46 Colo. 569 | Colo. | 1909
delivered the opinion of the court: .
The plaintiff in error, who was plaintiff below, began work for the defendant in the Camp- Bird mine on November 11, 1902. The first day he carried plank into the mine,- the next day he was engaged
Plaintiff brought this action, setting forth in his complaint two causes of action. In the first, he seeks to recover under the Employers’ Liability act of 1901, for injuries sustained in consequence of the negligence of a co-employee. The act provides that an employer shall be liable in damages for injuries which may result to an employee from the carelessness or negligence of another employee, in the same manner, and to the same extent, as if the carelessness or negligence causing the injury was that of the employer.- After stating that Dalra was engaged with him in constructing an ore chute, and that it was the duty of Dalra to provide himself with, and to use reasonably proper, safe and sufficient tools with ordinary care, the complaint alleges: “That notwithstanding his duty, said Dalra did negligently omit to provide himself with, and to use, reasonably proper, safe and sufficient tools, with ordinary care, in and about the doing of said work, and contrary to his said duty, did negligently provide himself with, and use, improper, unsafe and insufficient tools, with such lack of ordinary care as to cause a nail, which he was attempting to drive into said lumber with an axe, to bound and fly therefrom, and strike plaintiff in the left eye.”
In the second cause of action, the plaintiff alleges that, as a part of the contract of employment between himself and defendant, it was agreed, in consideration of the sum of $1.00 a month, to be deducted by the defendant from such wages as might from time to time accrue to plaintiff, that the defendant would provide the plaintiff with such medical and hospital treatment as might become necessary or proper, in the treatment of any injuries that plaintiff received while so employed, and that during
But two questions, relative to the first cause of action, are submitted for consideration.
1. Did the case, as made by plaintiff, show that he assumed the risk of the injury?
The defendant contends that it does. The lower court did, and for that reason directed the verdict.
2. Was notice given to the defendant of the time, place and cause of the injury, if such notice is required by the act of 1901 ?
Under the allegations of the complaint, the negligence of the co-employee consisted of two acts.
To provide one’s self with tools is one thing; to use those tools is another thing. One may select improper, unsafe and insufficient tools, and yet use those tools, under the circumstances, with such ordinary care that no .injury may result; on the other hand, he may select such tools and use them with such lack of ordinary care as to cause injury. To assume the risk of working with a co-employee, who has selected improper, unsafe and insufficient tools is one thing, while to assume the risk of.working with a co-employee, who uses improper, unsafe and insufficient tools with a lack of ordinary care, is another thing. If it he granted, for argument’s sake, (but not decided) that Dalra had provided himself with improper, unsafe, and insufficient tools, and that the plaintiff had assumed the risk of working with him, with such tools, that is not granting that the plaintiff assumed the risk of Dalra’s using those tools with lack of ordinary care. The evidence in the case shows that Dalra, in an angry manner, suddenly drew hack, and, with his whole force; struck the spike, which caused the injury to plaintiff. He did not do so before. His use of the tools before that did not arouse in plaintiff any apprehension of danger to anyone but Dalra himself. True, the spikes frequently bounded before that, but it does not appear that they bounded in the direction of, nor as far as plaintiff. Even the bounding of the two spikes at plaintiff’s end of the plank, immediately preceding the bounding of the one that struck his eye, does not appear to indicate that plaintiff was in any apparent danger, at the distance he was away, if Dalra continued to endeavor to start the spikes as he had been doing, or if he would use ordinary care in so doing. Up to the time that Dalra struck the last spike, he
In 1893, our general assembly passed an Employers’ Liability Act, which provided that before an action can be maintained under it, a written notice of the time, place and cause of the injury must be given to the employer within sixty days.' The act of 1901 is an independent act and is silent as to notice. The defendant contends that the language of sec. 2 of the act of 1901 makes the provisions of the former act, relative to notice, á part of the latter one. It need not be determined whether a notice is or is not necessary under the act of 1901, .for the reason that the provisions of the act of 1893, relative to notice, were substantially complied with in this ease. On December 19, 1902, the attorney for plaintiff, as' such attorney and on behalf of the plaintiff, addressed and mailed a letter to the resident manager of the defendant,' wherein was stated the time and place of the injury, for which compensation was
In Massachusetts, before an action could be determined against a city or town for damages for an injury in a highway, the statute provided that notice of the time, place and cause of the injury should be given. In 1882, the statute was amended by adding a provision concerning inaccuracy, and this provision is almost word for word the same as the provision in our statute of 1893, quoted above. —Note 2, Fortin v. Easthampton, 142 Mass. 486.
In Gardner v. Weymouth, 155 Mass. 595, in construing this amendment, the court said that it would be too strict a construction to hold that the amendment applies only to cases of misstatement. With this we are in accord. The court then proceeds to •say that the amendment can have no application at all where there is a total omission to state either all or any of the requirements of time, place or cause. This does not appear to be in harmony with the decisions of the English courts. The court then says: £<If there is a statement of the kind required, which, as to the time, or the place, or the cause of the injury, • is inaccurate, whether from falsity or deficiency, whether through omission or error-, the plaintiff may still recover if there was no intention to mislead, and if the inaccuracy did not in fact mislead.” This holds that the inaccuracy may consist of a falsity,
In Fortin v. Easthampton, supra, the notice read as follows, and was held sufficient:
“Since falling on the sidewalk in front of the Button shop, Feb. 25th last, I have been unable to work, and am now under the doctor’s care, and I hereby notify you to that effect. I request a settlement in some way. Please attend to the matter at once.”
The defendant argued that there was a total failure to state, any cause and that a total omission cannot be called an inaccuracy. In reply to this contention, Mr. Justice Holmes said:
“But a majority of the court are of the opinion. that the argument, as applied to this case, construes the statute too narrowly. When a man states that he was hurt by falling on a sidewalk, and that he demands damages for it, he does imply, although indirectly and insufficiently, that there was something for which the town was responsible as the cause of the damage, and thus that there was something wrong about the way. And this is true, even though the reference to falling is, primarily at least, only for the purpose of fixing a time. It is hard to suppose that the statute intends to cure-a misstatement of the cause, which, on the face of things, is more likely to mislead than no statement at all, and yet to allow a simple omission to remain fatal. However this may*582 be, a very slight suggestion of the cause will be sufficient when the conditions of the statute are complied with. ’ ’
See, also: Canterbury v. Boston, 141 Mass. 215; Liffin v. Beverly, 145 Mass. 549; Veno v. Waltham, 158 Mass. 279; Conners v. Lowell, 158 Mass. 336; Fuller v. Hyde Park, 162 Mass. 51; Carberry v. Sharon, 166 Mass. 32.
Without determining whether or not a notice which entirely fails to state any one of the three requirements, would be sufficient, bearing in mind the admonition afforded by the English decisions, and the holding of the Massachusetts court that a very slight suggestion of the cause is sufficient, it appears that in the present case the suggestion of a cause in the attorney’s letter is sufficient, if it was not thereby intended to mislead the defendant, and the defendant was not in fact misled thereby. From the Massachusetts authorities cited above, it appears that this question of whether the inaccuracy is intended to mislead and did in fact mislead, is one for the jury, under a statute like ours, the same as other facts are to be determined by a jury. If we investigate this matter in this record, we find that on December 22, 1902, defendant’s attorneys'wrote a letter to plaintiff’s attorney, saying that the manager had handed to defendant’s attorneys, for reply, the letter of December 19th, and that from the investigation, which the company had made, there seemed to be no liability on its part. The letter further stated that the defendant was carrying liability insurance, and suggested that plaintiff’s attorney take the matter up with the attorneys for the insurance company, who had knowledge of all the facts. After the receipt of the letter of December, 22d, plaintiff’s attorney delivered to the attorneys for the insurance company an affidavit of plaintiff,- stating, in'detail, the
It is suggested in the brief that the affidavit delivered to the attorneys, for the insurance company, was a notice to the defendant, because delivered to the persons designated to represent the defendant in the whole matter of plaintiff’s claim and that notice was waived by the acts of defendant. There may be force to these suggestions, but as it is not now necessary, they will not be determined.
So far as the second cause of action is concerned, it cannot, in reason, be maintained that if the defendant contracted at all, that it contracted to do more than to furnish such reasonable care as the hospital at Ouray afforded. Such hospitals are not equipped with all kinds of specialists. The plaintiff will certainly not maintain that if it became necessary for his proper treatment, that he consult an eminent specialist in New York, that the company was bound to furnish such specialist, either at the hospital at Ouray, or in New York. It is likewise too much to say that the company was bound to furnish a specialist either at the hospital or in Denver. The company furnished such care as the hospital in Ouray afforded and' as could be reasonably expected —at least no complaint was made of it. This is all that can be required. The plaintiff has alleged expenses for medical services and care, and loss of time in his first cause of action. If he recovers in this, he
For the reasons above stated, the direction of the verdict was wrong as to the first cause of action and right as to the second.
The judgment of the district court will, therefore, be reversed and the cause remanded for such further proceedings on the first cause of action as may be in accordance with law.
Reversed, and remanded.