51 Colo. 440 | Colo. | 1911
delivered the opinion of the court:
On July 2, 1907, Allen Richardson, Jr., a boy of nine years, was killed by falling down a shaft belonging to the El Paso Consolidated Gold Mining Company. His parents brought suit to recover damages based upon the ground that the negligence of the defendant caused the death of their son. At the conclusion of the testimony the defendant moved the court to instruct the jury to return a verdict in its favor for the reasons:
“First: Because the pleadings are not sufficient to support a judgment in favor of the plaintiffs or either of them; and
Second: Because the evidence is not sufficient to authorize a judgment in favor of the plaintiffs, or either of them.”
The motion was sustained, and plaintiffs bring the cause here for review on error.
The complaint charged that the shaft, in Question was abandoned: that it belonged to the defendant; that it negligently failed to securely fence or cover the shaft.; that plaintiffs and their children lived within one hundred and ten feet of the shaft: that it was in close proximity to roads and highways extensively used by miners and others in going to and from their work;
For answer the defendant admitted the ownership of the shaft, but denied the negligence charged, and pleaded contributory negligence of deceased and his parents. It also denied that the shaft was abandoned, and alleged that long prior to July 2, 1907, it had, at the request and solely for the accommodation of the plaintiffs, and without receiving any compensation therefor, granted them permission to erect and occupy during its will and pleasure, the house wherein plaintiffs were living at the time their son was killed, which house was located on the mining premises of the defendant. about one hundred and ten feet from1 the shaft; that plaintiffs'placed their house on the premises and commenced to reside therein with full knowledge of the condition of the premises and the shaft; that .at no time during the period mentioned did the defendant alter or change the condition of the premises or shaft, and that during the whole of this time the plaintiffs, as well as deceased, were thoroughly familiar with the condition of all the shafts, dumps, excavations and paths in the immediate vicinity of their residence, and of the shaft referred to in their complaint. To these defenses, so far as affirmative, a replication was filed.
The laws of this state require — § 18, p. 364, Laws 1903; i 4297 Rev. Stats. — “thát all abandoned mine ' shafts, pits, or other excavations endangering the life
On behalf of the defendant it is now contended that the complaint does not state a cause of action; that the law upon which the plaintiffs predicate their rights is unconstitutional; that the section in question is so indefinite and uncertain as to render it unenforceable; that neither deceased nor plaintiffs belong to the class of persons for whose benefit the law was enacted; that the evidence does not establish that the shaft was abandoned; that the law does not apply except as to shafts abandoned after it went into effect; and that plaintiffs were mere licensees whose rights were not violated by a failure of the defendant to protect the shaft by suitable covering or felices.
The act in question is entitled “An act to regulate the construction, equipment and operation of metalliferous mines, mills and metallurgical plants, providing penalties for violations thereof, and repealing all acts or parts of acts in conflict herewith.” Based upon this title, it is urged that in the absence of an allegation that the shaft was upon a metalliferous mine, the plaintiffs have not stated a cause of action, within the provisions of the statute. Conceding that the act only applies to mines yielding metals, it is apparent from the complaint that the Australia was of this character. The name of the defendant indicates that it is engaged in mining gold ores. The complaint alleges that it is, and that defendant was the owner of a certain mining property known as “The Australia Lode Mining Claim, situate on Beacon hill, in the Cripple Creek Mining District, County of Teller, State of Colorado.” The statutes of this state on the subject of mining claims located upon veins speak of them as “lode claims,” which it is well understood means a mining claim con
In support of the contention that the statute is unconstitutional, it is urged that the legislature is without authority to require the owner, of a mining claim to keep it safe for intruders, and that doing so is, in effect, taking property for the use of another without compensation. Neither of these propositions are applicable to the facts of this case. The legislature has the power, within reasonable limits, to prescribe regulations for the safety of the public. We think the act comes within that authority. Mining claims are not enclosed by fences. Their boundaries are only usually marked by posts, one at each corner, and one at the center of each side line. They are located in the mountains in the vicinity of unoccupied and unenclosed Government lands. They are crossed and re-crossed by miners going to and from their work; by prospectors searching for other mines; in fact, by all classes of persons following their usual vocations in the vicinity where located, including children of tender years. In such circumstances, an open, unprotected shaft is a menace to life and limb. In the night-time or in a storm, persons may fall into it, or children may thoughtlessly approach too near the edge and be precipitated to the bottom. Reasonable provisions requiring an abandoned shaft to be so protected as to prevent such casualties come clearly within the police powers of the commonwealth. The statute is not unconstitutional. — Platte & Denver C. & M. Co. v. Dowell, 17 Colo. 376.
The claim that the statute is unenforceable for ambiguity is based upon the assumption that the person upon whom the duty rests to cover or fence an aban
It is said the plaintiffs and deceased do not belong to the class of persons for whose benefit the law was enacted, because it was only intended to protect persons engaged in operating mines. The statute is not susceptible of so narrow a construction. On the contrary, from the very nature of mining claims, and the dangers to be guarded against from the presence of unprotected, abandoned mining shafts, it was intended to afford protection to the public generally.
It is contended that a niine shaft is not abandoned unless it appears the owner left it without any intention of again using it, and that the evidence does not establish such intention on the part of the defendant. For a long time prior to the time when the boy was killed, the defendant had not used the shaft. There is no evidence tending to prove that it had been abandoned according to the legal definition of that word, in the sense that defendant had ceased to utilize it with the intention of never using it in the future. This, however, is not the test. The intent of a statute is the law. The cardinal rule of statutory construction is to discover and enforce its intent. In construing a statute the cause and necessity for it, the object in view, and the evil which it is intended to remedy should always be taken into consideration in determining its intention; consequently, words employed should be given that meaning, when possible, which will result
It is urged that the act, when reasonably construed, only applies to shafts abandoned after it took effect. That construction would but partially remove the danger which the statute was directed against. It cannot be so limited unless words are supplied, or the statute given a construction by implication which its plain meaning does not justify.
The evidence discloses that the father of deceased, with the consent of the defendant company, had constructed a house upon the Australia claim, which he was occupying with his family at. the time of the death of his son, and that no charge was made for the use of the ground upon which the house stood, or for any part of the Australia claim. On this state of facts it is contended that plaintiffs, as well as the deceased, were mere licensees, which did not entitle either of them to the use of the dump in the immediate vicinity of the shaft, which was about one hundred and ten feet from the house; that deceased was, therefore, a trespasser when upon the dump, and at the shaft, or, if the license extended to the immediate vicinity of the shaft, which was there when the house was constructed, the defendant violated none of its obligations growing out of the relationship of owner to licensee or trespasser. The proposition is wholly inapplicable. Plaintiffs’ action is not based upon the ground of a failure on the part of defendant to fulfill any obliga
This brings us to a discussion' of the vital questions in the case, which are, does the evidence establish as a matter of law, the following propositions:
(1) That the defendant was not negligent;
(2) That deceased was guilty of negligence, or that defendant was under no duty to him in the circumstances of this case to keep the shaft covered; and
(3) That the parents were guilty of negligence which precludes their recovery.
When the questions of negligence or contributory negligence depend upon facts to be determined from conflicting evidence, or from inferences to be drawn from facts and circumstances of that character that different intelligent minds may honestly reach different conclusions, they should be left to the determination of the jury. — Lord v. Pueblo S. & R. Co., 12 Colo. 390; Empson Packing Co. v. Vaughn, 27 Colo. 66; D. & R. G. R. R. Co. v. Spencer, ibid 313; City of Denver v. Hyatt, 28 Colo. 129; Monarch M. & D. Co. v. DeVoe, 36 Colo. 270; Farrier v. Colo. Spgs. R. T. Ry. Co., 42 Colo. 331.; Nichols v. C., B. & Q. R. R. Co., 44 Colo. 501; Denver City Tramway Co. v. Wright. 47 Colo. 366; Kent Mfg. Co. v. Zimmerman, 48 Colo. 388.
Beaming in mind this rule, we will consider the auestions of negligence and contributory negligence in the order indicated.
The failure to perform a statutory duty imposed by a valid statute under the police power of the state for the protection of the public is negligence ver se.— Platte & Denver C. & M. Co. v. Dowell, 17 Colo. 376.
The evidence appears to establish that defendant did securely cover the shaft in 1902. 'The boy was killed in July, 1907. Prom the evidence he probably jumped or stepped upon a board of the cover which broke, or on the end of one which was loose. Touching the condition of the covering immediately or shortly after his death, there is testimony to the effect that some of the boards were loose; that some were dry-rotted and warped; that none were sound except one, and that although the boards may have been originally nailed, the nails had pulled loose; that the stringers supporting them were so decayed that they would not hold the nails, and that it only required a slight jar to loosen the boards. Within a radius of four "hundred feet of the shaft there were fifteen or sixteen houses, occupied by families with children aggregating in number about twenty, ranging from two to sixteen years of age. These children often played upon the dump made by the material taken out in excavating the shaft. There is evidence tending to prove that the superin
Referring to these repairs, the superintendent testified (quoting from the abstract) : “Did not instruct him to cover this particular shaft. As a matter of fact, do not know whether he did cover it or do anything with it at all; did not examine it to see whether he did, only in just passing it. In just passing it could see the boards were over the shaft. That was all. Assumed that the men had done their duty. * * *”
Speaking of the manner in which the boards were laid, the witness continued: “As I remember, they laid length-wise of the shaft. * * * From 1904 to 1906 it was covered lengthwise of the shaft. Do not remember ever seeing .any cross-boards. They were always lengthwise, as I remember. That was so at all times up to the time the little boy was killed.”
The deceased was nine years of age. His mother had. directed him to empty some chicken feed into a hole a short distance below the Australia shaft. He had not been gone long when his mother looked out. She says, “Allen did as I told him, took the chicken feed and went to the little hole, went down that way. * * * The next time I saw Allen was when I came back into the kitchen and looked out. He was stooping over-, hold of this board. He was at the end farthest away from the house. Just immediately, when I saw him bend over, he stepped forward on the board and went down, and he just called ‘Mamma’!”
His brother William, who had also been sent on an errand at the same time, after explaining why he had not seen the deceased all the time after leaving the house, said: “Just as I went past the green-house, saw my brother Allen down there. Saw him stoop over. He was at the Australia then, at the end farthest away from the house. He was stooping over, like this, get
A neighbor woman testified that “At the time of the accident, lived about two hundred feet up the slope of Beacon Hill above this Australia shaft. Was standing on the back porch stamping some pictures, when I saw Allen and Willie leave the house. As they got to the far edge of the shaft, they parted, Allen going towards the shaft and Willie going above the greenhouse, and as Allen got to the shaft I looked away, at my picture again, and when I looked again he was stooping over, holding the board, and as I thought, 'pulling the board over the shaft. He had hold of the board, then stepped on it, and sprang up and down ’ several times. He did not jump. I hollered to Willie, and told him Allen fell down the shaft. * * *
“Q. Was he pulling the board? A. It looked as if he was pulling it over the shaft. He was pulling towards the west. He was on the bucket side, or the shaft side. Right after he pulled the board, he stepped on it and sprang up and down on it. The board commenced to go down with him, and it was slow in going. He almost got off, and tripped and went over. He went head first.”
If the deceased had been an adult, this testimony might very well be said to have established such contributory negligence on his part as to preclude a recovery ; but persons of tender years are not held to the same degree of care that a mature and experienced person is required to exercise. Minors, not prima facie sui juris, are required to exercise such care to avoid danger as might fairly and reasonably be expected from persons of their age. This is a question to be determined in each case by the circumstances of.that case. If there is a fair doubt as to the child being of
The deceased, by reason of his age, was not prima facie sui juris. He was only required to give such attention to his surroundings, and care to avoid danger from the condition of the cover, as might fairly be expected from one of his years. The question then presented is, whether or not he was capable of appreciating the danger to which he was exposed in removing a board and attempting to replace it by stepping upon it, or upon a board partially decayed to such a degree” that he should be held responsible for these acts. In the circumstances of this case, we think this was a question of fact, to be determined by the jury, and not one of law for the court.
But it is urged that defendant was not under any duty to deceased to keep the shaft covered. In a measure, at least, we ■ have already determined this question to the contrary. Children must be expected-to act upon childish instincts and impulses. They thoughtlessly expose themselves to danger. Those who are chargeable with a duty of care and caution towards them must calculate on this, and take precautions accordingly. The Australia was not enclosed. Mining claims rarely are. Artificial conditions created by the owners render the surface of such claims dangerous to those passing over them. People pass over, and children play upon them. . To prevent injury to the public, including children, the General Assembly has required abandoned shafts to be covered. This, as we have said, is a valid police regulation, and the failure
The final question relates to the alleged negligence of the parents. On behalf of the defendant it is urged that they failed in their parental duty to guard their child from a peril known to them. It was not negligence to take up their abode in' a mining camp, and upon a mining claim. The most that can be claimed is, .that plaintiffs were required to exercise that degree of care and caution to prevent injury to their son from known dangers, or dangers which, by the exercise of reasonable care, they could have known existed in the vicinity of their residence, which reasonably prudent persons would have exercised under similar circumstances. The record does not disclose that as a matter of law they failed to exercise such care. The mother had directed her son to empty chicken feed in a hole in the near vicinity of the' shaft. She had not sent him to the shaft, neither did his errand compel him to go there. He appears to have done so of his own volition. At the trial plaintiffs sought to show that his mother had warned him not to walk on the covering of the shaft. At the instance of the defendant, this testimony was refused. Clearly, if the mother had warned her son not to walk upon the shaft covering, it would tend to prove care and caution on her part.. In 1906 the covering of the shaft was out of repair, a board being loose. The parents sent an older son to repair it. He said he nailed the board, but that the stringers were not in a good condition to hold nails. The father testifies that shortly after his son repaired the covering, he examined one end of the board, and it seemed secure. Not long after this the defendant' claims to have repaired the covering. The evidence
Several minor propositions have been argued by counsel for plaintiffs, which we do not deem it necessary to consider in detail. They relate to the admission and rejection of testimony. We have considered the three important questions' in the case, and testimony tending to prove or disprove the issues bearing , on them is competent.
The judgment of the district court is reversed and the cause remanded for a new trial.
Reversed and remanded.
Decision en banc.