Nicholson v. E. P. McGovern Undertaking Co. , 41 Colo. 1 ( 1907 )

Mr. Justice Campbell

delivered the opinion of the court:

Action to recover damages for personal injuries. The controversy arose out of the following facts: W. C. Prerker is a livery stable keeper. The defendants, who are engaged in the undertaking business, hired of Prerker a carriage, a team of horses and driver, which were to be used in carrying to the „ cemetery friends of the deceased and tailing them back to their respective residences. The plaintiff, Mrs. Nicholson, was one of the occupants of the carriage, and on the return trip, and as she was about to alight from the carriage in front of her home, the driver suddenly started up his horses, which threw plaintiff to the ground and caused the injuries for which this action is brought.

At the close of plaintiff’s testimony, which tended to establish the foregoing facts, the court, on motion of defendants, directed the jury to return a verdict for them, and dismissed the action, to which judgment the plaintiff sued out this writ of error.

After the dismissal of this action, the plaintiff, being in doubt as to the liability of the hirer of the horses and carriage, brought an action on the same ground of negligence against their owner, the keeper of the stable, and recovered a judgment against him. Both cases are now pending here for review, and plaintiff is represented in both cases by the same counsel, who has filed briefs in each case. In his brief here, he calls our attention to his brief in ease No. 5502, that of plaintiff against the owner, reported as Frerker v. Nicholson, post, p. 12, wherein he says that he has arrived at the conclusion that the trial court was right in dismissing the present action against the hirer. Whether this conclusion is in anywise due to the fact that plaintiff was successful in recovering a judgment against the owner, or is the result entirely of a further examination of the authorities, is immaterial. It is sufficient for us to say that, since the plaintiff in error and defendant in error are in accord, the decision of the trial court was right, it would not be fitting to disturb this unusual concord by reversing a judgment with which the parties themselves are satisfied. It is accordingly affirmed. • Affirmed. .

Chief Justice Steele and Mr. Justice Gabbert concur.