Sidebilder
PDF

Walter C. Mitchell. From a judgment for plaintiff, defendant appeals. Affirmed.

Laura Tilden Ray, for appellant. John H. Gabriel, for appellee.

STEELE, C. J. In an action to quiet title to a certain lot in the city and county of Denver, plaintiff at the trial produced a WitneSS, who testified that he had Collected the rents for the period of eight or nine years; that the plaintiff had been in the actual posSession of the premises continually during the year 1904 prior to the bringing of the Suit, and introduced a deed from E. G. TroWbridge conveying all his right, title, and interest in the property to the plaintiff, and then rested his case. The defendant, in Support of the issue that he was the owner and entitled to the possession, offered a treasurer's deed to the same premises. The court refused to admit the deed in evidence, and found the iSSues in favor of the plaintiff, ordered the treasurer's deed canceled, and, as a condition precedent to the entering of final judgment, required the plaintiff to pay into court, for the use of defendant, the sum of $55. From this judgment the defendant appealed.

The points discussed in the appellant's brief are, that: (1) “The motion for nonsuit Should have been granted, because the plaintiff had failed to ShOW that he Was the OWner of the premises.” An action to quiet title may be maintained by a perSon in possession, claiming ownership under color of title. (2) “That the treasurer’s deed should not have been refused as evidence.” The defendant having relied upon the treasurer's deed as a muniment of title, the burden was upon him to show a compliance with the law, except as to such matters as by the deed itself are made prima facie evidence by section 3902, 2 Mills Ann. St. It, therefore, was incumbent upon him to show: (1) The assessed value of the property, and, if $500 or over, that notice of the time of redemption had been given as required by the Statute. Section 3902a (3926j) 3 Mills Ann. St. (2) Whether at the time the notice was required to be given the land WaS Occupied or Vacant, and, if Occupied, that he had served notice upon the occupant or occupants, as well as upon the other persons described in the statute. The defendant failed to Show that the assessed valuation Was under $500, and failed to show that the premises were vacant and unoccupied. The treasurer's deed, therefore, was not admissible. Richards v. Beggs, 31 Colo. 186, 72 Pac. 1077; Treasury T. W. & R. CO. W. Gregory, 38 Colo. 212, 88 Pac. 445.

* No prejudicial error appearing in the rec

ord, the judgment is affirmed.

Judgment affirmed.

WHITE and BAILEY, J.J., concur.

DAVIS V. PEOPLE ex rel. TOWN OF BRUSH. (Supreme Court of Colorado. Dec. 6, 1909.) 1. CRIMINAL LAW (§ 1042*)—APPEAL-PRESENTATION OF QUESTIONS IN LOWER COURT. The objection that a judgment that defendant, convicted of violating town ordinances, stand committed till his fine is paid, is uncertain and unintelligible because the place of commitment is not named, when not made in the trial court, will not be considered on appeal. [Ed. Note:-For other cases, see Criminal Law, Cent. Dig. $2650; Dec. Dig. § 1042.*] 2. MUNICIPAL CORPORATIONs (§ 643*)—VIoLATION OF ORDINANCES-PROSECUTION.—JUDGMENT-EFFECT of APPEAL BoND. .,, . A judgment that defendant stand committed till his fine for violating town ordinances is paid is proper, though the fine is secured by an approved appeal bond when the judgment is rendered. [Ed. Note—For other cases, see Municipal #". Cent. Dig. § 1416; Dec. Dig. §

[blocks in formation]

STEELE, C. J. The trial Of the defendant in the county court on appeal from the police magistrate's court, resulted in his conViction. He was fined the sum of $50 and Costs for the Violation of the Ordinances of the town of Brush. In the judgment it is Ordered that the defendant Stand committed until the fine is paid. Defendant appealed to the Court of Appeals.

The aSSignment of error is: That the court erred in rendering and entering judgment against the appellant that he stand commit- . ted until the fine and costs were paid: (1) Because the fine was secured by an approved appeal bond at the time the judgment was rendered; and (2) because the judgment is uncertain and unintelligible.

There is no bill of exceptions. The objections are that because an appeal bond had been approved, the court should not have ordered defendant committed until the payment of the fine, and that as no place of imprisonment was mentioned in the judgment, it is uncertain and unintelligible. The court would probably have designated one of the places mentioned in the statute, if his attention had been called to the Omission,

but no such objection was made, and we

shall not consider it here. Upon the au

thority of Saner v. People, 17 Colo. App. 307,

69 Pac. 76, the court properly ordering that

the defendant be committed upon default in

payment of the fine, the judgment is affirmed. Judgment affirmed.

GABBERT and HILL, J.J., concur.

CRESCENT MILL & ELEVATOR CO.

(Supreme Court of Colorado. Dec. 6, 1909.)

1. APPEAL AND ERRoR (§ 113*) – QUESTIONS REVIEWABLE – REFUSAL TO SET ASIDE DEFAULT JUDGMENT. The Supreme Court may review the refusal to set aside a default judgment where the record of the proceedings culminating in the judgment and those subsequent thereto are brought up for review. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. $ 766; Dec. Dig. § 113.*] 2. JUDGMENT (§ 143*) – DEFAULT – SETTING ASIDE—GROUNDS. Where counsel for defendant was not present in the county court on the day fixed for the trial of the cause, but relied on the statements of employés in the clerk’s office that the cause might not be reached, and two judges were trying causes on the docket, and the cause was transferred from one judge to the other, who rendered default judgment, the refusal to set aside the judgment was not an abuse of the court’s discretion. [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 281, 282; Dec. Dig. § 143.*]

Appeal from County Court, City and County of Denver; Chas. McCall, Judge.

Action by the Crescent Mill & Elevator Company against W. G. Thompson. From an Order denying a motion to Set aside a default judgment, defendant appeals. Affirmed.

R. H. Gilmore, for appellant. Rogers, Ellis & Johnson, for appellee.

THOMPSON v.

STEELE, C. J. The defendant not appearing in the justice's court, default judgment was entered against him. He appealed to the county Court. The County Court fixed February 1, 1907, at 9:30 o'clock, as the time of the trial. On that day the defendant not appearing, the plaintiff took judgment. On February 4th following, the defendant filed his motion to Set aside the judgment. The motion was denied and the defendant appealed to this court.

We are authorized to review the action of the trial court in declining to Set aside the judgment when, as in this case, the record of the proceedings culminating in the judgment, as well as those subsequent thereto, are brought here for review. The affidavit in support of the motion to vacate the judgment, sets forth, in substance, that the defendant did not know that the Case Was Set for trial; that on the day of the trial he was pursuing his usual vocation; that he was informed by his attorney that the attorney had communicated by telephone with an employé in the office of the clerk of the county court, and was informed that the case would probably not be tried on February 1st;

that the plaintiff had caused the case to be Set before Judge McCall's division and was on the board in that division; that affiant WaS informed that the Case Was transferred from Judge Lindsey's division without notice to affiant's attorney, and called up in that division, and default taken. Nothing appears in the record to advise uS upon What ground the court based his decision denying the motion to set aside the judgment. We observe, however, that the affidavit contains no statement based upon the affiant's knowledge, except that he was engaged in the pursuit of his usual vocation On February 1st, and did not know that the case had been set for trial for that day. Because of this, the court might have properly rejected the affidavit and denied the motion, but We Shall assume that it has been established by proof that the cause Was Set for trial for February 1st; that some one connected With the clerk’s Office had notified counsel that probably the case would not be reached; that the title of the case was upon the calendar for February 1st in the courtroom presided over by one person, and that, Without notice to the defendant, Or his Counsel, the cause was heard in a different room, and before another judge. The fact remains, however, that neither defendant nor his counsel appeared before the county court on that day prepared to try the cause. The cause was regularly set for trial. It is the duty of counsel to appear before the court on the day his case is to be tried, and to remain in the Courtroom until excused by the judge. He must not rely upon the statements of the employés of the clerk's office that his case may not be reached. The judge has abSOlute COntrol Of the Calendar of his court. He may try the cases in the Order in which they appear or he may disregard the calendar. This is especially true of the County Court Where the judge is authorized to call to his aid the judge of another court; and when two judges are trying the causes on the docket of the county court, We know of no Valid objection, there being no rule of court providing a different procedure, to transferring causes from One to another Without notice to COunSel. If COunSei. had been present on the day fixed for the trial Of the Cause, the Case Could not have been transferred without his knowledge; and as We cannot Say that the court abused his discretion in declining to Set aside his judgment, it will be affirmed. Judgment affirmed.

CAMPBELL and MUSSER, J.J., concur.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

LAURY V. NORTHERN PAC. TERMINAL CO. (Supreme Court of Oregon. Jan. 4, 1910.) 1. RAILROADS (§ 355*) OCCUPATION OF | STREET – RIGHTS oE PUBLIC – CARE REQUIRED. The public has an equal right with a railroad company to the free use of a highway upon which the railroad track is laid, and the railroad company will not be permitted to omit any reasonable duty that may tend to the safety of the public upon such street. [Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1221; Dec. Dig. § 355.*] 2. RAILROADS (§ 400*)—INJURIES TO PERSON ON TRACK—EVIDENCE—QUESTION FOR JURY. Evidence in an action for injuries received while crossing a railroad track operated on a street held sufficient to take the case to the jury on the issue of negligence. [Ed. Note:-For other cases, see Railroads, Cent. Dig. §§ 1365–1367; Dec. Dig. $400.*]

3. RAILROADs (§ 383*)—INJURIES TO PERSON ON TRACK–CONTRIBUTORY NEGLIGENCE. Plaintiff was injured by being run over by a car while crossing a street on which the railroad was being operated. It was dark, and the car was being backed by an engine which was also backing. There was no light displayed at the rear of the car, and no switchman to give warning of its approach, but the company claimed that the bell was rung. Held that, in order to charge plaintiff with contributory negligence, it must be shown that she heard the bell.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1307; Dec. Dig. § 383.*]

Appeal from Circuit Court, Multnomah County; J. B. Cleland, Judge.

Action by Stella Laury against the Northern Pacific Terminal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action by Stella Laury against the Northern Pacific Terminal Company to recover damages for a personal injury. The complaint avers, in effect, that the defendant is a corporation engaged in switching engines and cars in terminal yards controlled by it in Portland; that one of its tracks is laid along North Front Street, a public highway in that city; that on October 25, 1907, while the plaintiff WaS passing along and across such street, the defendant, without giving her any warning of the approach of a car, and without having any person in charge thereof, ran it upon her, throwing her upon and forcing her along the track until the Wheels Of the car ran Over and Crushed One of her lower limbs, thereby damaging her in a stated Sum. The answer denies the material allegations of the complaint, and avers that the injury of which the plaintiff complains was entirely due to her own carelessness, setting forth the particulars thereof. The reply puts in issue the allegations of new matter in the anSWer, and, the cause having been tried, a judgment was rendered against the defendant in the sum of $7,500, from which it appeals.

J. M. Gearin, for appellant. A. S. Bennett, for respondent.

MOORE, C. J. (after stating the facts as above). It is maintained that errors were Committed in denying a motion for a judgment of nonsuit, and in refusing to direct a verdict for the defendant, to which rulings of the court exceptions were taken. As these propositions substantially embody the same legal principle, they will be treated as a single question, to determine which the testimony relating to the alleged negligence Of the defendant Will be reviewed.

The plaintiff, on October 25, 1907, the day She was hurt, had been employed in Portland at the factory of the American Can Company, located on the northerly side of North Front street, which highway at this place extends north about 48° west. In the center Of that Street is laid One of the defendant’s railroad tracks, and connected therewith by a switch, about 100 feet easterly of the factory, is a spur track which curves northerly to and runs parallel With that building. Fourteenth street extends due north and terminates at NOrth Front Street, and from the east line Of the former highway at its junction with and at a right angle to the latter street extends a plank Walk parallel to and connecting with the easterly side of a passageway, about 10 feet Wide, at that end of the can factory, used by the employés as an entrance thereto. There Were employed by the American Can Company, on October 25, 1907, about 50 men and as many women, who ceased working on that date at 5:30 p.m., and, after turning in their time checks and obtaining their wraps, they passed out at the easterly end Of the factory, thence along the passageway to North Front street, where they found, standing on the spur track, a furniture car, the then westerly end of which obstructed a part of the route. A locomotive headed Southeast also stood, at that time, on the spur track nearer the switch, but whether Or not a coupling had then been made is disputed. After several of the can company's employés had safely passed over the unimpeded portion of the crossing, the engine pushed the car back until it entirely covered the space occupied by the passageway. While the car was thus moving, two young women, Teresa Schoener and Mary Heitzenreter, who worked in the can factory, were in the center of the spur track, immediately in front of the car, whereupon a switchman, standing on the ground, seeing them and realizing their imminent danger, gave a signal with his lantern, causing the engine to be halted. Before the signal was given, however, Mrs. Lillie Larmon, another employé, in attempting to cross the track, was struck by the car, but her husband, noticing her peril, rescued her from danger. The plaintiff quit work at the time Stated, but in a few minutes thereafter discovered that her pocketbook had been left in the room in Which she had been engaged, whereupon she returned and obtained the purse. She then passed Over the Walk to the spur track where she found the furniture car entirely obstructing the passageway, and not knowing that her associates had been endangered by the car, which then was stationary, she attempted to pass around the westerly end of it and within a few feet therefrom. When She Was about in the middle of the track the car was again moved slowly backwards, striking, prostrating, and rolling or pushing her along the track until the forward wheels on the opposite side passed over one of her lower limbs, crushing it and necessitating amputation below the knee. The plaintiff, as a witness in her own behalf, testified that When She thus came dOWn the paSSageWay, She Stopped and looked and Iistened before attempting to pass over the track; that she then saw the engine headed SOutheast and not attached to the furniture car; that no bell was rung or whistle sounded, nor was any servant of the defendant present to Warn her that the car Was about to be moved in either direction; and that thinking it was safe to cross she attempted to do SO, When the Car Was backed, injuring her in the manner indicated. Several witnesses who appeared for the plaintiff at the trial indirectly corroborated her testimony by stating that they did not hear any bell or whistle prior to the injury. The yard Switchman Who Saw the two young Women When they were so nearly caught by the car testified that he chided them for their carelessness, and further Stated that the bell On the engine Was COnStantly rung until after the plaintiff was hurt, which latter declaration is corroborated by the other employés of the defendant who were then engaged at that place. Mrs. Larmon testified that after the two young Women crossed the track this switchman turned his back to the car and joked with them, and for that reason he did not observe the plaintiff until his attention was attracted by the Outcry of herself and otherS. It appears that an electric lamp Was SuSpended over the railroad track some distance northwest of the furniture car, but its rays evidently did not illumine the track at Or near the paSSageWay, for nearly all the defendant's employés who were engaged at that place when the injury occurred testified that it was dark. J. Braun, the fireman then in the engine, in answer to the question, “Did you see the people that came out of the can company?” replied, “No; it was dark, I could not see them.” It is not alleged in the complaint that a public crossing is maintained at the juncture of Fourteenth and North Front streets, but,

has been brought up by defendant, it is evident that the walk hereinbefore mentioned was built to accommodate travel, and having been laid across a public thoroughfare its existence was thus clearly indicated on the ground, calling attention thereto and requiring of the defendant a greater degree of care and watchfulness here than is usually demanded When moving a train along an Ordinary highway. Whether or not the plank walk may be regarded as a public crossing is immaterial, for as the accident happened westerly thereof, but on a city street, where the defendant is required to exercise a very high degree of care in Operating its engines and cars, it will not be permitted to omit with impunity any reasonable duty that may tend to the safety of the public, which has an equal right With the defendant to the free use of the highway. Chicago, Burlington & Quincy R. R. Co. v. Stumps, 69 Ill. 409. “It is now a well-recognized doctrine that railroad companies,” says Mr. Justice McEnry in Curley v. Illinois Central Railroad Company, 40 La. Ann. 810, 816, 6 South. 105, “are required to exercise extraordinary precautions for the protection of the public in the management of their trains running through the streets of a populous city.” Assuming the plaintiff’s theory to be true, as outlined by her testimony, that after darkness had set in the bell was not rung or the whistle sounded when the car was backed Over the crossing and along the street in a city like Portland, without displaying a light Or posting a SWitchman at or on the approaching end of the car in Order that travelers Would be Warned of any peril, and so that this guard could have signaled the engineer and applied the brakes in case of danger, thus avoiding injury to persons on the track, were facts from which the jury could determine the degree of care exercised by the defendant at the time and place mentioned. The testimony given on behalf of the plaintiff, though disputed by the defendant, is to the effect that at the time she was injured the SWitchman was not giving any attention to the moving of the car, but had turned his back thereto, and was jesting with the two young women who were so nearly run over. Mrs. Larmon, referring to such neglect of duty, testified that she advised these young Women, to Whom the SWitchman Was then talking, to tell him to mind his own business. The failure of the defendant to give the necessary Warning Signal, as asserted by plaintiff and her Witnesses, or to station a Watchman at the CrOSSing, and the carelessness of the SWitchman as above Outlined, When the want of sufficient light made the movement of the car obscure, and its slow motion probably rendered its approach almost noiseless, Were circumstances tending to Show a lack of ordinary care, from which negligence. might have been inferred, which inattention authorized a Submission of the CauSe to the shows that no error was committed in refusing to direct a verdict for the defendant. The court, having declined to give an in

struction requested by defendant's counsel,

an exception was taken to the refusal to charge the jury as follows: “If you believe from the evidence that at the time plaintiff started to cross the railroad track of defendant the car with locomotive attached was at rest, and the defendant previous to starting said car caused the bell on the engine to be rung as a notice that said car was about to move, but that notwithstanding Such ringing of the bell the plaintiff started to cross said track in front of said car and so close to said car that she was struck and knocked down as described in the testimony, I charge you that such act of plaintiff in attempting to cross said track in such close proximity to said car was an act of carelessness on her part which would prevent her recovering in this action, and your verdict must be for the defendant.” The theory of plaintiff's counsel, as evidenced by the testimony sought to be elicited at the trial, is that the engine Was run forward southeast on North Front Street over the switch mentioned, and thence backed on the spur track to where the furniture car stood; that the first attempt to connect the engine and car, which was made when the two young women were endangered, proved unsuccessful because the automatic couplers were not properly opposed to each other in consequence of the curvature of the line of railway at that place; and that when the plaintiff reached the spur track the engine and car were stationary and unconnected, but in making the Second attempt to couple them she was injured. It is conceded that the locomotive and car were at rest, as indicated in the request for the instruction, but nearly every other important fact Stated therein is disputed. Taking for granted that none of the facts so controverted are assumed in the request, and that the phrase “if you believe” is understood as limiting each clause, it will be seen that the ringing of the engine bell is the important incident, which is undertaken to be emphasized by the language employed. A noted author in discussing the obligations devolving upon railroad companies says: “The danger to the public at crossings or other places where the public have a right to be in common with the railway company, of backing its cars without having a man standing on the foremost car to look out, to give warnings to the engineer and to the endangered traveler, and to apply the brake, is SO obvious as not to require discussion.” Thomp. Neg. § 1571. In Bowles v. Chesapeake & Ohio Ry. Co., 61 W. Va. 272, 57 S. E. 131, a headnote is as follows: “It is negligence per se to back a train on a dark night over a public railroad crossing without warning, by blowing a whistle or ringing a bell or guard or light on the advancing

means to warn travelers of danger, Such means as will be equally efficient as the bell or whistle warning in the case of an advaucing unreversed train.” In Union Pacific Railroad Company v. Connolly, 77 Neb. 254, 269, 109 N. W. 368, 374, the defendant in error having recovered $27,500 as damages for the loss of his feet, which were severed by the backing at night of an engine and four Or six cars Over him at a CrOSSing, the judgment was affirmed on appeal, the court saying: “That the rear car of that portion of the train displayed no lights, and that no person was stationed thereon, or at the crossing, to give warning of its approach to the crossing, are facts conclusively established by the evidence and practically conceded. The accident occurred in a populous community and Within the limits of a considerable city. It occurred in the nighttime, and at a crossing in common use at all hours, and where, as we have seen, the defendant company was charged with the duty of exercising reasonable care to avoid injury to those crossing its tracks. It is true, it seems to be conceded that the bell was rung and the whistle sounded to give warning that the train was moving. But the mere fact that the statute requiring such warnings was complied with does not of itself show that the defendant had discharged its full duty to those using the crossing. It was bound to use reasonable care not to endanger those who might be lawfully upon its tracks at the Crossing, and Whether, in View of the time, place, and circumstances, precautions in addition to those prescribed by the statute Were required, was a question for the jury. * * * The crossing was in common use day and night. It was across tracks in conStant use, and in a populous and busy community. That due care required more than ringing the bell and sounding the whistle to give warning of a freight train backing toWard and over such crossing in the nighttime is certainly not an unreasonable inference in View of all the facts and circumstances.” In the case at bar if, in the darkness, the light of the locomotive had been directed towards the plaintiff and no intervening object had obscured its gleams, the ringing of the bell, whether or not she heard it, might possibly have afforded such warning of the contemplated movement of the engine as the necessity demanded, for the illumination Should have been Sufficient to attract her attention, if she had given any heed thereto. When, however, the locomotive was headed from her, and, as She claims, not coupled to the furniture car which intervened, and there was no light or switchman thereon to Warn her in the darkneSS that the car Was to be backed, it was essential that she should have heard the bell, if it was rung, in order to charge her With contributory negligence in risking her life by attempting to cross the track. The instruction requested does not

« ForrigeFortsett »