11 Colo. 6 | Colo. | 1887
The ground of recovery upon which plaintiff below relied was negligence on the part of defendant in not furnishing and maintaining safe machinery or appliances for the work in which he was engaged. The .rule upon this subject is familiar. It will be found sufficiently stated in Wells v. Coe, 9 Colo. 159.
As to the defective condition of the appliance in use, and the negligence of defendant in connection therewith, the evidence is conflicting. The witnesses upon this question offered by the respective parties are about equal in number, and where conflicts occur the jury undoubtedly accepted the testimony of those produced by plaintiff. Such election of the «jury will not be questioned by us.
Bearing this in mind, we turn to the testimony, and find that the bucket supplied was large, being the half of a barrel which had been sawed in two in the middle; that it was detached from the rope when hoisted, and reattached upon lowering; that about eight feet of the lower end of the rope in use had been wet, and was frozen stiff, so that it could with great difficulty be fastened to the bail of the bucket; that this rope was adjusted at the time of the accident in the usual manner, that is, in the way the men were in the habit of making the fastening. There is conflict as to whether a “pin” was furnished, and as to whether the frozen rope could have been passed through the loop in the bail so as to use a
But it is argued by counsel for appellant that there was error in admitting proof of the foreman’s declaration as to the unsafe condition of the connecting appliance furnished. No doubt exists about the making of the statement, for the foreman admits it. Counsel’s position is that, being made after the injury, it should have been regarded as hearsay and rejected. According to the testimony of one witness, the declaration was made about thirty minutes after plaintiff was hurt; another witness declares that it was made “ just after the accident, ” but admits on cross-examination that it might have been “half an hour after;” while the foreman himself, who was defendant’s witness, says it was “immediately after the accident.” The foreman was defendant’s agent in charge of the mine, and was upon the ground when plaintiff was injured. He proceeded at once to the shaft, and directed the employees to fix the
It is not necessary to discuss the specific assignments of error relating to the charge. Each of defendant’s instructions refused was defective in one or more important' particulars, and should not have been given. Considered as a whole, the charge is not obnoxious to the objections urged in argument. The judgment is affirmed.
Affirmed.