8 Colo. App. 282 | Colo. Ct. App. | 1896
delivered the opinion of the court.
In September, 1889, the appellees were the owners of a quantity of unthreshed wheat and oats in stack, which they employed the appellant to thresh, and which he undertook to thresh, with a steam thresher then owned and operated by him. While the work of threshing was proceeding, the stacks took fire, and a large portion of the grain was burned. The following are the allegations of the complaint in relation to the damage:
“ That said steam engine and steam threshing machine was defective, faulty and dangerous in construction, and out of repair, and unfit and unsafe for use in threshing grain. All of which was known to the defendant, and was unknown to the plaintiffs. That, while so threshing said grain, and by the carelessness and negligence of the defendant, his agents and servants, and without carelessness or negligence on the part of the plaintiffs, a large quantity of said grain, to wit: 1,513 bushels thereof, and a large quantity of straw, belonging to plaintiffs was set on fire by said steam engine and steam threshing machine, and wholly consumed and destroyed, to the great damage of plaintiffs.”
The defendant answered the charge as follows:
“ Denies that said steam engine and steam threshing machine, mentioned in plaintiffs’ complaint, or either of them, were defective, faulty or dangerous in construction, or out of repair, or unfit or unsafe for use in threshing grain, or that all or any of said alleged defects were known to the defendant.
“Denies that, while threshing the grain mentioned in plaintiffs’ complaint, or any part thereof, by the carelessness or negligence of the defendant, his agents or servants, or any of them, a large quantity — to wit, 1,513 bushels, or any other quantity — of the grain or straw, mentioned in plaintiffs’ complaint, was set on fire by the steam engine and steam threshing machine, or either of them mentioned in plaintiffs’ complaint.”
The evidence on both sides was almost entirely directed to the construction and condition of the engine. The smokestack was supplied with a hood or cone, but had no screen. The plaintiffs proved that the cone alone would not prevent the emission of sparks; that the common and ordinary method of preventing the escape of fire from the smokestack, and the one in almost universal use in the case of coal-burning threshing engines, was a cone with a wire screen above; and that it would be dangerous to set an engine, unprovided with a screen, as close to the grain stacks as this engine was set, when there was a moderate breeze in the direction of the stacks. On the other hand, the testimony for the defendant was that it was impracticable to operate an engine with a screen, because the screen would choke up; and, as a spark arrester, the cone was ordinarily sufficient.
The case which was tried was not the case made by the • pleadings; and ordinarily judgment in favor of a party upon a case which he has not pleaded would be improper, even if his adversary should be negligent in failing to interpose proper objections at the proper time. Gibbs v. Wall, 10 Colo. 153. But the issue upon the defective character of the machinery as the cause of the fire, which was injected into the case by the evidence, was accepted by both sides, without question, as the main issue for trial. Their tacit agreement as to the questions involved controlled the course
The judgment from which this appeal was taken was the i’esult of a second trial of the cause. Upon the former trial, judgment likewise went against the defendant, from which he took an appeal to the supreme court, where the judgment was reversed. Holman v. Boston L. & S. Co., 20 Colo. 7. The complaint upon which the cause was first tried, as appears from the statement preceding the opinion of that court, contained the following allegations concerning the origin of the fire: “ That while so threshing said grain, and by the carelessness and negligence of the defendant, his agents and servants, in operating said steam engine and thresher, and on account and by reason of the defective, faulty and dangerous construction of said engine and thresher, and on account of the same being out of repair, thereby rendering said engine unfit and unsafe for threshing grain, and by reason of defendant’s using said machine and engine in the condition aforesaid, and without carelessness or negligence on the part of the plaintiffs, a large quantity of said grain, to wit, 1,513 bushels thereof, and a large quantity of straw belonging to plaintiffs, was set on fire by said steam engine and steam threshing machine, and wholly consumed and destroyed.”
It will be observed that the foregoing allegations charge the fire directly to the defective, faulty and dangerous construction and condition of the engine and thresher. When, how or why the original complaint was abandoned, and the present one substituted, the record does not advise us. Judging from the language of that opinion, the evidence introduced at the first trial in relation to the condition of the engine was substantially the same' as that introduced at the
• Counsel for the defendant prepared and offered a number of instructions, which the court declined to give. By the consent of counsel on both sides, the court then instructed the jury orally. All of the instructions requested in behalf of the defendant, except one, were substantially embodied in the oral charge of the court; and error, therefore, cannot be predicated on their rejection. The one instruction excepted was as follows: “ The court instructs the jury that, if the plaintiffs were guilty of negligence in the stacking of their grain ready for threshing, or in having improper fuel to be used in defendant’s engine, or in not furnishing water in sufficient quantities, or in any other respect, where a duty devolved upon them, then, in that event, the jury will find for the defendant, although the jury may believe the defendant was also guilty of negligence.” There was no evidence to justify such an instruction. The defendant testified that the stacks were so close together that there was no room for his separator or his tables. Whether the stacking was improper, or increased the danger, he did not say. However, he undertook the job of threshing, knowing how the stacks
The oral charge was excepted to as follows: “ The defendant by his counsel here and now excepts to the giving of each and every of the foregoing instructions.” This exception was altogether insufficient. In order that ex'ror may be predicated upon instructions, either oral or written, the objections to them must be specific, and must point out separately the several instructions, or the sevei’al parts of the chai’ge which are questioned, so that the court may have an opportunity to make the proper necessary corrections. Rice v. Goodridge, 9 Colo. 287; Edwards v. Smith, 16 Colo. 529.
We have, however, examined the instructions given with some care, and find that the court confined them within the limits prescribed by the supíneme court; and, so far as we can see, they are without any objectionable features.
The judgment will be affirmed.
Affirmed.