51 Colo. 231 | Colo. | 1911
delivered the opinion of the-court.
This is an appeal by defendant from a judgment rendered against it in the sum of fifteen hundred dollars in an action by the plaintiff, Reynolds, to- recover damages sustained by the alleged negligence of the railroad company. The basis of plaintiff’s claim as set out in his complaint is, that for several months prior to his injury he had been employed by defendant in its pump-house in the City of Denver; that it was his duty, one-half of
The answer denied the negligence charged, and the. ■promise to repair; and as affirmative defenses, alleged contributory negligence and assumed risk on the part 'of the plaintiff.
It is to be observed that plaintiff, according to the averments of his complaint, had full knowledge of the defective conditions upon which he based the negligence of defendant, and appreciated the dangers to which he was thereby exposed; but that he sought to avoid the rule with respect to assumed risk by pleading a promise on the part of the defendant to repair. ■ Notwithstanding this plea, and assuming that it was established by the evidence, did the testimony make a case entitling plaintiff to recover ? A promise on the part of an employer to an employe to remedy a dangerous condition of which the employe has complained, does not excuse the employe from exercising due care to prevent injury to himself pending repairs. — Miller v. Bullion-Beck C. M. Co., 18 Utah 358; Gorman v. Des Moines Brick M. Co., 99 Iowa 259.
The important question, then, to determine, is whether or not the record discloses contributory negligence on the part of plaintiff, as claimed by the defendant. On this subject the rule is well settled, that where a plaintiff so far contributes to his injury by his own negligence or want of care and caution that but for such negligence or want or care and caution on his part, he would not have been injured, he is not entitled to recover. — Colo. Central R. R. Co. v. Martin, 7 Colo. 592; Colo. Central R. R. Co. v. Holmes, 5 Colo. 197.
The complaint and evidence show that plaintiff had full knowledge of the conditions with respect to the compressor, and, if they were dangerous, appreciated the dangers from that source. The floor of the pump-house was composed chiefly of cinders. Around the compressor was a cement strip of about eighteen inches in width. The compressor was about two feet in height. Considerable oil was used for lubricating this piece of machinery, a portion of which escaped when it was m motion, and was deposited on the cement strip. The
The promise of defendant to repair did not relieve plaintiff from exercising due care; that is to say, such care as an ordinarily prudent person would exercise under similar circumstances. Did he do so? We think not. He was aware of the presence of the oil on the cement, and the danger to be apprehended on that account. Instead of removing or avoiding it, he placed one foot partly in the oil, and proceeded to wipe the machinery, when, by removing it first, the danger of slipping would have been entirely avoided. He voluntarily placed himself in a position which he knew to be dangerous, to wipe the machinery, instead of first removing the oil from the cement, which, according to his claim, would have removed the danger to which he was exposed, because of the want of a drip-pan. Under the circumstances disclosed in this case, where a person has a choice of two methods of performing his work, the one safe and the other dangerous, and is aware of this fact, it is his duty to choose the safe method. If he does not. and chooses the method which necessarily exposes him danger, which would have been avoided had he
Had plaintiff first removed the oil, he would not have slipped; consequently, he would not have been injured, although the drip-pan and guard-rail which he says defendant promised to furnish had not been supplied. In brief, his own injury was occasioned entirely by the want of due prudence on his part. Regarding this there can be no doubt. The facts will not permit of any other conclusion. When the facts are not in dispute, and unquestionably disclose negligence, it is the duty of the court to so declare, as a matter of law. — Colo. Central R. Co. v. Holmes, supra; Lord v. Pueblo S. & R. Co., 12 Colo. 390; C., B. & Q. R. R. Co. v. McGraw, 22 Colo. 363; Jackson v. Crilly, 16 Colo. 103.
We therefore* conclude, from the record before us, that the negligence of plaintiff was the proximate cause of his injury.
Counsel for plaintiff contend that because he testified that there was more oil deposited on the cement strip than he anticipated, and that to first wipe the compressor was the more efficient way to clean it, for the reason that to throw dust on the oil on the cement would cause sdme to settle on the compressor before it was cleaned, and that during the process of wiping some oil would be deposited on the cement, that, therefore, he exercised a judgment and discretion as to the manner of doing his work which takes the case without the rule-we have announced. We do not regard this contention as tenable. The oil on the cement could have been removed with waste. The danger plaintiff apprehended was from the oil, and the absence of a guard-rail. - This' had not been remedied by supplying
Rut, even if a case had been made which justified its submission to. the jury, the court erred in its instructions. The court instructed the jury that the burden of proving assumption of risk was upon the defendant. This was clearly error. According tO' the averments of the complaint, plaintiff appreciated the danger to which he was exposed. He pleaded a promise to repair, so as to avoid the assumption of risk on this score. If he did not establish this promise, then he could not recover, for the reason, as stated, that he assumed the risk of the danger to which he was exposed because of the absence of a drip-pan and guard rail. So that the case was submitted to the jury upon an issue not in the case, whereby They were, permitted to find for the plaintiff, even though the promise to repair had not been established, upon the ground that defendant had not proved' that plaintiff had assumed the risk of danger, and that defendant was negligent in failing, in the first instance, to equip the compressor with a drip-pan and guard rail.
The judgment of the district court' is reversed and the cause remanded' for further proceedings in harmony with the views expressed in this opinion.
Reversed and remanded.
Decision en banc.