Atchison, Topeka & Sante Fe Railroad v. Shean , 18 Colo. 368 ( 1893 )

Mr. Justice Goddard

delivered the opinion of the court.

The ground mainly relied on in the argument before us, and the one we regard as controlling in this case, is whether, upon the evidence, the deceased at the time of the accident exercised such care as an ordinarily prudent man would exercise under like circumstances. In other words, was he guilty of such contributory negligence as would defeat a recovery ?

The fact is uncontroverted as found by the jury in answers to interrogatories Nos. 1 and 2 that the deceased did not, on approaching the track where he was injured, look or listen for an approaching train, and that if he had looked before going upon the track he could have seen the approaching train; and the question is thereby presented, whether the deceased in his relation as a passenger had the right to omit the precaution of looking for an approaching train, and as the court below instructed the jury, “ assume that the defendant must so regulate its trains that its tracks between the car he left and the eating station platform would be free from obstruction and safe for him to pass over in going to and returning from the eating house. * * * That defendant is bound to exercise the same degree of care in providing for him a safe and convenient way and manner of access to and from the eating station * * * as in the transportation and carriage of him.”

It is said by this court, in D. & R. G. R. Co. v. Hodgson, ante p. 117:

“ The appellant, a common carrier, owed a peculiar duty to the deceased, a passenger for hire. It was bound to exercise the highest degree of care and skill reasonably practicable in the management of its trains. This duty did not cease upon the arrival of the train upon which the deceased was a passenger at the place of his destination. The company was still bound to furnish him an opportunity to safely alight therefrom, and to use the utmost care and diligence in providing for him a safe passage from the train to the platform of the depot.”

The same duty we think is imposed upon the company towards a passenger who while on a continuous journey is going to and returning from the eating stations provided by the company for the accommodation of passengers. While leaving the train for this purpose he does not cease to be a passenger or lose the protection of those regulations that the company is bound to provide for his safety while on its cars, or when rightfully upon its depot grounds ; the same rules of law can be invoked for his protection under such circumstances as are afforded to passengers going to and from its cars. Their duty in the latter respect is well settled. D. & R. G. R. Co. v. Hodgson, supra. In the case of the Pa. R. R. Co. v. White, 88 Pa. St. 333, it is said :

“ It is the duty of the company to provide for the safe receiving and discharging of passengers. It is bound to exercise the strictest vigilance not only in carrying them to their destination, but also in setting them down safely if human care and foresight can do so.”

That the deceased had a right to rely On the performance of such duty by the company and proceed without taking the precaution to look and listen, and that the failure to do so is not negligence, per se, is decided in numerous cases. To this effect are Terry v. Jewett, 78 N. Y. 338; Brassell v. N. Y. C. & H. R. R. Co., 84 N. Y. 241; Archer v. N. Y., N. H. & H. R. Co., 106 N. Y. 589; Jewett v. Klein, 27 N. J. Eq. 550; Baltimore & Ohio R. Co. v. Haur, 60 Md. 449.

In the Baltimore & Ohio R. Co. v. Haur, 60 Md., at page 463, it is said:

“ And though the deceased himself was required to exercise reasonable care, yet we may suppose that his watchfulness was naturally lessened by his reliance upon the faithful observance, by the employees of the defendant, of such precautionary rules and regulations as would secure to passengers a safe transfer. * * * And except in the presence of immediate apparent danger he was authorized to act upon such reliance.”

In the case of Jewett v. Klein, 27 N. J. Eq. 550, it is held:

“ That a person who, in passing from the depot to the train he was about to take, was obliged to cross an intervening track, was not guilty of contributory negligence in that he did not before approaching the train look up or down the track to see whether there was danger from an approaching train, and in that he approached the train diagonally from the platform to the station, and before his train had come to a full stop.”

By the foregoing and other well considered cases it is settled that a passenger on a railroad, while passing from the cars to the depot, is not required to exercise that degree of care in crossing a railroad track as is imposed upon other persons, and that he has the right to assume that the company will discharge its duty in making the way safe; and, relying on this assumption, may neglect precautions that are ordinarily imposed upon a person not holding that relation. And this distinction is to be taken into consideration in determining the propriety of his conduct.

Under all the facts shown in evidence and the circumstances surrounding the accident, whether the person injured was guilty of contributory negligence at the time is a question within the province of the jury to decide, and one that the court cannot rightfully take from them.

In addition to the cases above cited, see Warren v. The Fitchburg R. R. Co., 8 Allen, 227; Gaynor v. Old Colony & Newport R. Co., 100 Mass. 208; Parsons v. N. Y. C. & H. R. R. Co., 21 N. E. Rep. 145; Wheelock v. Boston & Albany R. Co., 105 Mass. 203.

In the case at bar we think the law was correctly given to the jury, and that their'finding on the facts cannot be disturbed. An examination of other points presented by appellant discloses no error that is a cause of reversal of the case. The judgment is accordingly affirmed.

Affirmed.