Headley v. Denver & Rio Grande Railroad

Mr. Justice Teller

dissenting.

I cannot agree that the court below was justified in directing a verdict for defendant.

As I read the cases determined by this court in which that question was involved, they are directly in conflict with the majority opinion.

In the cases of Denver and Rio Grande Railroad Co. v. Gustafson, 21 Colo. 393, 41 Pac. 505, it appeared that plaintiff stopped some distance from a railroad crossing while a freight train was passing on one of the tracks, that after it passed a flagman stationed there signalled plaintiff to go ahead. Plaintiff testified that thereafter he neither looked nor listened .for approaching trains, but relied solely upon the flagman. This court held that under those circumstances a nonsuit was improper, and said: “We cannot say, as a matter of law, that the defendant in such case may rely solely upon the flagman; neither can we say, as a question of law, that his failure to look or listen was not contributory negligence. It is a question of fact, to be determined by the jury whether or not a plaintiff may rely solely upon the flagman, or whether he is excused from the exercise *517of any additional caution on his part under these circumstances.”

This court there cited with approval an Iowa case which held that it was for the jury to determine whether the plaintiff was justified in relying upon the flagman’s signal to cross over.

In Phillips v. Denver Co., 53 Colo. 458, 128 Pac. 460, Ann. Cas. 1914B 29, it is said that, “this court has never held that a plaintiff was guilty of contributory negligence, as a matter of law, when some fact or element was present that tended to lull the plaintiff into a sense of safety, and caused him to perform or fail to perform the act or acts upon which the contributory negligence was sought to be predicated. On the contrary this court has held that in such a; case the question was one for the jury.”

Again, speaking of acts of a railroad company which create an appearance of safety, this court said:

“Such a condition does not relieve the traveler from the exercise of all care, but it is a factor to consider in determining whether or not he exercised that degree of care which, under the circumstances, he should have exercised.” Nichols v. C., B. & Q. R. R. Co., 44 Colo. 501, 98 Pac. 808.

In Williams v. Sleepy Hollow M. Co., 37 Colo. 62, 86 Pac. 337, 7 L. R. A. (N. S.) 1170, we said:

“It is only in the clearest cases that the court should usurp the functions of the jury in determining questions of negligence or contributory negligence.”

In the majority opinion, this court arrived at a conclusion that the deceased must have known that the signal bell was out of order and not ringing. To do this, the court indulges in inferences from the evidence, thereby usurping the functions of the jury.' As to whether or not deceased must have known the condition of the bell, because of certain facts proved, is a question upon which intelligent persons may reach different conclusions. If the matter had been left to the jury, and they had found that he was ignor*518•ant of the condition o.f the bell, as well they might, they might then have found that he was not guilty of negligence, under the ruling laid down in Phillips case, supra, because they might reasonably have found that the silence of the bell tended to lull deceased into a sense of safety. Under the Gustafson case it was clearly a question for the jury whether or not deceased was or might have been justified in relying upon the silence of the bell.

The prolonged discussion of the evidence in the majority opinion is sufficient of itself to show that there were matters in evidence from which the jury might have found for either party upon the question of contributory negligence.

The deceased cannot be held conclusively at fault “unless there is no sensible explanation to the contrary reasonably possible.” Stahl v. Railroad Co., 57 Mich. 239, 23 N. W. 795. Several things might have been regarded by the jury as sensible explanations.

In Nichols v. C., B. & Q. R. R. Co., supra, this court called attention to the fact that the plaintiff might have crossed the track in safety had the train been going at the rate allowed by ordinance.

So here, the jury might have found that the deceased was not negligent in crossing the track, when, after seeing the approaching train, there was time for him to do so, had not the train been running at double the speed allowed by the ordinance.

In a Michigan case the plaintiff’s evidence tended to show that, after he was aware of the approach of the train, he had time in which to cross the tracks, had the train been running at its authorized speed, and that because it was running at double the proper speed, he was struck while on the track. A refusal to direct a verdict for defendant was sustained. Railroad Co. v. Van Sleinburg, 17 Mich 120.

The silence of the bell, while not justifying the deceased in a reckless disregard of his safety, was a matter to be *519considered by the jury, as is directly held in Tobias v. M. C. Ry. Co., 103 Mich. 330, 61 N. W. 614.

Decided July 6, A. D. 1915. Rehearing allowed November 1, A. D. 1915. Judgment affirmed February 7, A. D. 1916.

I think the rule laid down in the majority opinion is a radical departure from the well established law of this state, and contrary to the weight of authority in other jurisdictions.

I am authorized to state that Mr. Justice Hill concurs in these views.