32 Colo. 391 | Colo. | 1904
delivered the opinion of the court.
When the bill of exceptions was first lodged in this court, the appellee moved to strike it from the files. The motion was denied, because the ground upon which it was based, in so far as it was sought to attack the correctness of the bill, could not be established in the manner attempted. Leave was granted the appellee to withdraw the bill for the purpose of amendment. It was withdrawn for this purpose. Amendments were allowed by the trial judge, and the bill returned. The result is, that in some particulars the record is confused, but on the vital question in the case it is clear. Before proceeding, however, to a discussion of the 'cause upon its merits, there remains one question raised by the motion to strike to dispose of.
The order fixing the time within which the bill of exceptions was to be tendered the trial judge for signature, provided that it should be presented to counsel for appellee for inspection at least ten days before the expiration of that time. It was not placed in the hands of such counsel until seven or eight days before the day that it was to be tendered the trial judge. In support of the motion to strike, it is urged that the judge could not waive the provision of the order with respect to the time the bill was to be handed counsel for appellee for inspection. The purpose of the order was to afford counsel for appellee an opportunity to examine the bill. This part of the order was in no manner jurisdictional. It did not deprive the judge of power to sign the bill, even if not strictly complied with, if he was satisfied that counsel for appellee had been afforded the opportunity which was its purpose. When the hill was presented to the judge, objection was made
The action was commenced by appellee to recover from appellant damages for injuries sustained by the alleged negligence of the latter. The trial resulted in a verdict and judgment for the plaintiff, from which the defendant appeals. At the close of the testimony for plaintiff, the defendant moved for a peremptory instruction, directing the jury to return a verdict in its favor. Among other grounds assigned in support of this motion, was one to the effect that the injury was the result of one of the hazards which plaintiff assumed. This motion was denied. In order to properly discuss this question, a brief resume of the testimony of plaintiff becomes necessary.
He was employed in a mill operated by the defendant. One of his duties was to move concentrates from one part of the mill to another. This was effected hy means of buckets suspended on wheels resting on a rail or rigid tram, attached to a frame about six and a half feet from the floor. Side trams similarly constructed were connected with the main-tram at points where it curved sharply, so that the buckets could be moved to and. from various parts of the mill. The connection between each side tram and the main, one was effected by means of a switch. This switch was constructed of the same material as the tram, and worked laterally on a hinge, or pivot, attached to the side tram, and was so arranged as
The switch in question was not a complicated piece of machinery; in fact, it was a very simple device. It was the duty of the plaintiff to operate it. In doing so he could not fail to observe its alleged defects. There was no concealed danger about its use. The consequences which would result from running a loaded bucket upon it when not connected with the main track were apparent to any person of ordinary intelligence. If, as claimed, the groove was not sufficient to hold it in place, that was. a defect in its construction which must have occurred to any one with the experience in operating a switch of that character which the plaintiff had. In opening and closing it he could readily see how it was constructed; he knew that other switches which he-had occasion to use were supplied with a flange on the inner side, which made the connection more secure when a switch thus equipped was closed. The closing of the switch in question was entirely within his own control. If defective, he must have known that fact, or by the exercise of the most ordinary care should have known it. He made no objection to its use, nor was any promise made on the part of the defendant to' remedy the alleged defect. It thus appears that plaintiff voluntarily continued in the service of the defendant with knowledge, or means of knowledge, equal to it, respecting the alleged defects in the switch entirely under his control, without objection on his part, or promise hv the defendant
The motion of defendant for a verdict in its favor should have been sustained.
Counsel for plaintiff contend that assumption of risk is an affirmative issue that must be specially pleaded. This would be an important question in case the defendant had attempted to establish a state of facts from which it appeared that the injury sustained by the plaintiff was the result of an assumed risk on his part; but where, as in this instance, the testimony on the part of the plaintiff discloses that he assumed the risk which resulted in his injury, the question of the character of the defense interposed by the defendant is not involved.
The judgment of the district court is reversed and the cause remanded for a new trial.
Reversed cmd remanded.
Steele, J., not sitting.