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rules and regulations of the society, was satis- position that the fund in this case should be factory to it, was a sufficient compliance with disposed of as provided in the by-laws of the its rules, regulations, and restrictions, and association in case the beneficiary named in was within the scope of its objects, as to as- the certificate should die before the member, sume, without its being so specified in its con- and the latter had made no further direction stitution, by-laws, or the certificate, that in as to its disposition. We do not think that case, before the death of the member, there any of them are applicable, under the facts should be a departure by the designated bene- of this case. Tyler v. Association, 145 Mass. ficiary from the privileged classes, and no 135, 13 N. E. 360, was upon a certificate isbeneficiary had been substituted, then the sued under a by-law which provided that, aftsame results should follow as upon the death er payment of the expenses of the funeral of the beneficiary before the insurance ma- and last sickness, "the balance should be tured, which results were explicitly set forth paid to the person or persons designated by in the by-laws,-a part of the contract? the member in his application for memberMight we not with much greater reason as- ship or last legal assignment, provided such sume, if we assume at all, that it was the

person or persons are heirs or members of intention, in such case, the insurance should decedent's family.” Here was a direct prohilapse, and the fund revert to the society? bition of payment to any person, even though

In some of these voluntary associations, designated, unless such person was at the similar in character to this, it is provided time of the death of the member an heir or a that, in case the beneficiary named in the cer- member of his family,-a case radically diftificate shall die or shall become incapacitat- ferent from the one at bar. Schonfield v. ed to take, then, in either event, the fund Turner (Tex. Sup.) 12 S. W. 627, 7 L. R. A. shall go to certain other parties or heirs. 189, was decided upon the ground that the There is not claimed to be any such provision designated beneficiary was not at the time in the by-laws of this association. Again, in of his designation, and never was, a party some it is provided that no benefits shall be capable of taking the insurance fund for his paid to any person unless such person comes Own use. This failing, it was held to be enwithin one of certain classes. There is no tirely consistent with the purposes of the such provision here. In others, the statute order to make the same disposition of the laws of the jurisdiction under which they are money that would have been made if he had organized or operate regulate the distribution been dead. In this case it was held to go to of the fund, or impose restrictions upon the so- the heirs of the member, as they existed at ciety in respect thereto. This is not the case the time of his death. The divorced wife here. The only requirement in this case, and was, of course, not an heir, and could take that by the laws of the association, is that nothing. In Keener v. Grand Lodge, 38 Mo. no certificate shall issue unless the benefi- App. 544, the beneficiary named in the cerciary be named, and that such beneficiary be tificate was not at the time of its issuance, within one of certain classes. It will be seen and never was, within any of the classes preat a glance that there is a wide distinction scribed by the constitution or laws of the orbetween a requirement that a certificate shall der as capable of receiving the insurance issue to only one of a certain class of persons, benefits, and, moreover, was not within a and one that payment can be made only to class prescribed by the statute under which one of a certain class. We do not know by the order was organized and acting, as capawhat authority we could read into this con- ble of receiving the benefits. In this case, tract matters not expressed in it directly or too, it will be observed, the association was indirectly. The words “die" and "death" are not contesting the payment. It acknowledgnot words of doubtful signification. They ed its liability, and paid the money into court have a fixed and definite meaning, and it for its distribution to the proper parties. The would, in our opinion, do violence to all rules court held, under these circumstances, that a of construction to say that the contracting certificate having issued, and there being only parties in this case contemplated some other a failure as to the beneficiary, the one nammeaning at the time when the contract was ed never having been competent to take it, entered into. According to the terms of the it was in such case within the purpose of the contract,-and in this we embrace and con- association to give the fund to the heirs of sider the language of the certificate, and the the member. The reasoning was that a cerlaws and rules of the association in force at tificate naming such a beneficiary was similar the time the contract was executed and sub- in its effects to one in which no beneficiary sequently enacted,—the only contingency, had been named, or one in which a compenamely, the death of the beneficiary named tent beneficiary had been designated by the in the certificate, the happening of which deceased member, but who, "with his knowlwould give the appellants, or any of them, edge, died before him." In such cases the any right to the fund in question, has never court held that a forfeiture would not be dehappened. We think, therefore, that the trial clared, and the heirs would take. Whether court did not err in its conclusions and in its the court was right or wrong in its conclujudgment in this respect.

sions is immaterial, because they do not apCounsel for appellants cite numerous au- ply to this case. Here a competent benefithorities which they claim to support their ciary was named, and she is yet living. In Rindge v. Society, 146 Mass. 286, 15 N. E. 628, was of a party at such time fully competent, it was held that the designation of benefi- under the laws and charter of the associaciaries in the certificate when issued was in- tion,' to be a beneficiary. In this connection valid, because in contravention of the statute it may be well to remark that in Chartrand v. under which the corporation was organized. Brace, supra, where there was, as in this case, The same is true of Shea v. Association, 160 a beneficiary certificate issued by the A. O. Mass. 289, 35 N. E. 855. Order of Railway U. W., the court said, “The association, so Conductors v. Koster, 55 Mo. App. 186, far as it is engaged in the business of life strongly relied upon by appellants, is not in insurance, must be treated in law as a mupoint. The court held, under the circum- tual life insurance company.” The supreme stances of the case presented, that the di- court of the United States, in considering a vorced wife was not entitled to receive the policy issued by a mutual company, said, “We fund, but did not say who was entitled to it, do not hesitate to say, however, that a policy nor what disposition should be made of it. taken out in good faith, and valid at its inThe only question in the case at bar neces- ception, is not avoided by the cessation of the sary to be determined is, have the appellants, insurable interest, unless such be the necesor any of them, a right, under the facts pre- sary effect of the provisions of the policy itsented, to the fund? If they have not, then self." Insurance Co. v. Schaefer, 94 U. S. the case is settled, so far as this appeal is 461, 24 L. Ed. 251. concerned. In such case the disposition of The conclusion that none of the appellants the fund is a question solely between appel- are entitled to receive the benefit fund setlee and the association, in which appellants tles this appeal. It is not necessary to discannot be heard, and in which they have no cuss or decide what right the appellee has to concern. Love v. Clune, 24 Colo. 237, 50 Pac. the fund, if any, nor the question as to 34, has no bearing upon the question to be de- whether the insurance lapsed by reason of termined in this case. There the chief ques. the beneficiary's departure before its maturition was whether a member insured in a mu- ty from the privileged classes, and thereupon tual benefit association might at his pleasure should revert to the order. The association change the beneficiary designated in the poli- is not here complaining, and is not before us cy, when the laws of the association were si- at all. It admits its liability to pay the monlent upon the subject. The court held that ey to somebody, has paid it into the trial in such case the greater number and better- court, and been dismissed from the suit. The reasoned authorities favored the rule that the questions suggested, if they are debatable at beneficiary named could not be displaced all, do not concern the appellants. The dewithout his or her consent. In that case the termination of them either way would not afperson who was attempted to be substituted fect their rights, under the conclusions which as a beneficiary was neither a member of we have reached. Under the views which decedent's family, nor an heir nor a relative, we have announced, we can only affirm the and did not come within any of the classes judgment, and this is accordingly done. Afenumerated in the charter of the associa- firmed, tion as capable of being beneficiaries of its bounty. For this additional reason the court BISSELL, P. J., not sitting. said that "the designation of her as a beneficiary was nugatory and ineffectual to nullify the former designation of the appellee."

(13 Colo. App. 543) Veither in terms nor upon principle does the

OLIVER v. DENVER TRAMWAY CO. opinion in this case settle or affect the ques- (Court of Appeals of Colorado. Nov. 13, 1899.) tion here at issue. The designation in the STREET RAILROADS-ACTION FOR PERSONAL substituted certificate was nugatory at and


OF COMPLAINT. from the time it was made.

A complaint, in an action against a streetIn their reply brief, counsel for appellants railway company, setting out an ordinance reurgently insist that the true rule applicable

quiring it to stop the car furthest from an into this case-the one now sustained by the

tersecting street, when two cars are approach

ing the intersection, so as not to prevent travel great weight of authority-is that laid down

thereon, and alleging that conceiving, under in the concluding clause of section 265 of the such ordinance, that an approaching car would latest edition of Bacon on Benefit Societies,

stop, plaintiff assumed it to be safe to cross the

track ahead of it, but the car, failing to slacken and which reads as follows: "It may be tak

its speed, collided with him, occasioning his inen as a settled rule of law, under recent de- jury; that the gripman saw plaintiff as he was cisions, that the designation of a person not

crossing the track, and by ordinary care might entitled to take under the laws of the society

have prevented the injury,-is not demurrable,

as showing plaintiff to have been so negligent or its charter does not invalidate the con

as to preclude his recovery, since, if he was tract, but only the designation, and the bene- negligent, the company was liable if the gripfit will go either as the laws of the society

man could have avoided the injury. provide in the case of the death of all the Error to district court, Arapahoe county. beneficiaries, or to the next of kin.” This in Action by Richard P. Oliver against the no sense militates against any position which Denver Tramway Company. From a judgwe have assumed, or any views which we ment for defendant, plaintiff brings error. :have advanced. In this case the designation Reversed.

This action for personal injuries has had near northwest corner of its intersection with somewhat of a peculiar history. As may be a public street known as 'Tenth Avenue,' to gathered from the abstract, issue was taken a point at or near the northeast corner of the on the original complaint, the case was par- intersection of said public streets. Plaintiff tially submitted to a jury, and, on a motion so attempted to cross Broadway in order to for a nonsuit, plaintiff was given leave to be carried for hire upon one of the cars of withdraw a juror, making a mistrial, and defendant approaching along Broadway from then took leave to amend his complaint. The the south, and in so attempting to cross plaincomplaint was several times amended and de- tiff was following the route of crossing usual murred to, and several motions filed to strike and customary for pedestrians on the line of out sundry sections of the pleading. The mo- the north side of Tenth avenue, from west tions to strike out were overruled, and the side, to east side of Broadway. While plaincomplaint permitted to stand as drafted. As tiff was so crossing Broadway, a car of dethus amended, the material portions of it are fendant, drawn by a cable, which cable was as follows: "Defendant at all times after operated by steam, was from the north apmentioned was a corporation, doing business proaching Tenth avenue at speed of about in Denver, Colo., as a common carrier of twelve miles per hour, upon the track which passengers for hire upon the public streets the plaintiff was crossing. Plaintiff, when of said city, and was, on December 10, 1892, near last said track, saw approaching from operating its street railway upon a public the north the car of the defendant, which, as street of said city (Broadway), and was run- after set out, collided with plaintiff. Said ning its cars thereon. A long time prior to car was under the control of conductor and said 10th December, the city council of Den- gripman, servants and employés of defendver had duly passed an ordinance [title set ant. It was in the nighttime when plaintiff out), which ordinance was signed and ap- attempted to cross Broadway. Night was proved by the mayor of Denver, September dark. Plaintiff could not and did not esti8, 1890, and was published in a newspaper of mate the distance at which said car then and said Denver, of general circulation, Septem- there was from plaintiff. Gripman of said ber 10, 1890, within ten days after its pas- car wholly failed, when approaching north sage. Section 1 of said ordinance is: 'Section side of Tenth avenue, to ring or sound any 1. Every street car or train of cars, run or gong or bell within a distance not exceeding operated in the city of Denver, shall be pro- sixty feet from north side of Tenth avenue. vided with at least one gong or bell to be At all times while the said car was within a used as a signal or warning of the approach distance not exceeding sixty feet from north of such car or train, and it shall be the duty side of Tenth avenue, plaintiff was in a posiof the driver, gripman, motorneer, or person tion of peril, and said gripman saw, or in controlling the motive power on any street the exercise of due care could have seen, that car or train, when approaching any street plaintiff was in a perilous position, and said crossing, to ring or sound such gong or bell gripman, by the exercise of due care, could within a distance not exceeding sixty feet have prevented and entirely avoided the colfrom such crossing, and it shall also be the lision hereinafter set out. The car, as aforeduty of such driver, gripman, motorneer, or said, approaching from the north, and anothperson controlling the motive power of any er car of the defendant, were each approachstreet car to sound or ring such gong or bell ing the other from opposite directions along

The car approaching from the believe that there is danger of such car or north was furthest from Tenth avenue, and train colliding with, or running against any the plaintiff so knew; and misled by said failperson, vehicle, or any animal or obstruc- ure of said gripman to ring or sound any tion.' Section 3 of said ordinance is: 'Sec. gong or bell, and believing that last said car 3. Whenever any street car or trains of cars, would be brought to a stop at such point on running upon any line 'or lines now estab- the north side of Tenth avenue, and in such lished, or that may hereafter be established, manner as not to impede or obstruct travel shall approach each other from opposite di- on Tenth avenue, and plaintiff knowing it rections, it shall be unlawful for the person was the custom of defendant to stop its cars controlling said car or trains or either of before crossing Tenth avenue, and before the them, to permit said cars or trains so ap- line of Tenth avenue was reached, whenever proaching each other to pass upon any inter- another car was approaching from an opposecting street, but the car or train furthest site direction, as by the provisions of said from said intersecting street shall come to a section 3 of said ordinance they were requirfull stop at such point and in such manner ed to do, as the plaintiff knew, then upon his as not to impede or obstruct travel upon knowledge of said custom of defendant to such intersecting street, and so to remain un- stop its cars at sạid point, before crossing, til the approaching car or train shall have en- and of their duty so to do, and fully believtirely passed.' Sections 1 and 3 of said ordi- ing that they would so stop the said car, nance were each of them in full force and plaintiff, without fault on his part, proceeded effect on 10th December, 1892. On said 10th to go upon, with intent to cross over, the December, plaintiff, a pedestrian, attempted track along which said car from the north to cross the said public street from, at, or was approaching. But said car failed to come

whenever such person shall have reason to Broadway.

to a full stop on the north side of Tenth his own negligence contributed to the injury, avenue, and failed to abate its speed in any unless, of course, as will be subsequently degree until after the collision with plaintiff, seen, the case is brought within the exception hereinafter set out. Defendant and its em- to this rule. It seems to be well settled that ployés aforesaid so negligently managed and the defendant may take advantage of this operated said car so approaching from the defense, either where he proves it affirmanorth that plaintiff, without fault of his own, tively, or when it appears from the plaintiff's was violently struck thereby, while attempt- own proof, or where the plaintiff has so ing to cross the track upon which said car pleaded his cause of action that it may be was approaching, and was thrown to the gathered therefrom his own negligence conground and under said car, and was rolled tributed materially to the injury of which upon the ground and under said car; whereby he complains, and his case is not stated withplaintiff was greatly injured. Right ankle in any exception to the doctrine. 1 Thomp. of plaintiff was broken and fractured, liga- Neg.. p. 449; Railway Co. v. Richards, 59 ments of plaintiff's right foot were broken, Tex. 373. As we look at the record, this is three of plaintiff's ribs were broken and probably the proposition on which the whole fractured, and plaintiff was otherwise injur- case turns, and it becomes our duty to ased, wounded, and cut, insomuch that he then certain whether, on the record as it stands, became sick, lame, and sore, and so con- the court correctly resolved this question. tinues to present time, and to present time has Matters of negligence, whether original or been prevented from attending to his busi- contributory, are equally matters of proof. cess, and was forced to expend, for medical Either must be shown by the preponderance attendance, medicine, and nursing, a large of proof, and the question whether the plainsum of money, to wit, five hundred dollars." tiff's negligence so far contributed to the inThe demurrer to this complaint, as thus jury as to amount to its proximate cause is as amended, was sustained; the plaintiff elect- much a question for the jury as is the other ed to stand by his pleading; judgment was fundamental inquiry, whether the negligence entered accordingly; and to reverse this judg- of the defendant company occasioned the inment thus entered the plaintiff prosecutes er- jury. Both must be settled by the evidence. ror.

Railroad Co. v. Ryan, 17 Colo. 98, 28 Pac. 79;

Railway Co. v. Ives, 141 U. S. 408, 12 Sup. John G. Sears, William B. Tebbetts, and

Ct. 679, 36 L. Ed. 485. Accepting the allegaEllery Stowell, for plaintiff in error. A. M.

tions of the complaint, there is scarcely room Stevenson, for defendant in error.

for debate about the question of the negli

gence of the defendant company. It failed to BISSELL, P. J. (after stating the facts). observe the requirements of the ordinances The questions presented by the demurrer are concerning the running of the cars on Broadnot easy of solution. The legal rules which way at the time of the accident. The ordimust be followed by the pleader in stating nance is set out, the violations alleged, and, his cause of action, and those which must be if they are sustained by proof, the negliobserved in the trial of this class of cases, gence of the company would thereby be esmay possibly be deemed fairly well settled; tablished, regardless of any other fact which yet, after all, no case in its facts is so en- might show negligence. Railway Co. tirely plain that the court can be absolutely Ryan, supra; Milling Co. v. Dowell, 17 Colo. certain about the application of those general | 376, 30 Pac. 68. The same doctrine has been principles by which such pleadings and such announced by this court in a recent case. trials are governed. There is probably less Railroad Co. v. Divelbliss (Colo. App.) 57 Pac. difficulty in reaching a conclusion where the 743, cause has been tried, and the facts and cir- Tren with a strict enforcement of the gencumstances of the case are before the court, eral rule, that a pleading must be taken than when, as in the present, it is simply a most strongly against the pleader, there can matter of pleading. It is generally true a be no doubt the negligence of the company pleader ought to be able, if he has a case at was sufficiently charged. The difficult quesall, to state it so that his complaint shall not | tion still remains whether the plaintiff pleadbe open to objections presented by a general ed himself out of court by alleging facts tenddemurrer. Doubtless it was the object of ing to show that his own negligence concounsel in the present controversy to state tributed to the injury. As a general propothe case in such fashion that his right to sition, when there is any uncertainty either maintain the action could be definitely set- as to the existence of negligence on the part tled. We must be permitted to doubt the ex- of the defendant or contributory negligence pediency of the procedure, and we do not in- on the part of the plaintiff, either question is tend, except in so far as we may be compelled one of fact, to be determined by the jury, in the determination of the error, to decide and not one of law, for the decision of the whether the plaintiff has or has not a case, court. This is true whether the difficulty or may or may not have a case when his springs from the conflict in the testimony, or proof shall come in. One of the most general whether the whole thing rests upon undisputdoctrines pertaining to the law of negligence ed facts, when in this latter case reasonable is that the plaintiff may not recover where men might differ in the inferences which they

59 P.-6


would draw from the facts as stated. This is the general conclusion of all the cases, and, though put "differently in the various decisions, the rule is so clear in that particular there is no dispute about it. As some put it, there must not be room for debate respecting the inference which must be drawn from the testimony; others, that the inferences must be indisputable, and there must be no escape from the conclusion which reasonable men would draw from a consideration of the circumstances. However it is put, and in whatever form, the result is the same. Railroad Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642; Hall v. Railway Co., 13 Utah, 243, 44 Pac. 1046; Railway Co. v. Martin, 48 Neb. 65, 66 N. W. 1007; Brotherton v. Improvement Co., 48 Neb. 563, 67 Y. W. 479; Traction Co. v. Scott, 58 N. J. Law, 682, 34 Atl. 1094; Garrity v. Railway Co., 112 Mich. 369, 70 N. W. 1018.

As the pleader states his case, the plaintiff, coming eastward on Tenth avenue on the north side of the street, attempted to cross Broadway to reach one of the cars belonging to the defendant company, and going northward along Broadway. To reach the car, he was compelled to cross the west track of the company, along which there was coming from the north another car, bound southward, which had not yet reached or crossed Tenth avenue. The plaintiff alleges that, under the ordinances and according to the universal practice and custom of the company, to his knowledge, which matters were then in his consideration, the tramway company were bound to sound a gong to warn people of their intention to cross the street, and were likewise bound to stop the south-bound car when it reached Tenth avenue, that there might not be two cars crossing Tenth avenue, while passing along Broadway, at the same time. This averment is further sustained by an allegation to the effect that the north-bound car was nearer the crossing than the south-bound one, and therefore had the right of way across Tenth avenue, and the plaintiff, relying on those facts, attempted to cross the west track to take the car bound north. The exact distance of the southbound car from the crossing the plaintiff could not estimate, but conceiving, under the ordinances, that the car would stop, he assumed it to be safe to cross it, and took the chances, but the car, failing to slacken its speed, collided with him, and occasioned the injury. There is in this allegation a suggestion of negligence which, if developed by proof, might warrant the jury to conclude the plaintiff's own act so materially contributed to the injury that he could not recover. We are not in a situation to either decide this question or strongly intimate our opinion about it. It is still true that whatever suggestion of contributory negligence is thus expressed in the plea is wholly obviated, as a matter of pleading, by what follows.

There is a principle of the law of negli

gence as well established as that to which we have already referred. This is the exception before adverted to. The plaintiff is not necessarily debarred recovery because he has been guilty of a negligence which contributed to the injury. He may have been negligent and careless, and put himself in a place of danger; yet, if the defendant, by the exercise of reasonable care, could have still avoided the injury, he was bound to avert the disaster. No principle of the law of neg. ligence is better established than this, and the declarations of the supreme court of the United States on this subject have been followed by both of the appellate courts of the state. Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Transit Co. v. Dwyer, 3 Colo. App. 408, 33 Pac. 815; Id., . 20 Colo. 132, 36 Pac. 1106.

It remains, then, to be determined whether the pleader has so far stated the exception as to entitle him to offer proof. He avers the gripman saw him as he was crossing the track, or by the exercise of due care might have seen him and his peril, and by the exercise of care could have prevented the injury. This is the excuse presented by the pleader for the contributory negligence which was apparently pleaded, and, if established by sufficient and competent proof, would bring the case within the exception. If it be conceded the plaintiff was negligent in attempting to cross the track, yet it must likewise be admitted, if the gripman saw him, and by the exercise of care could have prevented the accident, he was bound to apply the brakes, and save the plaintiff, even though he had negligently put himself in this place of danger. What the fact may be, what the proof may show, it is impossible to state, nor do we desire to go so far as to conclude the defendant from reraising the question when the proof is offered, nor do we intend to authoritatively declare that the plaintiff has a right of action which can be maintained. We can only say, if his proof corresponds with his complaint, it is possible for him to bring his case within the exception which the decisions establish.

Counsel have indulged in a good deal of discussion in their various briefs respecting the obligations of street-railway companies, the duties of foot passengers who attempt to cross the street where the rapid-transit system is in operation, and we have been cited to a good many cases from various courts which lay down the rule that it is absolute negligence for parties to attempt to cross the tracks of steam railways without stopping, looking, and taking all due precaution to ascertain whether a train is coming and in dangerous proximity. We do not deem it necessary to discuss this question, nor to express or to quote the general rules which prevail. The facts are not before us, and it would be dangerous to attempt to establish a precedent by laying down the formula, or prescribing rules, as learned courts have sometimes done,

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