Gonzales v. Denver and Rio Grande Western Railroad Co‪.‬

Opinion by CHIEF JUDGE ENOCH In this wrongful death action, the plaintiff, Bertha Gonzales, appeals the trial court's entry of summary judgment in favor of defendant, Denver and Rio Grande Western Railroad Company. We affirm. On September 17, 1978, a train and car collision occurred in which the driver of the car, Fidel Gonzales, was killed. On September 8, 1980, plaintiff, wife of the decedent, filed a wrongful death action in the U.S. District Court of Colorado. Defendant moved for dismissal of this action on the basis of lack of federal subject matter jurisdiction. Plaintiff, on October 7, 1980, filed an identical wrongful death action in the state court. The federal suit, pursuant to defendant's motion, was dismissed on May 27, 1981. Thereafter, the state court entered summary judgment for defendant on the basis that the statute of limitations barred plaintiff's wrongful death claim in the state court.