Denver & Rio Grande Railroad v. Thompson , 65 Colo. 4 ( 1917 )

Mr. Justice Garrigues

delivered the. opinion of the court.

This action was instituted in the court below by Thompson, whom we will designate as plaintiff, against the Denver & Rio Grande Railroad Company, to obtain a judgment for damages occasioned by reason of an injury sustained by plaintiff, which he alleges was caused by the negligence of the railroad company. Judgment was entered upon a verdict returned in his favor, to review which defendant brings the case here on error.

The grounds of negligence alleged in the complaint are: That the employes of the company carelessly and negligently manipulated a hoist they were using, and carelessly and negligently failed to secure or fasten it so as to prevent it from moving, after the air hose was attached, and, the hoist being free to move and easily moved, defendant’s employes negligently and carelessly permitted it to move or to pull or draw upon the hose with sufficient force to disconnect the coupling. Plaintiff’s attorney in his brief states his position regarding the cause of the accident to be:

“That the air hose separated, or was uncoupled, because the hoist was pushed or pulled too far to the south, causing the hose to be stretched and pulled into a horizontal position, which caused the coupling to separate.”

Plaintiff was employed by defendant as a machinist in its shops at Salida, Colorado, and operated a planer, near which was a movable hoist used to lift and move machinery. This hoist was mounted on rollers and suspended from a beam or rail, on which it was moved by being pushed or pulled along. A rubber air hose 8 feet 5 inches long hung down from the hoist, and there was a stationary air pipe along the ceiling from which was suspended another piece of rubber hose 13 feet 10 inches long. At the loose ends of these pieces of hose and used to attach them together was a standard -Westinghouse air line coupling — such as is used in connecting cars for air brake service — 1 foot 9 inches long, making the total length of the hose when coupled 24 feet. The relative position of the machinery is illustrated by the accompanying sketch:

The distance between the planer and the lathe was 9 feet and 10 inches. The hoist is operated by means of compressed air conveyed from the stationary iron pipe, through the coupled rubber hose into the piston chamber of the hoist. When it is desired to operate the hoist, these two pieces of hose are connected by the Westinghouse air coupling. On the day of the accident, while plaintiff was seated on and operating the planer, witness Elliott, a coemploye, used the hoist to pick up a pair of tank wheels and take them to the lathe. There was evidence that as the hoist with its load was pushed into position over the lathe and was about to be lowered, the hose coupling became disconnected and the piece attached to the hose leading from the stationary air line, swung towards plaintiff, the air pressure causing the end to fly around and strike him, knocking him from the planer to the floor, the fall resulting in the injury complained of. An examination of the coupling immediately after the accident disclosed no defect in any of its parts.

Garrigues, J. (after stating the facts as above) :

(1) Plaintiff must recover upon the allegations of his complaint. Elkton Co. v. Sullivan, 41 Colo. 241-250, 92 Pac. 679; Soden v. Murphy, 42 Colo. 352-356, 94 Pac. 353; Chaffee v. Widman, 48 Colo. 34-41, 108 Pac. 995, 139 Am. St. Rep. 220.

(2) No presumption of the negligence charged arose from the mere happening of the accident. Greeley v. Foster, 32 Colo. 292-300, 75 Pac. 351; City of Denver v. Spencer, 34 Colo. 270-276, 82 Pac. 590, 2 L. R. A. (N. S.) 147, 114 Am. St. Rep. 158, 7 Ann. Cas. 1042; D. & R. G. Co. v. McComas, 7 Colo. App. 121-123, 42 Pac. 676; Bishop v. Brown, 14 Colo. App, 535-548, 61 Pac. 50.

(3) A resort to mere conjecture or possibilities will not take the place of direct or circumstantial evidence. No number of mere possibilities will establish a probability. Elkton Co. v. Sullivan, 41 Colo. 242, 92 Pac. 679; Patton v. Railway Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Samulski v. Menasha Co., 147 Wis. 285, 133 N. W. 142.

(4) It appears from the evidence that this particular hoist had been in daily operation in the shop where plaintiff was working for at least 6 years. There is no evidence as to the cause of the uncoupling of the hose. None of the witnesses were able to assign any cause. Plaintiff’s theory is that the hoist was pushed or pulled so far as to cause the hose to be stretched or pulled in a horizontal position, causing it to become uncoupled. But there is no evidence to support this theory. Moreover, it was physically impossible to stretch a 24-foot hose to a horizontal position under the conditions and circumstances shown by the testimony, and there being no evidence establishing, or from which the cause of the parting of the coupling may be legally inferred, the jury could not guess that it was due to any negligent act or omission on the part of the defendant; consequently the judgment cannot stand.

Reversed and remanded.

Teller, J., dissents.