| Colo. Ct. App. | Apr 15, 1895
delivered the opinion of the court.
A corporation commonly known as the C. C. & I. Co., who are the appellants, were the operators of a coal mine at Berwind, in Colorado, in the summer of 1892. On the 11th of July, two men were killed in the main entry of the mine, about four hundred feet from its mouth; and Anna Carpita, the widow of one, brought this action to recover damages for the death of her husband. The case does not abound in data which enable us to give a thoroughly exact description of the property, but enough, probably, to make the situation and the circumstances plain. The accident happened in the main
The main entry was generally timbered throughout its course. The extent and the character of the timbering was varied by the nature of the roof, regard being had both to its structure and solidity. There is much controversy between the witnesses as to the timbering which had been done between rooms four and five, which was the point of the accident. We need not settle the controversy, for the case will turn upon a legal proposition unaffected by this conflict. When a fall occurs in this formation, it sometimes takes a shape which the miners term a “ pot hole,” being a fracture usually square on two sides, and running at an angle up to a point in the roof, so that the rock is of conical shape when it drops. The original fall described by the witnesses was of this form. Some time in the afternoon a large break bccurred in the roof, about four hundred feet from the main entry, and some six or eight tons of rock fell. It broke some of the timbers which were under iV and left a large section of the roof exposed. It was some two or three feet wide, and probably about eight or ten long. This fall hurt nobody. As soon as it happened the mining boss and some of the laborers proceeded to remove the rock and clear the way for the passage of the cars which carried the coal broken by the miners in the various rooms. The roof was examined and tapped by the boss, to determine its solidity, and, with the workmen which he called to his assistance, he proceeded to place a prop or stull, topped by a cap or crossbar, under the rock, to hold it while they were preparing and putting in such timbers as in their judgment might be necessary to securely hold the breaking roof. The regular timbering is described by the workmen as consisting of lags and crossbars, which seem to be what other miners usually call posts and caps, as they are used in the drifts and levels of metal producing mines. After this fall, the cars necessarily stopped, and the miners were compelled to suspend work. After this work had been begun, Carpita and his partner, Franza, passed
The Carpita and the Lamb cases were argued together, and while differing in some of their legal features, are dependent upon the same general facts for their history. This statement is substantially full enough to cover both cases.
It is an indisputable proposition, that no cause of action arises where the decedent has been guilty of a negligence which contributed to the injury complained of. The doctrine of contributory negligence is well established in this state, and the cases on this subject are numerous and uniform. Atchison, Topeka & S. F. R. R. Co. v. Farrow, 6 Colo. 498" court="Colo." date_filed="1883-04-15" href="https://app.midpage.ai/document/atchison-topeka--santa-fe-r-r-v-farrow-6561119?utm_source=webapp" opinion_id="6561119">6 Colo. 498; Wells et al. v. Coe, 9 Colo. 159" court="Colo." date_filed="1886-04-15" href="https://app.midpage.ai/document/wells-v-coe-6561365?utm_source=webapp" opinion_id="6561365">9 Colo. 159; Kennedy v. Denver, So. Park & Pac. Ry. Co., 10 Colo. 493" court="Colo." date_filed="1887-10-15" href="https://app.midpage.ai/document/kennedy-v-denver-south-park--pacific-ry-co-6561527?utm_source=webapp" opinion_id="6561527">10 Colo. 493 ; Denver, So. Park & Pac. Ry. Co. v. Wilson et ux., 12 Colo. 20" court="Colo." date_filed="1888-10-15" href="https://app.midpage.ai/document/denver-s-p--p-r-v-wilson-6561678?utm_source=webapp" opinion_id="6561678">12 Colo. 20; Lord v. Pueblo S. & R. Co., 12 Colo. 390" court="Colo." date_filed="1888-12-15" href="https://app.midpage.ai/document/lord-v-pueblo-smelting--refining-co-6561749?utm_source=webapp" opinion_id="6561749">12 Colo. 390; Jackson v. Crilly, 16 Colo. 103" court="Colo." date_filed="1891-01-15" href="https://app.midpage.ai/document/jackson-v-crilly-6562107?utm_source=webapp" opinion_id="6562107">16 Colo. 103; Colo. Midland Ry. Co. v. O'Brien, 16 Colo. 219" court="Colo." date_filed="1891-04-15" href="https://app.midpage.ai/document/colorado-midland-ry-co-v-obrien-6562126?utm_source=webapp" opinion_id="6562126">16 Colo. 219; Moffat v. Tenney, 17 Colo. 189" court="Colo." date_filed="1892-01-15" href="https://app.midpage.ai/document/moffatt-v-tenney-6562218?utm_source=webapp" opinion_id="6562218">17 Colo. 189.
The evidence demonstrates beyond peradventure that Car-pita voluntarily and without occasion assumed the risk which caused his death. He had no business at the point where the accident happened. He was á miner employed in a room many hundreds of feet away from the point of the accident, and his labors only took him to the room in which he was employed. His right to leave his room and go to the surface may be conceded, but the concession will not aid the plaintiff. Had he gone to the surface, and remained there, he would not have been hurt. He had no right to linger in a place of
A very considerable argument is built upon the section of the mining statute which gives a right of action to the widow and lineal heirs in case of a breach of some of .the statutory requirements, or of any failure to observe any of those things which the statute prescribes. The suit was brought in the name of Carpita’s widow. The evidence showed there were several children, and it is insisted that since the right of action is given to the widow and lineal heirs, they must be joined in the suit. What the rule would be in a case unmistakably founded on a violation of the statute we do not undertake to determine. The statute gives a right of action for a violation of what it prescribes, but this fact does not destroy the right to sue for the injury occasioned by the death of the decedent under the other damage acts which are on the statute books. We do not intend to decide whether it would be possible to join a cause of action under the general dam
While it may not influence the ultimate determination of the suit, one of the matters complained of by the appellant requires attention. After the commencement of the trial, and through the examination of one of the witnesses for the plaintiff, it transpired that the widow of the deceased was living in Italy, and had never been in this country. The action was begun about eleven days after Carpita was killed. This would appear to demonstrate the impossibility to procure authority from the widow to bring the action before it was actually commenced. The defendant asked leave to call on the plaintiff’s attorney to show his authority, which was denied. What may have been done respecting this matter since, we do not know. Where the right of the attorney to appear is questioned, not capriciously, but upon evidently good grounds, it is the duty of the court to require the attorney to exhibit his authority. The court did not proceed according to this well established, rule, and while it is possible the suit may now be prosecuted regularly, we think the court erred in denying the defendant’s application. Whether anything farther should be done in the matter, we are unable to determine, and the course to be taken must be settled by the nisi prius court.
For the errors discussed and resolved against the plaintiff, the judgment must be reversed, and the case remanded for a new trial.
Reversed.