45 Colo. 416 | Colo. | 1909
delivered the opinion of the court:
Appellee, P. L. O’Hara, brought this action to recover damages for personal injuries sustained in September, 1902, while in the employ of the appellant. He was working in the screen room of its ore mill at Colorado City. The injury is alleged to have resulted through the negligence of the- appellant in not enclosing the end of a revolving shaft and’setscrew with a screen covering, and in leaving'them 'exposed. The screen where the’ accident occurred was a revolving cylinder about nine feet in length, three feet in diameter, on a shaft about twelve feet long, upon the end of which shaft was the set-screw which caused the accident. The set-screw was near
There was some dispute as to what the duties of the appellee were, and whether or not they were such as to warrant the assumption he must be held to have known and assumed the danger of the risk; also, as to whether the danger was open or obvious,also, as to the condition of the light in the room.
For about eighteen days, appellee had been employed by the company in its mill in the bedding floor below, during which time, it appears, he went once each day to this screen room, and brushed off these screens, eight to twelve in number. On the eighteenth or nineteenth day after his employment, by the foreman’s instructions, he took charge of these screens, and was on his second eight-hour shift when he received his injury. It appears his duties were to watch the machinery, make examination of the spouts, to see they did not clog up, and when they did, to immediately perform such labors as would relieve their condition, and prevent accumulation of ore in the screens, and the clogging of the elevators. There is evidence tending to show the appellee did not desire the employment in the screen room, preferring to remain below. The evidence is conflicting as to what instructions he received, if any, at the time he assumed this employment.
The evidence shows that, while appellee was showing a Mr. Fox (who was to succeed him)
The first assignment of error discussed by counsel relates to the sufficiency of the evidence to warrant the court in the submission, of the cause to the jury, claiming it was guilty of no breach of duty to the appellee; that the presence of the -uncovered setscrew and shaft constituted an open, obvious and incidental danger, which appellee assumed by virtue of his employment, and could,'by the exercise of ordinary care, have prevented the accident. It is a general rule, with certain exceptions, as stated by Mr. Justice Helm in the case of Wells v. Coe, 9 Colo., at page 160:
“In the purchase of safe machinery and appliances for use in his business, the master is required to exercise ordinary care and diligence; such care and diligence having reference to the hazards of the employment, and being proportioned to the dangers of the service. If, through the want of ordinary care in this respect, unsafe or defective machinery is procured, and the servant, without fault on his part, is thereby injured, the master is liable.”
In the same case, the learned judge also states:
‘ ‘ The master is likewise charged with the further duty of maintaining, in suitable condition, the machinery and appliances used in his business. In this regard he is also required to exercise ordinary care and diligence, and is liable for injuries, resulting*420 from his ordinary negligence, to the servant, without fault on the latter’s part. The question as to what shall constitute such ordinary care having reference likewise to the danger which the service naturally imposes upon the employee.”
These same principles of the law have been approved by this court in numerous cases: Sampson M. & M. Co. v. Schaad, 15 Colo. 197; Colo. Midland Ry. Co. v. O’Brien, 16 Colo. 219; Deane v. Light and Power Co., 5 C. A. 521; Moffatt v. Tenney, 17 Colo. 189; Grant v. Varney, 21 Colo. 329; D. & R. G. R. R. Co. v. Burchard, 35 Colo. 539.
The evidence in this case is conflicting, and we think, under proper instructions, was sufficient to go to the jury, for their determination.—Moffatt v. Tenney, supra.
The second assignment' urged by appellant in the evidence shows, had the appellee gone around another way, a distance of fifteen to twenty-feet further, it would have been a safe way and he could thereby have avoided the possibility of the accident. The appellee testified that he did not know the setscrew was there until after the accident happened. Also, he testified, as did Mr. Fox (the employee who succeeded him in this work) that the route he did go was the shortest, most direct and natural route and was the ordinary way in going to this particular screen, and the way he (Fox) went himself.
In the case of Colorado Central Ry. Co. v. Ogden, 3 Colo. 499, it was held, if a person of ordinary prudence would not have believed the defect dangerous, he may disregard it without losing his right to complain, if he suffers from the defect while pursuing the ordinary course. We do not think the fact that there was evidence tending to show that he could have gone around some fifteen to twenty feet farther in order to reach the place
The probabilities are, when we consider the general conditions at this time existing between the employer and the employee, that the employee usually does, and it is customary that he perform the. duties of his employment in the usual and ordinary way intended by his employer, and, in. case he does' not and insists upon a safer way, his period of employment soon terminates; and too often the question of the mode of performing, the duties to be performed, and the safety oí the machinery used, are not questions for his consideration; the paramount question with the employee being the securing of employment at all.
The fifth to twenty-ninth, inclusive, being twenty-five errors assigned, relate to the refusal of the trial court to give the twenty-five instructions offered by the appellant. . These alleged errors cannot be considered, because no sufficient objection was raised at the time of their refusal.
The, record shows, at the. conclusion of the evidence, the defendant, in twenty-five, alleged separate instructions, requested the court to instruct the .jury upon nearly every conceivable phase of the law ap
“1. Now the jury is instructed that it was the duty of the defendant to furnish a reasonably safe place in which the plaintiff was required to work. And if you find and believe, from a preponderance or greater weight of all the evidence, that the uncovered condition of the shaft and set-screws was dangerous to those working in the screen room in discharging their duties, and that it could have been covered so as to render it safe to those, working in said screen room, then it was negligence on the part of the defendant to leave said shaft and set-screws 'uncovered; and if you further find and believe, from a preponderance or greater weight of all the evidence that the plaintiff did not know the dangerous condition of said shaft and set-screws, and that the same was not obvious, and could not have been discovered by the plaintiff by the use of reasonable care and caution on his part, and that in discharging his duties he was required to be about and near to said uncovered shaft and set-screws, and so being near thereto in the discharge of his duties, the leg of his trousers Was caught by said uncovered shaft and set-screws, and his leg thereby broken, you will return a verdict for the plaintiff; otherwise, you will find for the defendant. ’ ’
The only other instructions given were a statement of the plaintiff’s claim, the amount of damages to be awarded, if any, and the forms of verdict, instruction No. 1 covering the entire law of the case. Whether the first part of this instruction, which states: “It was the duty of the defendant to furnish a reasonably safe place in which the plaintiff was re
“And if you find and believe, from a preponderance or greater weight of all the evidence, that the uncovered condition of the shaft and set-screws was dangerous to those working in the screen room in discharging their duties, and that it could have been covered so as to render it safe to those working in said screen room, then it was negligence on the part of the defendant to leave said shaft and setscrews uncovered,”
was error, for the reason without further modification than as stated in this entire instruction No. 1 which, as above stated, was the only one given on the subject, it would make the employer an insurer as to the safety of the appliances furnished his employee to work with, which is not the law in this jurisdiction. —Moffatt et al. v. Tenney, 17 Colo. 189; Grant v. Varney, 21 Colo. 329; The Carleton M. & M. Co. v. Ryan, 29 Colo. 401; City of Greeley v. Foster, 32 Colo. 292; D. & R. G. R. R. Co. v. Burchard, 35 Colo. 539; D. & R. G. R. R. Co. v. Warring, Admr., 37 Colo. 122; Harvey v. Mountain Pride Gold Mining Co., 18 C. A. 234; Hughes et al. v. Schnavel, 20 C. A. 306; Mississippi River Logging Co. v. Schneider, 74 Fed. 198.
The second portion “and that it could have been covered so as to render it safe to those working in said screen room, ’ ’ is not the test. It is true it could have been covered, and had it been done, the accident possibly would not have occurred. On the other hand, it must be conceded that any kind of machinery or any wheel or set-screw or other works in any machinery or any portion or part of nearly any conceivable kind of machinery could be covered so as to render it safe, or practically so, to those working in and about it, and we submit that these statements are not the test in this jurisdiction. In this case, by this language the court left the jury nothing to determine upon these subjects, which was error. These matters, along with the others, were such as should have been left for the determination of the jury. The tests should have been as to the first, whether or not the uncovered condition of the .shaft and set-screws, considering their size, location, etc., were so dangerous to those working in the screen room in discharging their duties that it was negligence upon the part of the company in so leaving them, and in doing so whether or not it exer
As to the second, it should have been left to the jury to determine whether or not it was necessary, in the exercise of reasonable care looking to the welfare and safety of those working in the screen room, that the employer should have covered the set-screw so as to render it reasonably safe, and in case it was necessary to do' so to make it reasonably safe, and it was not done, then the defendant was guilty of negligence and these errors were not cured by the other portions of this instruction which went to other phases of the case, incomplete within themselves, as to the duties of O’Hara.—Grant v. Varney, supra.
The judgment of the district court is reversed, and cause remanded for a new trial.
Reversed and remanded.