon the part of defendant which was submitted by the court to the jury was not the proxi — 455 — mate or direct cause of the injuries sustained by the plaintiff, and it was accompanied by erroneous instructions of law; (3) the plaintiff was guilty of contributory negligence that defeats his recovery. 1. The court instructed the jury that the specific act of negligence charged against defendant was the running of its train in excess of the rate of speed prescribed by the ordinance of the city, and in considering defendant’s negligence they were told that they must confine their attention to that specific act of negligence and'no other. Whether this instruction was given at the request of defendant or plain-. tiff, or by the court of its own motion, does not clearly appear, but counsel for the railroad company say that this was not the act of negligence pleaded. They say that this specific act was only one of a series relied upon as constituting the cause of action, the others being the neglect to give signals of the approaching train, the failure to stop or to make any effort to slacken the speed of the train, or to get the same under control; and that the noise of the-engine and cars, and the noise and confusion of the steam escaping from them, resulting from the careless management of the train, and not the excessive speed, caused the inj ary. Defendant’s contention, as we understand its counsel, is that the court should have instructed the jury that all these various acts of negligence or elements or component parts of the specific negligence charged, and the results from them, must be established by the evidence before a verdict for plaintiff could be returned. And since there was no proof whatever that any noises' were made or any steam escaped, the cause of action as pleaded was not proved. While the complaint is not drawn with that precision which might have been employed, we are of — 456 — opinion that the construction • which defendant’s counsel put upon it is not correct. The distinctions which they draw are too fine for practical purposes. A careful reading of the entire pleading satisfies us that the court was right in charging the jury that the specific act of negligence pleaded, as being the direct and proximate cause of the injury, was the excessive rate of Speed which defendant employed in running its train. The others were but resultants or accompaniments of that act, or if separate acts of negligence, they, cannot be said to be such an essential part of the cause of action pleaded as to defeat a recovery if not proven. Otherwise expressed, if the specific act of negligence as to speed relied upon was established by the evidence,. and was the proximate cause of the injury, the plaintiff was entitled to recover though these other elements were not shown to exist. Whether the court declined to submit them upon the theory that they were not essential to the cause of action, or because the evidence did not require it, is immaterial, for the restriction of the plantiff to the .one act of negligence worked no harm to defendant. The point that the high rate of speed was not the proximate and direct cause of the injury we do not think is good. The fact that other intervening causes may have contributed to the injury — unless one or more of them were to stand as the cause of the misfortune — does not render the other, or the running .of the train at an excessive rate of speed, too remote. That is to say, if the .first or original negligent act of the defendant in running its train too fast set in motion a train of dependent or connected causes, all of which, in a measure, may have contributed to the .misfortune, that primary act may still be treated as the proximate and direct cause of the injury. Plaintiff testified that if the train had not been [funning in. excess of eight miles an hour, he could "have withdrawn-himself from' the . place of danger. — 457 — The jury were in possession of all the facts bearing upon that question, and upon proper instructions-applicable thereto found that the excessive rate of speed, which constituted a violation of the. ordinance, was the direct cause of the injury. ■ We are not disposed- to disturb their verdict on account of the. alleged lack of evidence to sustain it in this particular. — Denver, etc. R. R. Co. v. Robbins, 2 Colo., App., 313 (30 Pac. 26.) 2. The defendant says that plaintiff’s case as to the vital issue of the speed of the train was not made out. One of plaintiff’s witnesses, who had. been a fireman on a locomotive, testified that at the time he saw the locomotive it was running between eighteen and twenty miles an hour, and he could not. see that it had slowed down much at the timeof thecollision. ■ Counsel say that because this witness was looking at the train as it was coming directly towards, him, it was impossible for him in such circumstances with any degree of accuracy to determine the speed of any moving object,, much less that of a railroad train. Counsel overlook the fact, however, that-at the time the- train was moving on a curve, so that it is not true, as they contend, that the witness was directly facing the locomotive. Other- witnesses for plaintiff testified that the train was running very, fast, and plaintiff himself said:- “I jumped and. grabbed my horses and it came on me that quick,” •but -none of them except Bocheville specified the number of miles per hour. It may be that some, if. not all, of the witnesses for defendant, being more, familiar .with the movement of trains, were more capable than plaintiff’s witnesses-of giving an intelligent opinion as to the speed at which this train was moving; but we cannot say that the jury should have ignored the testimony of plaintiff’s witnesses, and believed that of his adversary. The matter was458 fairly submitted to their consideration, and we do not feel at liberty to reverse the judgment because of the insufficiency of proof as to the excessive speed. Among other instructions the court said, if the ordinance of the city limiting the speed of trains was violated by the defendant that of itself was negligence. The authorities are not entirely harmonious as to whether the running of a train at a rate of speed beyond that permitted by ordinance or statute is of itself negligence. By some, such violation is declared to be negligence per se, by others, only evidence of negligence. It may be that the better rule is that such violation is only evidence of negligence, but when the violation is wholly unexplained it may be conclusive evidence of negligence. In this case the defense was that the ordinance was not violated. There was no attempt at an explanation of, or an excuse for, an excessive speed; hence under either rule no prejudicial error was committed. Some of the authorities are: Denver, etc., R. R. v. Ryan, 17 Colo., 98, 100; 3 Elliott on Railroads, § 1095; Riley v. Salt Lake Rapid Transit Co., 10 Utah, 428; Bott v. Pratt, 8 Am. & Eng. Corp. Cases, 437; Denver, etc., R. R. Co. v. Robbins, supra. 3. We think that the question as to the contributory negligence of the plaintiff was submitted under appropriate instructions, and that the jury did not make a mistake in their finding that, in the circumstances, plaintiff was free from fault. This brings us to certain instructions of which complaint is made. The court instructed the jury that, to entitle the defendant to a verdict upon the ground that the plaintiff’s own negligent act contributed to his injury, it was incumbent upon the defendant affirmatively to establish that fact from the evidence, unless such negligence appeared from the testimony of plaintiff him — 459 — self. Defendant’s counsel say that this was erroneous, because if such contributory negligence appeared from the testimony of any of plaintiff’s witnesses, or from any evidence produced by him, he was not entitled to recover. As an abstract proposition of law, the instruction was not right, for it is true, as defendant contends, if it should appear from any part of the proof offered in behalf of a plaintiff that his own negligent act was a proximate or direct cause of the injury, he is not entitled to recover. But the error was without prejudice here, for a careful examination of all the evidence produced in behalf of the plaintiff shows that there is no evidence whatever of any negligent act upon his part unless his own testimony disclosed it and as, to that the instruction was proper. So that, if there was any evidence of such a negligent act upon the part of plaintiff, it apr peared from his own testimony, and not from any of his witnesses. The court instructed the jury as favorably as defendant could ask to the effect that if they found that plaintiff was injured in an endeavor to save his property, or to remove it to a place of safety, their verr diet must be for the defendant. This is a general statement of the rule, although there are some authorities, as shown in § 44 of Beach on Contributory Negligence (3d ed.), which hold that when such risks are assumed, even to save property from destruction, allowance may be made for the excitement under which one acts in such transactions, and running into danger may not, in such case, in virtue of all considerations, bar recovery. . But this is not material here for the reason that plaintiff is not complaining of the instruction which was given, and defendant, of course, was satisfied with it. But defendant strenuously contends that the evidence shows that plaintiff ’s .object when he/ jumped from • the wagon • and at — 460 — •tempted to turn his horses to the eastward and bring •them back to Cascade avenue was solely for their protection, and not for the purpose of withdrawing himself from a dangerous place. Plaintiff does say :that he thought his property was in danger, yet he also says that he considered that he himself was in a dangerous place, and that what he did was for the purpose of extricating himself from peril. So that, upon the question of fact, if the jury should find as ■in effect instructed by the court that the plaintiff’s object was to save himself, the evidence was sufficient to sustain their finding. In this connection the court said to the jury that -if one uses bad judgment in the excitment of the moment of danger, this of itself does not prove negligence, and in such cases plaintiff is only required to use ordinary care to prevent injury. Defendant’s •criticism of this instruction is that it applies only when the peril has been brought on by the negligence of a defendant, and is wholly inapplicable where a plaintiff voluntarily places himself in a position of danger for the protection of his property. As already intimated, there was sufficient evidence in this case to make the instruction applicable. Let us consider for a moment the situation in which plaintiff was placed. He was driving his team-along a public highway where he had a right to be. He was supposed to know that the ordinance of the city restricted railroads in running their trains to six miles an hour. He had a right to presume that the train which he saw approaching was not exceeding that limit. He testifies that had the ordinance been observed he would have been able to take himself and team out of the dangerous place. It is too clear for argument that he was in a dangerous place on the highway when he saw the train approaching, and it was but an act of ordinary prudence, as we think, for him in the cireum — 461 — stances of the ease to do as he did. He might well have .concluded that to extricate himself from the threatened peril it was safer to jump from the wagon and turn his horses than to undertake to remain in the wagon with the train bearing down upon him. There 'was enough in the evidence to warrant the court in giving this charge, and though defendant did not know when he alighted from the wagon that the train was running at a speed of eighteen or twenty miles an hour, this fact, if it was shown, may have been, and the jury were justified in finding that it was, the negligent act on the part of defendant that placed plaintiff in a perilous situation; hence it cannot be said that plaintiff voluntarily exposed himself to danger to save his property. On the contrary, the jury might well find that defendant's antecedent negligent act led plaintiff to act as he did. At all events, the question as to whether the course adopted by him to avoid the danger was such as a man of ordinary prudence would have chosen was peculiarly a question for the jury, and since they were given clear and explicit instructions as to the law of the case, their finding cannot be disturbed. Allen v. F. & C. C. Ry. Co., 15 Colo. App., 213, 1 Colo. Dec., 765, is in some of its features quite in point here under the facts of the case at bar. The record discloses that in its rulings upon evidence and instructions the court, to say the least, went as far in favor of defendant as it could ask. Perceiving no prejudicial error, the judgment must be affirmed. Affirmed,