Dobbins v. Graer, 50 Colo. 10

50 Colo. 10 | Colo. | 1911

Mr. Justice Garrigues

delivered the opinion of the court:

1. Each of said propositions of counsel must be resolved against them. The evidence of the necessity, amount and value of the labor is overwhelming, and the law is that Graer should be holden for it, and it should be deducted from any moneys due him for unloading the coal. — McGonigle v. Klein, 6 Col. App. 306.

2. The court erred in not sustaining the motion for a new trial. Where the verdict is manifestly against the weight of the evidence, it should be set aside. — D. & R. G. R. R. Co. v. Peterson, 30 Colo. 77; Beulah M. Co. v. Mattice, 22 Colo. 558; Manufacturing Co. v. Collins, 13 Col. App. 14; Hoover v. Young, 23 Colo. 517; Lamar M. & E. Co. v. Craddock, 5 Col. App. 203.

The jury allowed plaintiff pay for unloading all the coal, but allowed defendant nothing for the part the section men unloaded. Plaintiff could not recover for the coal unloaded by the section men and not pay for their labor. A verdict based upon such a theory is so manifestly wrong, it should be set aside.

3. It is argued there was no evidence what the services of said section men were reasonably worth. In this, counsel are mistaken. The undisputed evidence shows they were the ordinary railroad section men at Glenwood Springs, regularly employed by the company at $1.40 per day. This is some evidence of the reasonable value of their services. Besides, plaintiff testified that he and his sixteen-year-old son were employed in July of the same year, at the same place and in the same kind of work; that he received $2.50 and his boy $1.50 per day, which was reasonable compensation. Inferences are as permissible here as in other matters of evidence.

4. The case seems to have been tried upon a mistaken theory. There was an implied agreement that if plaintiff neglected' to keep sufficient coal in the chutes to supply the locomotives, either defendant or the railroad company could do' so, and the plaintiff would be chargeable with the reasonable cost and expense thereof. — McGonigle v. Klein, 6 Col. App. 306.

Defendant testified there was such an express agreement. Plaintiff swore nothing was said about it at the time of making the contract, so the court left it to the jury. This was error. Defendant saying there was such an express agreement and plaintiff saying there was nothing said about it, added nothing, no difference which the jury believed. Things implied need not be mentioned, and, if mentioned, add nothing to the contract. In this, case, the jury should have been told by the court, as a matter of law, that there was an implied agreement to pay for unloading said coal, if plaintiff neglected to do it. In any case where it becomes necessary to submit to the jury, whether an implied contract exists, it is the duty of the court to tell them what facts, when found by them, will’constitute an implied agreement; but this only becomes necessary, ordinarily, where the facts are disputed. Where the making of the contract and all the circumstances surrounding its execution are undisputed, as in this case, the question of what implied agreements, if any, enter into it, is a question of law for the court.

5. The section men’s time and pay roll while unloading the coal, furnished by the railroad superintendent, was offered in evidence and excluded. Taken in connection with the oral evidence of the two section foremen who superintended the work and kept the time of these men, and who testified to its accuracy, and that the time of the men, as given, was correct, it was competent evidence.

Beversed and remanded. Reversed.

Chief Justice Campbell and Mr. Justice Musses concur.