Historical Perspectives
| Publication year | 2023 |
| Pages | 20 |
July 2023
Are Runaway Boxcars Still a "Train" And Other Interesting Questions
BY FRANK GIBBARD
Before workers' compensation laws were adopted in Colorado, injured workers faced significant hurdles to recovery for their injuries through tort actions brought in the Colorado courts. One obstacle was the "fellow servant rule," which barred recovery where the injury or death could be attributed to a coworker's negligence. By the turn of the 20 th century, the Colorado legislature had significantly limited, then abolished, the rule. The reasons for this abolition are discussed in a 1912 decision from the Colorado Court of Appeals involving a tragic railroad accident.
That decision also addressed the curious issue of whether cars and a caboose, when detached from their locomotive and poised to roll away, are still a "train" within the meaning of a tort statute, and, if so, who has "charge and control" of the "train."
The Accident
Below the abandoned hillside mining town of Gilman, Colorado, lies an old Denver and Rio Grande sidetrack known as Belden Siding. On the morning of May 2, 1901, a group of workmen was clearing track on the siding after mud and a rockslide had covered the track.[1] One of the workmen was Vito Vitello, who worked as a section man.
High cliffs stood on one side of their worksite, towering 1,500 feet above the tracks. The Eagle River ran on the other side of the site. In between the cliffs and the river, three parallel tracks filled the narrow valley. These tracks curved sharply as they wound their way through the valley. After the spring thaw, rocks frequently rolled downhill onto the tracks from the cliffs above.
About a mile and a half west of, and uphill from, the worksite at Belden Siding was Red Cliff station. Around 9:30 on the morning of May 2, as the men were working to clear the track below, a freight train arrived at the station, traveling east from Minturn. This train consisted of a locomotive, four cars, and a caboose. One of the four cars was loaded with scrap iron, including broken and unused railroad parts.
The conductor and two forward brakemen detached the locomotive and drove it forward into the station. There, they used it to move other cars. In the meantime, they left the four cars and caboose sitting on the track. The conductor left the cars in the hands of Samuel Dugan, an experienced rear brakeman. It was Dugan's job to bleed the air brakes and then set hand brakes to prevent the train from rolling down the mountainside toward Belden Siding. For whatever reason, however, he failed to do his duty that day.
After the engine was detached, Dugan stayed with the cars for a while, and then inexplicably left them. The air brakes held the train for about 15 to 25 minutes, until the air escaped from the brakes.[2] With no hand brakes set to hold the train, the cars began to roll downhill.
As they rolled, the cars picked up speed. Down in the valley, the foreman of the work crew spotted the runaway cars when they were still 800 to 900 feet away. He yelled to the workmen to move toward the edge of the river on the inside of the curve. Some of the men followed his advice, but others, including Vitello, moved in the opposite direction, toward the cliff face.
The cars soon reached the curve, moving at a high rate of speed. About 200 to 300 feet uphill from the workmen, the train hit the curve in the tracks. Two of the cars did not make the curve and derailed. The other two cars and the caboose kept going. They rounded the curve and soon were only about 100 feet from the men. At that point, the two cars jumped the track. They headed along the ground, running outside of the curve. Then they ran along the ground until they came to a halt.
One of the derailed cars had left scrap metal scattered all over the ground. As the trackmen approached the wreck, they found Vitello lying dead between two of the tracks. The top of his head had been fractured. The cause of the fracture was unclear. Was he hit by a piece of metal from the scrap car? Or could he have been (coincidentally) struck by a rock that fell from the cliff face?
Vitello's widow sued the railroad in Arapahoe County District Court. The case was submitted to a jury. After the jury had been deliberating for 24 hours, the foreman sent a note to the court stating that the jurors stood 11 to 1 in favor of Ms. Vitello.[3] The court admonished the jury at length on their duty to reach a verdict. The last holdout juror then folded. The jury awarded Ms. Vitello $5,000.
Alleged Jury Tampering
The trial had been hotly contested. At one point, the railroad had grown so suspicious about events during the trial that it had allegedly hired a Pinkerton detective to watch the jury.[4]Accusations of jury tampering later surfaced.
According to articles in the Rocky Mountain News, the railroad's accusations centered on a member of the Vitello jury venire named John Q. Naylor.[5] Naylor had not been chosen for the Vitello jury, but he purportedly inserted himself into the case anyway by approaching several jurors on behalf of Ms. Vitello during trial recesses.[6] Naylor reportedly went so far as to ask one of the jurors to "do what he could"...
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