25 Colo. App. 441 | Colo. Ct. App. | 1914
Appellee, plaintiff below, brought her action against the Fuel Company to recover damages occasioned by the death of her husband, Mike Maccia, an employe of the Company, and had judgment for $3,500. The defendant company was operating a coal mine in Boulder County, in which Maccia was working as a common miner. The mine was operated through a main tunnel or haulway, running north and south, entries being driven easterly and westerly at right angles from this haulway into the coal body. The coal extracted from the entries was transported from the entries in cars down the haulway to a shaft, and thence by cage to the surface.- While walking northward from the shaft in the hanlway, Maccia was run upon by a trip or train of cars, loaded with coal, which was proceeding southward to the shaft, and received injuries, from which he shortly died. There were six cars in the trip, and attached to the cars was a mule, the mule and cars being in charge of one Benton, a driver. The track on which the cars of coal were being hauled was laid on a grade sloping to the south, or towards the shaft, at least for tlie greater portion of the distance. The driver, Benton, testified that the cars, at the parting or switch where they were placed by other haulers who brought them from the entries, and where he picked them up for the purpose of hauling them to the shaft, were held stationary at that point by means of a sprag or iron bar run through the spokes, of the wheel. .When it was desired to start the cars down the grade to the shaft, it was Benton’s custom to remove this sprag, when the cars would start, by the force of gravity, south upon the track, running upon the mule, which in turn would start off, in order to keep out of the way of the
1. The evidence shows conclusively that immediately before pulling the sprag from the cars and starting the trip down grade on its way to the shaft, Benton was talking with another driver on the parting, who was in the act of starting with another trip of cars into an entry; that Benton kept his back towards the shaft while thus talking, and while pulling the sprag, and maintained this position after the cars had started, for he testified that he climbed upon the cars as they started, and rode backwards, with his back to the shaft and towards Maccia, who was walking up the grade from the shaft, until the very instant of the collision. The evidence further shows that for considerably more than one. hundred feet immediately preceding the collision, Maccia had been walking up the grade, on a straight track, and would have been, by reason of the light in his cap, in plain view of Benton had the latter been paying any attention whatever to conditions down the track in front of the mule. Owing to Benton’s position on the car, and owing to the lack of brakes and signals, his conduct constituted negligence quite as gross as though he had blown out his lamp before starting* the cars, and had started the mule and cars down the grade unaccompanied by anyone. Under such circumstances, it is idle to contend that there was not abundant evidence to warrant the jury in finding Benton guilty of negligence, no matter what their findings may have been as to the negligence of the mining company in not properly equipping its mine with safety devices.
2. It is contended by defendant that Maccia assumed the risk, not only of the failure of the mining
“Complaint is made of the court’s omission to give an instruction on the assumption of risks. There was no occasion for doing so. An employe never, under our statute, assumes the risk of the future, unanticipated negligence of his .co-employes of a railroad.”
And, in Hackett v. Wisconsin Ry. Co., 141 Wis., 464, 124 N. W., 1018, 45 L. R. A. (N. S.), 664, it is said:
“Under the existing statutes in this state, a railroad employe, in the line of his duty, does not assume the risk of negligence of his co-employe, excepting, perhaps, in the case where he knowingly, voluntarily, and unnecessarily submits himself thereto.”
Other authorities have stated the rule even more strongly against the contention here made in behalf of appellant. See Rhodes v. Des Moines Ry. Co., 139 Ia., 327, 115 N. W., 503; Phinney v. I. C. Ry. Co., 122 Ia., 488, 98 N. W., 356. Under none of the authorities above ' cited can it be ruled, on the circumstances of this case, that Maccia assumed, as a matter of law, the risk of the negligence of the driver, Benton.
3. The trial court instructed the jury that the burden of proving contributory negligence was placed upon the defendant company. Counsel for defendant predicates error on this instruction, and upon the theory that since one of the counts in the complaint was based upon the fellow servant statute, and since said statute gives a remedy denied by the common law, that he who would
4. The haulway or tunnel, which has heretofore beén described, was separated into compartments by a door, which was in charge of a boy some fourteen years of age, whose sole duty, so far as the evidence discloses, was to open and close this door in order to permit footmen and the coal hauler to pass from one compartment to another. The lad in charge of this door is denominated a “trapper boy.”. He testified on the trial that on the day of the accident, when he let Maccia pass through the door on his way from the shaft northward
5. On cross-examination of the boy, McNulty, coun- • sel for appellee, brought out the fact that the company
“Q. I will ask you whether Martin McNulty made any statement to you after the occurrence of the accident to Mr. Maccia, with reference -to a conversation at the door near the point where he was employed as a trapper boy?”
Counsel for plaintiff made the following objection to this question:
“I object as incompetent and immaterial, and as an attempt to bolster up the evidence of the witness, as to which no evidence has been introduced to attack it.”
The record shows the objection was sustained, and the defendant excepted. Upon this ruling defendant predicates error, and urges here that it was manifestly prejudiced in not being permitted by the court to show that McNulty had made the same statement with reference to his warning to Maccia to Superintendent O’Neill, immediately after the accident and before any favors which might have influenced him had been extended to him or his parents. It will be observed that the question propounded to O’Neill does not at all indicate when McNulty made any statement to him, if it be assumed
We have by no means discussed all of the contentions urged on behálf of defendant, nor can we do so without unduly prolonging our opinion. We have contented ourselves with a discussion of those which we think are of sufficient seriousness to warrant reference. The instructions, as a whole (and the jury was warned by the trial court that the instructions must be considered together and as a whole), were fair to the defendant — some of them over liberal to it — and we observe no prejudicial error in the admission of the testimony. The'verdict of the jury precludes any • contention of passion or prejudice, or undue sympathy on its part, in view of the fact that it returned a verdict for but $3,500, whereas, the maximum under the statute permitted a verdict of $5,000. Indeed, when the age, the exemplary habits, the earning capacity and the industry of the deceased, as disclosed by the record, are considered, we are obliged to conclude that the jury acted with unusual moderation, and wfe are not disposed to disturb its verdict.
Counsel for defendant say in their brief: “The court nor the jury can properly take judicial notice of how a coal mine ought to be operated, or as to what is practicable and good usage among prudent operators.” In a measure, of course, this is true, but only in a measure. Where the negligence is gross, as we believe the evidence in this case discloses it was, neither courts nor juries may properly shut their eyes, forswear their own judgment, and await the coming in of expert testimony concerning some physical fact, or omission of duty, patent to everyone.
Judgment Affirmed.