23 Colo. 363 | Colo. | 1897
delivered the opinion of the court.
In addition to the general verdict against the appellant company, seven interrogatories were submitted to the jury. From the evidence, as resolved by the jury in answer to these special interrogatories, it appears that the accident occurred as follows:
On the evening of the 25th day of November, 1892, Crumbaugh returned from his regular run to the end of the line,
The appellant presents a lengthy argument to show that Truitt, who had charge of these repairs, was a coemployé with Crumbaugh in the service of the appellant company, and that for this reason the company is not liable for his
It would serve no useful purpose to follow counsel through the conflicting decisions of the English and American courts upon the legal proposition contended for, for the reason that the question has been exhaustively considered by this court in many cases, and the law is now well settled in this jurisdiction that the duty of the company to furnish reasonably safe machinery and keep the same in reasonable repair is a duty imposed by law upon the company, the performance of which it cannot delegate to another so as to relieve itself from responsibility.
In the case of Wells v. Coe, 9 Colo. 159, it is said:
“Agents charged with the duty of procuring safe machinery, or agents charged with the duty of inspecting and keeping' machinery and appliances in suitable repair, are not to be regarded as fellow servants with those employed to labor in the business wherein such machinery or appliances are used, or, in some cases, even with those engaged to operate the same. The master is liable for injuries resulting, without contributory negligence, to other servants, through the ordinary negligence of his employé or agent thus charged with the duty of procuring or repairing, whether such negligence be in originally failing to purchase safe machinery, or appliances, or in failing to keep the same in proper condition for use.”
There is no contention in this case that Crumbaugh knew of the defects in the electrical appliances on car No. 110; and there is not the slightest evidence of facts or circumstances which would indicate that he had such knowledge. When this car was run into the repair shop on the night of the 24th of November, the duty to properly repair it was a duty resting upon the company, and a duty that it could not delegate to others. The law required at the hands of the company reasonable diligence in making the necessary repairs, and to see to it that the car did not leave the shops for service until such repairs were actually made. It does not
It is claimed by appellant that the court should have instructed the jury upon the question of contributory negligence, although no specific instruction was asked upon this subject. A careful reading of the evidence in the case fails to disclose any facts or circumstances which would make the doctrine of contributory negligence applicable, for, although such a defense is set up in the answer, it does not appear to have been pressed upon the trial, and we do not think the question is in the case. We have not overlooked the fact that one out of a large number of witnesses testified that car No. 110 was slowly moving toward the other car, by the force of gravity, at the time Crumbaugh was endeavoring to change the trolley. All the other witnesses state that at this time car No. 110 had come to a full stop. But Crumbaugh was not injured because the ear was slowly moving down by force of gravity; but he was injured by the great momentum given to the car by reason of the reverse effect of the electricity, caused by the defective electrical appliances. He had never used car No. 110, and had nothing to do with its management at the time of the accident, and we fail to see how he could have anticipated that when the electrical switch was turned for the car to go ahead it would run suddenly backward with great velocity.
Some of the witnesses testified that after passing around the side of the car he might have placed the trolley upon the wire from the back platform. But this would have required him to have leaned out over the back railing of the car. If lie had attempted to make the change in this way, and his
Evidence was properly received as to the defective condition of the car prior to the day of the accident. Such evidence was competent for the purpose of showing knowledge on the part of the company of the condition of the car.
Finding no error in the record, the judgment of the district court will be affirmed.
Affirmed.