18 Colo. App. 234 | Colo. Ct. App. | 1902
Plaintiff contends that defendant was negligent; that such negligence was the proximate cause of the •death of her husband, and that such negligence consisted in the character and location of the bunk-house, and in the absence of a bulkhead or other means of cheeking the fire.
Defendant denies negligence and further says, that deceased had full knowledge of the conditions constituting the alleged negligence, that he was as capable of understanding them as defendant, the principal ; that he made no complaint thereof and continued to work knowing such conditions without any promise of a change therein from defendant, and thereby assumed the risk of the results of the alleged negligence of defendant. Deceased, 36 years of age, was of good intelligence, had worked around mines before his employment by defendant, and had worked as pumpman in above mine during one month next preceding the accident. He lodged in the bunk-house, knew the materials of which it was constructed, its location and its use. In. going to and from his work he traveled through the tunnel, knew its location with reference to the shaft and must have known of the draft passing through the tunnel and up the shaft. He also knew whether any appliances for checking the fire existed in and about the tunnel; the whole situation was as open to his observation as to that of the principal, and only common knowledge was required to understand it.
It is not attempted to be shown that deceased made any complaint to appellee of any danger in the situation, or that defendant made any promise to remedy the alleged defects.
“There was no fender or life guard on the trailer * * * and its absence or presence was open to observation and easily discernible by the most casual inspection. Upon these conceded facts, we think it was the duty of the trial court to have withdrawn the case from the consideration of the jury and have determined, as a matter of law, that they were insufficient to show liability on the part of the company. * * * But, even conceding that the want of a life guard rendered the car defective and the company was guilty of a breach of its duty in failing to supply it and in operating the train without it, such defect was certainly obvious, and one that the appellee could not have failed to observe if be bad used bis eyesight, and one that was as open and pat
Wells et al. v. Coe, 9 Colo. 159, 11 Pac. 50, was an action to recover for personal injuries sustained through the alleged negligence of defendant. Coe was working in a mine and killed by a bucket used to hoist earth and water descending in the shaft wherein he was working. The proximate cause of the accident was the breaking of the brake rod and slackness of a tight belt forming a part of the hoisting apparatus. Verdict and judgment for plaintiff below. The case was reversed and in the course of the opinion the court said:
“Where injury is suffered by an employee, through defects in the machinery or appliances furnished by his employer and used in the business, if the employee knew, "or had means of knowledge equal to that of his employer, concerning such defects, yet continued in the latter’s service, he cannot recover; provided no inducement, such as a promise to cure the defect, and thus remove the danger, led him to re*239 main. The means.of knowledge possessed by agents in cases covered. by the third ■ general rule above named are, of course, those of the principal or employer. * * * The reason for this exception is self-evident. If, with knowledge, or with means of knowledge equal to his employer’s, of defects in the machinery, the servant, without remonstrance, voluntarily continues in the service, a waiver of his claim for damages is said to have taken place, or his conduct is regarded as negligence contributing to the . resulting injury. ’ ’
Applying the law so announced to the facts in this case, even should we assume that the defendant was guilty of negligence — upon which no opinion is expressed — the evidence shows that plaintiff with knowledge, or the means of knowledge equal to that of his employer concerning the alleged condition of ■his working place, undertook his work and continued the same without any complaint on his part, or any promise upon his employer’s part as to the alleged negligent condition, and thereby assumed the risk arising from the alleged negligence of the defendant. This being true, plaintiff was not entitled to recover herein, the decision of the trial court in so ruling was right and its judgment should be affirmed.
Affirmed.