17 Colo. 189 | Colo. | 1892
delivered the opinion of the court.
The gravamen of the complaint is, that the negligence of
This court has decided in numerous cases th'at the province of the jury in determining questions of negligence and of contributory negligence should not be invaded by the courts except in the clearest of cases. The court will not grant a nonsuit or direct a verdict in favor of a defendant, on the ground of contributory negligence, unless the evidence in the most favorable light in which it may be reasonably considered in behalf of the plaintiff shows that the plaintiff (or, as in this case, the representative of the plaintiff) was guilty of negligence which contributed to cause the injury as alleged, and without which the injury would not have happened. Contributory negligence is a matter of defense to be shown by a preponderance of the evidence, though it may sometimes be shown by the plaintiff’s own witnesses. Kansan Pac. Ry. Co. v. Twombly, 3 Colo. 125; Lord v. Pueblo S. & R. Co., 12 Colo. 393, 394; Colo. Midland Ry. Co. v. O'Brien, 16 Colo. 219; D. & R. G. Ry. Co. v. Ryan, 17 Colo. 98, and authorities cited in the foregoing opinions.
In January, 1886, the defendants being the owners of the Maid of Erin lode mining claim situate in Lake county, Colorado, were employing a number of men in and about the work of developing and extracting ores from said mine at a
After lunch these men were taken back to the pump station in the bucket, and were told by the foreman to wait there until the cage should come down, when they were to go again to the. lower level to resume work in the mineral. The} were given to understand that the cage would be down in a few minutes. There was not much work for them to do at the pump station. After waiting for something over an hour, the foreman came down with the cage, and upon arriving at the pump station (according to the testimony of Dean and Fuller), he exclaimed, “ Ho, boys, here is the cage:
The three men started for the cage; Tenney was nearest the cage, and got there first; the-foreman had stepped from the cage; Tenney sprang into it, when immediately the cage fell, with Tenney in it, to the lower level, and Tenney was-killed by the fall.
The foreman in his testimony says that he did not call out to the men, “ Ho, boys, here is the cage; ” he says that he gave them no order to enter the cage, and that he used no language calculated to convey the impression that they were to take the cage at that time. On the contrary, he testifies that the cage stuck in the timbers about two feet above .the
The evidence certainly tended to show that the cage was not in good order; the clutches or safety catches were particularly defective ; they were too much curved and the springs were too weak to make them work effectively. The foreman testified that the object of the clutches or safety catches was to hold the cage, in case the cable should break or if it should slack, and that if the clutches had properly performed their office they would have caught the guides and prevented the cage from falling. Counsel for appellant, in his elaborate brief, says: “It may well be granted, ex gratia, that the clutches in the cage were out of repair and failed to work.” ' But, as the learned counsel further says: “ This, without more, gives.the appellee no right of recovery.”
The evidence does not show that Tennej' knew of the condition of the cage or of its defective clutches or safety catches. He was a common miner employed with drill and pick at three dollars per day. The condition of the cage and the running of it, do not appear to have been within the sphere of his employment; his duty was to work under the direction of the foreman, who testified that he had the authority to employ and discharge such workmen when it was necessary.
Tenney was engaged in a dangerous occupation; he was working for the interest and profit of his employers; it was their duty, therefore, to exercise reasonable care and diligence in providing for his safety while thus employed. This duty included the exercise of reasonable care in procuring and
Upon the evidence produced it was the province of the jury to determine whether the defendants had or had not exercised reasonable care and diligence in respect to the condition of the cage and its appliances for preventing accidents.
Furthermore, it was a question for the jury to determine from the evidence whether Tenney was acting in the line of his duty and with reasonable care and caution,-or otherwise, in getting on the cage when he did. The evidence tended to show that he and his fellow workmen had been given to understand by the foreman that they were to go by the cage to the lower level to work in the mineral as soon as the cage should come down. -The foreman’s language, “Ho, boys, here is the cage ” (according to the testimony of Dean and Fuller) was calculated to convey the impression that the cage had arrived for that purpose. According to the testimony of the foreman, his reply to Tenney that he was making it “ pretty good,” was in no sense a -warning not to get on the cage. On the contrary, it was calculated to assure Tenney that everything was all fight. No reason is perceived why Brown should not have told Tenney that the cage was stuck, instead of answering that he was making it “pretty good.” From the evidence, the jury might well come to the conclusion that Tenney had reason to consider himself called to go' by the cage to the lower level. Under such circumstances, his prompt response to such call should not be set dowzi agaizzst him, but rather to his credit as a willing workman' zealous to advazice the interests of his employers. The issue upon the alleged contributory negligence of Tenney, as well as the issue upon the alleged negligence of the defendazrts, was upon the evidence adduced proper to be submitted to the jury. The court did not err in denying the motion for a nonsuit;
The object in requiring prayers for instructions to be numbered and signed is not for the information or guidance of the jury, but for the convenience of the court and the protection of the parties litigant in the matter of preserving their objections and exceptions. If a party omits this requirement; or suffers the opposing party to do so without objecting in apt time, he will ■ not be heard afterwards to complain of the omission. The trial court is not bound to entertain an objection' that instructions are not numbered and signed when the same is presented for’the first time on a motion for a new trial; nor will this court consider such an objection on appeal or writ of error, unless it appears that timely objection was made'in the court below. Wray v. Carpenter, 16 Colo. 271; B. & R. G. Ry. Co. v. Ryan, 17 Colo. 98; Gribbs v. Wall, 10 Colo. 160; Schoolfield v. Houle, 13 Colo. 394; Kan. Pacific R. Co. v. Ward, 4 Colo. 36.
This instruction which states the law with substantial’
5. It is assigned for error that one of the instructions permitted the recovery of exemplary damages. In substance that instruction stated the circumstances under which the jury might give such damages as they might deem just and fair (not exceeding $5,000) with reference to the necessary injury resulting to plaintiff from the death of her husband, having regard to the mitigating or aggravating circumstances attending the cause of such death; and that in computing such damages the jury should consider Tenney’s age, habits of industry and sobriety, his personal characteristics and qualities, his mental and physical capacity to render service, his business and the income derived therefrom, and the probability of his length of life, so far as such matters would affect the amount of damages to the plaintiff.
The former part of the instruction is substantially in the language of the statute. We are aware that in an action brought under the act of 1872, Session Laws, p. 117, this court, speaking by Mr. Justice Belford, declared that “ when the injury is the result of wantonness, violence or gross negligence, it is competent for the jury to award punitive damages.” Kan. Pac. Ry. Co. v. Miller, Admr., 2 Colo. 467.
If the statute provided that the jury in assessing damages should have regard to the “ aggravating circumstances attending any such wrongful act,” without more, it might, perhaps, be taken to indicate punitive damages; but as the word aggravating is used in contrast with the word mitigating, we are led to doubt that any such meaning was intended. Since mitigating circumstances relating to the act itself do not justify an assessment of damages less than compensatory, it is not reasonable to suppose that the aggregating circumstances contemplated by the statute are such as would justify an assessment of damages more than compensatory. Hence, a different idea must have been intended by the antithesis. Taken in connection with the preceding language of the sec
By the latter part of the • instruction, as above stated, the recovery was limited to compensatory damages substantially as laid down by Chief Justice Thatcher in the case of the D. & S. P. Ry. Co. v. Woodward, 4 Colo. 9. Tenney was a young man. 28 years of age and, so far as-appears, was of good character, industrious habits, and labored faithfully for the support of his family. The instruction.was not erroneous. If defendants desired further instructions upon the measure of damages they should have requested them. It is nowhere suggested in the record that the damages awarded were in excess of the necessary injury resulting to plaintiff by reason of her husband’s death.
Counsel for defendants prayed numerous instructions. Of these, the court gave a large .-number, but. ref used a larger number. The charge of the court - as a whole . was fair and complete. Some unnecessary instructions may have been
The judgment of the district court is affirmed.
Affirmed.