Lord v. Pueblo Smelting & Refining Co. , 12 Colo. 390 ( 1888 )

Mr. Justice Elliott

delivered the opinion of the court.

The court having instructed the jury to return a verdict in favor of the defendant, the principal question presented for our determination is the propriety of such instruction under the evidence and circumstances of the case. Upon careful consideration we are of the opinion that the following rules may be generally relied upon in determining whether or not a case should be withdrawn from the jury when the alleged negligence of the defendant, as well as the alleged contributory negligence of the plaintiff, are involved in the issues.

First. If the evidence, in the most favorable light in which it may be reasonably considered in behalf of the plaintiff, does not show, nor tend to show, the defendant guilty of the negligence causing the injury as alleged in the complaint, then the court may properly grant a non-suit, or direct a verdict in favor of the defendant; but if there be testimony even of a single witness, or facts and circumstances properly shown in evidence by different witnesses, from which the jury may reasonably draw an inference of negligence, even though there be contradictory testimony by plaintiff’s own witnesses bearing upon the question of negligence, then such question should be submitted to the jury under proper instructions.

Second. If the evidence, in the most favorable light in which it may be reasonably considered in behalf of the plaintiff, shows that the plaintiff was guilty of negligence which contributed to cause the injury as alleged, and without which the injury would not have happened, then the court may properly nonsuit the plaintiff, or direct a verdict in favor of defendant; but if the evidence be contradictory in any substantial matter on the question of contributory negligence, then such question should be submitted to the jury under proper instructions.

Third. When there is no conflict in the testimony bearing upon the subject either of negligence or contributory negligence, the court may, in a clear case, treat the question as one of law, and grant a nonsuit or direct a verdict; but when the determination of the question depends upon the inference to be drawn from a variety of facts and circumstances, in the consideration of which there is room for a substantial difference of opinion between intelligent and upright men, then the question should be submitted to the jury under appropriate instructions, even though there be no conflict in the testimony.

By the foregoing special rules it will be observed that we do not depart from the doctrine that questions of negligence, as well as contributory negligence, are generally within the province of the jury, which should not be invaded by the courts except in the clearest of cases. Cooley, Torts, 666-671; Shear. & R. Neg. § 11; 2 Thomp. Neg. 1236; Railroad Co. v. Holmes, 5 Colo. 197; Railroad Co. v. Martin, 7 Colo. 592; Railroad Co. v. Pickard, 8 Colo. 163; Railroad Co. v. Van Steinburg, 17 Mich. 119. Applying these rules to the evidence in this case, we should hesitate to sustain the district court in directing a verdict on the ground that there was no evidence from, which an inference of negligence might not be reasonably inferred against the defendant company. There were a great variety of facts and circumstances to be considered in determining whether or not the defendant company conducted its operations with due regard to the safety of the large number of workmen employed about its shops and moving trains. Were this the only difficulty in plaintiff’s case we should feel constrained to give the case further examination before affirming the judgment of the court below. Ryan v. Railway Co. 60 Ill. 171.

The question of contributory negligence on the part of deceased seems easy of determination. He was in the employ of the defendant; he was familiar with the premises where he was injured; he knew the nature of defendant’s business, and that its employees were, according to their usual custom, at the time and place of the accident, engaged in switching and poling cars; he understood that there was no definite or certain passage-way to be left open at the point where he attempted to cross the tracks of the railroad. Under such circumstances, to at; tempt to pass between cars only twenty inches apart, loaded with his tools and out of sight of the engineer, was a most perilous undertaking; and we must presume that he was aware of the danger when he voluntarily undertook the risk. It was broad daylight, and he was acting under no command or direction of any superior. Even if defendant’s failure to provide a safe passage-way for its employees from one part of the works to another was a neglect of duty, the plaintiff knew of such neglect, and voluntarily remained in the service of the defendant without any promise on its part to remedy the same. Shear. & R. Neg. § 11; Behrens v. Railway Co. 5 Colo. 400; Railroad Co. v. Martin, supra; Kennedy v. Railway Co. 10 Colo. 493.

The declarations of deceased are not admissible in evidence in behalf of plaintiff unless part of the res gestee; but such declarations are competent when offered by defendant, and they affect the plaintiff in a case of this kind in the same way they would have affected deceased if he had lived and brought an action for the same injury. 1 Greenl. Ev. § 189; Waldele v. Railroad Co. 47 Amer. Rep. 41; Cooley, Torts, 264; Shear. & R. Neg. §§ 52, 301, 302, and notes; Lewis v. Phillips, 17 Ind. 108. The judgment of the district court is affirmed.

Affirmed.