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raflroad company for losses occasioned by dager v. Rockwell, 14 Colo. 459, 24 Pac. Rep. fires from its trains, especially in a case 556; Coon v. Knap, 8 N. Y. 402; Trask v. where the fire has occurred without any Railroad Co., 2 Allen, 331; Brown v. Brooks, fault or negligence of the railroad company, 7 Jones, (N. C.) 93; Railroad Co. y. Welch, -a purely accidental fire? In the present 52 I. 183; Batdorf v. Albert, 59 Pa. St. 61. case the complaint does not allege that the We do not decide that the receipt, considrailroad company was guilty of any negli- ering its apparent connection with Exhibits gence in causing the fire which destroyed 1 and 2, could not be explained so as to the cattle company's hay, nor does it allege show that it was not intended to include the that plaintiffs obtained the assignments of claim of damages for the hay, nor do we the cattle company's claim in consideration bold that a part of an entire demand for unof their insurance and payment for the prop- liquidated damages growing out of a single erty destroyed, nor does it allege any other act or transaction, such as was disclosed by equitable matter to uphold a partial assign- the evidence, cannot, in equity, be transment. The evidence shows that the rail- ferred, so as to vest a right of action in the road company had, without notice of any transferee, Our conclusion is, however, that insurance, payment, assignment, or subroga- the only relief to which plaintiffs in this action on the part of plaintiffs, settled and tion are entitled is, in its nature, equitable, paid the cattle company at least a part of and that, in order to recover, the facts showthe damages occasioned by the same fire ing such equities must have been pleaded, which destroyed the hay. The defendant in substance, as equity pleading requires. company had taken a receipt in full satis- See Bank v. Ford, and other cases above faction of all claims and demands occasioned cited. Since the faots showing such equi. by the fire complained of. Such settlement ties were not in any manner pleaded, the was had with an agent of the cattle com- evidence did not correspond to the allegapany who had full knowledge of all the facts tions, and was not sufficient to sustain the and circumstances of the case, there was no issue on the part of plaintiffs. It follows evidence of mistake or fraud in the procure- that the decision of the trial court upon the ment of the receipt, and such settlement and law and the facts must be upheld. Tho payment appear to have taken place before judgment of the district court is accordingthe assignments to the insurance companies | ly affirmed. were executed. The objections to a recovery by plaintiffs, as contended for by counsel, may be summarized as follows: That a claim for unliquidated damages growing

WILLIAMS v. WILLIAMS. out of a single cause of action cannot be (Supreme Court of Colorado. Oct. 2, 1893.) split up into two or more claims, so as to

APPEAL-REQUIRING New Bond. make a party liable to two or more actions,

When it is made to appear that the without his consent, unless some equitable surety upon an appeal bond has become insufconsideration requires such a division of the

ficient, the court having jurisdiction of the ap

peal may order the giving of a new bond with damages, and that, in the absence of such

sufficient surety as a condition to the mainconsent or equitable consideration, the set- tenance of the appeal, and, in default of comtlement and discharge of a portion of such

pliance with such order, may dismiss the ap

peal. a claim is a discharge of the whole; that

(Syllabus by the Court.) the receipt given by the cattle company in discharge of its claims against the railroad Appeal from district court, Arapahoe company was in the nature of a contract, county. and operated as a release, and that parol Action between Elizabeth M. Williams and evidence was not admissible to change or Kate Williams. From the judgment renvary the terms of such instrument, except dered, Elizabeth M. Williams appealed. Apupon evidence showing that the same was pellee now moves for a new appeal bond, procured by mistake or fraud, and that there and, in default thereof, to dismiss the apwas no evidence of mistake or fraud; that peal. Motion granted. the receipt given by the cattle company to The provision of the Code referred to in the railroad company was upon its face of the opinion is as follows: "Sec. 388. Apsuch a nature that the cattle company could peals to the supreme court from the district, no longer have maintained

any action

county and superior courts shall be allowed, against the railroad company for the loss

provided, the party praying for of the hay; that a party cannot by assign- such appeal shall by himself, or agent, or ment acquire rights superior to those pos- attorney, give bond with a sufficient surety, sessed by the assignor at the time of mak- to be approved by the court from which the ing the assignment; and that the same prin- appeal is taken (or the clerk thereof, when ciple applies to subrogation,-in short, that the order granting such appeal may so dithe articles of assignment and subrogation rect) and file in the office of the clerk of the were invalid, because at the time of their court from which the appeal is taken within execution the cattle company no longer had the time limited by the court, which bond any claim against the railroad company. shall be in a reasonable sum sufficient to Shedd. Subr, $ 6; 1 Greenl. Ev. $ 275; Gul- cover the amount of the judgment appealed from, and costs, conditioned for the payment | be required to give a new appeal bond conof the judgment, cost, interest and damages, ditioned according to law, in the amount in case the judgment shall be affirmed, and heretofore required, and with surety or sure also for the due prosecution of the appeal; ties to be approved by the clerk of this court, and the obligee in such bond may, at any within 30 days from this date. In default time, on a breach of the condition thereof, of compliance with this order, the appeal have and maintain an action at law, as on herein will stand dismissed. Motion grantother bonds. The supreme court may in its ed. discretion allow defective appeal bonds to be amended."

Morrison, De Soto & Macon, for appellant. CHICAGO, R. I. & P. R. CO. v. CRISMAN. Lipscomb & Hodges, for appellee.

(Supreme Court of Colorado. Oct. 2, 1893.) RAILWAY COMPANIES - ACCIDENTS AT CROSSINGS

CONTRIBUTORY NEGLIGENCE – FAILURE TO GIT3 ELLIOTT, J. Appellee moves for an or- SIGNALS. der requiring appellant to give a new appeal 1. Failure to ring the bell or blow the bond, on the ground that the sole surety on whistle at a crossing, as required by law, does the original bond has become insolvent, so

not render a railroad company liable for an that the bond is no longer adequate security

accident at a crossing, unless that be the prox

imate cause of the injury, and there be no for the judgment appealed from; and asks such negligence on the part of the person inthat in default of giving such further bond

jured as to prevent his recovery. the appeal be dismissed. The motion is

2. Where the view of the track from the

highway is obstructed, or the crossing is in supported by affidavits setting forth facts other respects especially dangerous, it is the showing that the surety has become insol- duty of a traveler, aware of such facts, to ex. vent since the original bond was accepted.

ercise a higher degree of care than when the

view is unobstructed; and if he cannot otherThe affidavits are not controverted. Coun

wise satisfy himself that it is prudent to cross sel for appellant contend that this court is he must stop and listen before driving on the powerless to require a further bond as a

track. condition to the maintenance of the appeal.

3. Failure to give the statutory signals,

or running the train at a too rapid rate of The contention is that when an appeal has speed, does not excuse negligence on the part been perfected by the giving of an appeal of one injured on a railroad crossing. bond in due form, and with sufficient and Error to district court, Arapahoe county. approved surety, the power of this court in Action by Albert Crisman against the Chi. respect to such bonds is exhausted. Section cago, Rock Island & Pacific Railroad Com388 of the Code requires as a condition to

pany. Judgment for plaintiff, and defendthe allowance of an appeal that appellant or ant briugs error. Reversed. his representative shall "give bond with a

This suit was brought to recover damages sufficient surety.” The sufficiency of the for the destruction of plaintiff's wagon and surety is to be determined by the trial court

the killing of his horses by being struck by or its clerk in the first instance, but when

an engine of a passenger train belonging the appeal is perfected the jurisdiction of

to plaintiff in error while coming east on the lower court ceases, and the appellate

the Kansas Pacific Railroad at a point at court is invested with the necessary juris

or about the intersection of Market and Fordiction to protect the rights of all parties to

ty-Fourth streets, in Denver. A judgment the appeal by allowing or requiring further

was recovered in the district court of Arapa. appeal bonds. The purpose of the bond with sufficient surety is to indemnify appellee in

hoe county for the value of the team and

wagon. case his judgment shall be affirmed. It is manifest that such purpose would fail if ap

William Harrison, A. E. Pattison, and pellee were not permitted to insist upon the

Thomas H. Edsall, for plaintiff in error. continuance of such security until the de

Browne & Putnam, for defendant in error. termination of the appeal. Hence when it is made to appear that the surety has be

GODDARD, J. It appears from the reccome insufficient, the court having jurisdic

ord that at the point of collision there were tion of the appeal may order the giving of

four tracks. The one furthest from the city a new bond with sufficient surety as a con

is designated “the transfer track." This dedition to the maintenance of the appeal,

parts from the main track at a point about and, in default of compliance with such

750 feet easterly from the crossing, and order, may dismiss the appeal. The statu- crosses the highway at a point 367 feet from tory provision that “the supreme court may

where the accident occurred. The second allow defective appeal bonds to be amend

track is a siding, which crosses the highway ed" was not intended to limit the power of at a distance of 10 feet from the main track. the appellate court to mere defects of form. The third track is also a siding, crossing These views are in accordance with the cur- the highway about 15 feet from the main rent of authority and the uniform practice track.

At the time of the accident cars were of this court. Elliott, App. Proc. 88 366, 367; standing on either side of the highway upJerome v. McCarter, 21 Wall. 17; Ruschaupt on all of these tracks except the main track, v. Carpenter, 63 Ind. 359. Appellant will and so obstructed the view of the main track

that it was difficult for a person driving on the highway to see a train approaching from the east after the transfer track had been passed, and while between the transfer track and the main track. The wagon destroyed was a covered milk wagon, loaded with milk cans. On either side of the wagon there were sliding doors, with a window in front, which hung upon hinges, and could be opened and hooked up at the top of the cover. The doors and window were open at the time of the accident. One Nuney, the servant of defendant in error, who was driving the team at the time of the accident, had been driving over the road for four days previous to the accident, and had passed over the railroad crossing at least once each day during that time, at about the same hour the accident OCcurred. There is a serious conflict in the evidence as to whether the whistle was blown before, or the bell was being sounded at, the time of the accident; also as to the manner in which Nuney approached the crossing; and, the jury being the exclusive judges of the credibility of the witnesses and of the weight of the evidence introduced upon these questions of fact, their finding thereon cannot be disturbed unless error intervened in the instructions.

Error is assigned upon the giving of instruction No. 3, wherein the court attempts to define the duty of a railway company in approaching a crossing, and is as follows: "The jury are instructed that if you find from the evidence that the view of the railroad track over which the defendant's train was approaching at the time of the alleged accident was obstructed by box freight cars on the side tracks described in the evidence, so as to make the view of the approaching train impossible or difficult, then the omission of the company to give signals of its approaching train, if you find such omission from the evidence, was negligence on the part of the defendant so as to make it liable." This instruction is erroneous in declaring the company liable upon failure to give such signals, regardless of the fact whether such failure was the proximate cause of the acci ent. The jury might, under this declaration of law, if they found the signals were not given, find against the company, whether the accident was in any measure caused by such failure or not; and also in disregard of any question of contributory negligence on the part of the plaintiff. "Failure to ring bell or blow whistle at crossing, though required by law, will not render the company liable unless that be the proximate cause of the injury, and there be no such negligence by the plaintiff as will prevent his recovery.” Beyel V. Railway Co., 34 W. Va. 538, 12 S. E. Rep. 532; Artz v. Railroad Co., 34 Iowa, 153; Railway Co. v. Jones, 76 Ill. 311.

Further error is predicated upon the re

fusal of the court to give the following in. struction, as prayed for: "If Nuney's view of the railroad track, in the direction from which the train was approaching, was obstructed to such an extent as to prevent him from seeing the approaching train from the wagon, then he was bound to use greater care than would have been required if the view had been unobstructed, and should, if necessary, have stopped the team and listened for approaching trains before driving on the crossing;" and in giving it with the following modification: “Provided you find the defendants were not guilty of gross negligence, such as failing to ring the bell or give any notice of their approach, or running their train at the rate of twenty or thirty miles per hour." The degree of care to be used by a traveler in crossing a railroad is measured by the conditions surrounding the place of crossing; and where, by reason of obstructions, his view of the railway track is shut off, it is his duty to exercise a higher degree of care than if the track is open to view, and the precautions to be taken must be such as are calculated to inform him of the fact whether a train is approaching or not. In Patterson on Railway Accident Law the rule is stated as follows: “Sec. 177. Where the view of the line from the highway is obstructed, or the crossing is in other respects specially dangerous, it is the duty of the traveler to exercise a higher degree of care; and if he cannot, by looking and listening, satisfy himself that it is prudent to cross the line, he must stop, or he must adopt such other precautions as ought to be taken under the particular circumstances of the case. The supreme court of Wisconsin, in the case of Seefeld v. Railway Co., 70 Wis. 216, 35 N. W. Rep. 278,-very similar in its facts to the one at bar,--said: "The cases cited on behalf of the defendant to show that plaintiff should have stopped his team and listened for the expected train seem to us to come nearer this case in their facts than those cited to sustain the opposite view.” And, after referring to a number of cases, announced the rule as follows: "The rule to be deduced from these cases is this: If the view of a traveler on the highway approaching a railroad crossing is so obstructed that he cannot see an approaching train in time to stop his team before colliding with it, if he knows that a train is due at such crossing at or about such time, and if he is unable to hear the approaching train when his team is in motion, whether by reason of the force and direction of the wind or of noises in the vicinity, whether made by his own wagon or by other causes, ordinary care requires him to stop his team while he may do so, and listen for the train.” In the case of Railway Co. v. Stommel, (Ind. Sup.) 25 N. E. Rep. 863, it is said: "Where one approaching a railroad crossing neglects to avail himself of every opportunity to look and listen, and carelessly ven.

1

tures upon the track, and is injured, such Railway Co. v. Cranmer, 4 Colo. 524. No conduct is of itself sufficient to defeat a re- such state of facts exists in this case. The covery. If a railroad crossing is particularly uncontradicted evidence shows that the endangerous, and requires extraordinary effort gineer could not have seen the team in time to ascertain whether it is safe to attempt to avoid the collision, and it is not contemto pass over it, one familiar with the lo- plated by this instruction that such was the cality and danger must use care proportion- fact; but the gross negligence referred to ed to the probable danger.” To the same was in the failure to give the signals, and in effect are: Haas v. Railroad Co., 47 Mich. running the train at a rapid rate of speed. 401, 11 N. W. Rep. 216; Railroad Co. V. The instruction as modified is a misapplicaBeale, 73 Pa. St. 504; Whalen v. Railway tion of this principle upon the facts in this Co., (Sup.) 12 N. Y. Supp. 527; Merkle v. case, and was clearly error prejudicial to Kailroad Co., 49 N. J. Law, 473, 9 Atl. Rep. plaintiff in error. The judgment is reversed. 680; Railroad Co. v. Miller, 25 Mich. 274; and cause remanded for a new trial. Greenwood v. Railroad Co., 124 Pa. St. 572, 17 Atl. Rep. 188. We think that in the case at bar the plaintiff in error was entitled to the instruction as asked, and that the same CHICAGO, R. I. & P. R. CO. 7. NUNEY. as modified was clearly erroneous. The ques

(Supreme Court of Colorado. Oct. 2, 1893.) tion of contributory negligence does not de

RAILWAY COMPANIES - ACCIDENTS AT CROSSINGSpend upon what the defendant company

CONTRIBUTORY NEGLIGENCE-EFFECT. did or did not do, but upon what Nuney did

Gross negligence on the part of the railunder the circumstances. As stated in 2 road company does not excuse negligence on Rorer on Railroads, 1019: "Except in the

the part of one injured at a railroad crossing. courts of Georgia and Illinois, and possibly

Error to district court, Arapahoe county, Kansas, the doctrine of what is called 'con- Action by Edward Nuney against the Chitributory negligence' is holden in the courts | cago, Rock Island & Pacific Railroad Comof all the American states; also in the fed- pany for personal injuries. Judgment for eral courts, and in England. The principle plaintiff, and defendant brings error. Re upon which it rests is that if the plaintiff versed. suing for an injury has in any manner, by

Plaintiff's claim is based upon the same his own wrong, negligence, or want of or- facts shown in case No. 2,730, Railway Co. dinary and reasonable care, directly-that v. Crisman, 34 Pac. Rep. 286. is, proximately-contributed to the injury William Harrison, A. E. Pattison, and complained of, he cannot recover. As has Thomas H. Edsall, for plaintiff in error. been said by that eminent jurist Lord Ellen- Browne & Putnam, for defendant in error. borough, 'One person being in fault will not dispense with another's using ordinary care GODDARD, J. Error is specially predfor himself.'" "Failure of employes of a icated upon the refusal of the court to give railroad company in charge of a train ap- the following instruction as prayed for: proaching a crossing to sound the whistle “Before the plaintiff can recover he must and ring the bell, as required by statute, show (1) that the defendant was guilty of does not excuse want of care by one cross- negligence; (2) that Nuney was not guilty of ing the track, and does not enter into the negligence, and could not have avoided the question of contributory negligence on his collision by the use of ordinary care on his part." Railway Co. v. Stommel, supra. See, part, for, if he could have avoided the ac also, Schaefert v. Railway Co., 62 Iowa, 624, cident by the use of ordinary car, then it 17 N. W. Rep. 893; Railroad Co. v. Houston, is immaterial whether defendant was guilty 95 U. S. 697; Butterfield v. Railroad Corp., of negligence or not, and in such case plain92 Mass. 532; Havens v. Railway Co., 41 tiff cannot recover." The court gave it with N. Y. 230; Flemming v. Railroad Co., 49 these words inserted: "Unless such negliCal. 253; Ernst v. Railroad Co., 39 N. Y. 61. gence was gross." The instruction is ob

A careful examination of the adjudicated jectionable in so far as it cast the burden of cases on this subject satisfies us that the proof upon Nuney to show that he was not law is settled beyond dispute that negligence guilty of contributory negligence, but in on the part of a railroad company will not other respects correctly expressed the law. excuse a traveler approaching a crossing It was not refused, however, on that ground, from using proper care on his part to avoid | but given as modified. This modification was danger, and that there can be no recovery clearly erroneous, as applied to the facts of if he fails to do so, if such failure contrib- the case. As was said in the Case of Cris. utes to the injury. A qualification of this man, infra, that “negligence on the part of rule pertains only in cases where the rail- a railroad company will not excuse a travroad company has notice of the dangerous eler approaching a crossing from using situation of the party injured in time to proper care on his part to avoid danger, and avoid a collision by the exercise of ordinary that there can be no recovery if he fails to care, and is "guilty of such conduct as will do so, if such failure contributes to the inimply an intent or willingness to cause the in- jury. A qualification of this rule pertains Jury." Railway Co. v. Hunter, 33 Ind. 335; only in cases where the railroad company

has notice of the dangerous situation of the that on that day he received word from his party injured in time to avoid a collision by family, who resided at Salt Lake City, that the exercise of ordinary care, and is 'guilty several of his children were sick with diphof such conduct as will imply an intent or theria, and were quarantined; that, after he willingness to cause the injury.' No such quit work in the evening, it being about state of facts exists in this case." We think dark, and, being too late for defendant's the court also erred in refusing the follow- passenger train, he went to a freight train, ing instruction, asked by plaintiff in error: where he saw a man with a lantern, who "If Nuney's view of the railroad track, in told him that he was the conductor; that, the direction from which the train was ap- after giving this man a dollar to be allowed proaching, was obstructed to such an extent to ride on the train to Salt Lake City, he asas to prevent him from seeing the approach- sisted plaintiff into a box car, partially ing train from the wagon, then he was bound filled with brick, claiming that the caboose to use greater care than would have been was full; that in this car he rode to North required if the view had been unobstructed, Salt Lake, where the same man helped him and should, if necessary, have stopped the out and into the caboose; that after he was team, and listened for approaching trains, in the caboose the conductor and two other before driving on the crossing." Railway | employes came in, but made no objections Co. V. Crisman, 34 Pac. Rep. 286. In that to his being there; that, shortly after the case we held that this instruction as asked conductor and employes went out of the should have been given, and that, as given caboose, the switch engine ran freight cars therein, as modified, was erroneous. Under against it, without giving any signal, and the law as therein declared, this judgment with such force as to produce a violent must be reversed, and cause remanded for shock, which caused the injuries complained a new trial.

of; that, after the collision, the employes re-entered the caboose, and found the plaintiff lying on the floor, stunned and seriously

injured; that it had been the custom of de. EVERETT v. OREGON S. L. & U. N. RY.

fendant to carry passengers on freight trains, CO.

except on extra freight trains, and on these (Supreme Court of Utah. Aug. 30, 1893.)

passengers could be permitted to ride by the CARRIERS-WHO ARE PASSENGERS LIABILITY TO

train dispatcher, but plaintiff did not know TRESPASSER FOR GROSS NEGLIGENCE.

he was on an extra train; that the fare on 1. Where a person, believing he has a right to do so, rides on a freight train with the passenger trains from Ogden to Salt Lake consent of the conductor in charge, and, while City was $1.75, but plaintiff claims he did so riding, is injured through the negligence of

not know the fare on freight trains. It was the train men, the company is liable to him as

admitted on the trial that the engineer of a passenger, though such train be one which, by the rules of the company, was not allowed the switch engine and the other employes to carry passengers.

in the train, if present, would testify “that 2. Where plaintiff was injured through the

they were negligent in causing the train in gross negligence of defendant's trainmen, who had knowledge that he was on the train, de- question to strike against the caboose as viofendant is liable for the injury, even if the lently as it did." In view of the facts and plaintiff was a trespasser.

circumstances thus proved on the trial, the Appeal from district court, Salt Lake coun- court, in the course of its charge, instructty; C. S. Zane, Justice.

ed the jury as follows: "If you believe, Action for personal injuries by George Ev- from a preponderance of the evidence that erett against the Oregon Short Line & Utah the plaintiff was in the car, commonly called Northern Railway Company. Plaintiff had the 'caboose,' of the defendant, at North Salt judgment, and defendant appeals. Affirmed. Lake, and that he was there in good faith, Williams & Van Cott, for appellant Bar

and under circumstances authorizing him to low Ferguson, for respondent.

believe that he was there lawfully, and that

he had a right to ride in the caboose, and BARTCH, J.

that he was without fault, and that the deThe plaintiff in this case

fendant claims damages for personal injuries, al

was builty of negligence, which leged to have been received while a pas

caused the injury to him, then you should

find a verdict for the plaintiff. On the consenger on defendant's train at North Salt Lake. The jury rendered a verdict in his

trary, if you find that the plaintiff's wegllfavor for the sum of $4,500, and, upon judg.

gence in any degree contributed to the inment being entered for that amount, the de

jury, then you should find a verdict for the

defendant." fendant appealed to this court. The evidence shows substantially that the plaintiff

Counsel for appellant insist that the mate had been in the employ of the defendant, as

rial question in this case is as to whether section hand and section foreman, for a pe

plaintiff was a passenger, and that this inriod of about eight years, and on the day

struction, to the effect that if he was in the of the accident was so in its employ, as sec

caboose in good faith, and believed he was tion foreman, at the aty of Ogden, Utah;

lawfully there, and had a right to ride there,

etc., was erroneous, and presented an imma'leh aring denied.

terial issue to the jury. If it were conceded V.341.no.3-19

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