36 Colo. 498 | Colo. | 1906
delivefed the opinion of the court:
Appellee, as plaintiff, commenced an action against the appellant, as defendant, to recover damages for the death of her husband, resulting from injuries sustained by falling down the shaft of a mine owned and operated by the defendant, in which he was employed. The jury returned a verdict for the plaintiff. From a.judgment thereon the defendant appeals. We shall consider the errors assigned
1. In examining the jurors on their voir dire, counsel for plaintiff was permitted, over the objection of the defendant, to ask them whether or not they, were interested, as agent or otherwise, or ever had been interested, in The Frankfort Marine Accident & Plate Glass Insurance Company. In the selection of jurors counsel are allowed considerable latitude not only for the purpose of ascertaining whether grounds exist for challenges for cause, but, also, for the purpose of intelligently exercising peremptory challenges. Such questions are for the purpose of eliciting information from, and not imparting it to, the jurors. They are not barred, however, though directed to matters not in issue, provided it appears they are pertinent, are made in good faith, and for the purpose of excluding from the panel partial or prejudiced persons, or those who-, by reason of interest in the result, would be incompetent. —U. P. Ry. Co. v. Jones, 21 Colo. 341; Swift & Co. v. Platte, 72 Pac. (Kan.) 271.
The fact that the defendant may have been insured in the company named against loss resulting from the death of an employee was not an issue; nor would such insurance affect its liability to the plaintiff ; but where, as iñ this instance, the inquiry of the jurors was limited to their interest in the insurance company named, and nothing more, it was not error to allow such inquiry as would develop their interest • in the result of any judgment which might be*obtained by the plaintiff any more than any other which might show such an interest in the result of the action as to render them incompetent as jurors.
In this connection it is also urged that the court erred in permitting counsel for plaintiff to bring out, on cross-examination of the witness, Brooks, the' fact that whatever judgment should be rendered against the defendant would have to be paid by the insurance company. The defendant had pleaded a release. The witness was offered to prove its execution by the plaintiff. It appears that he was not employed by the defendant to secure this release, but in doing so was acting as the agent of the insurance company. There was a conflict in the testimony with respect to the circumstances under which this release was obtained and it was competent for the plaintiff to bring to the attention of the jury the interest which the witness, by virtue of his relation to the insurance company, had in securing the release, as well as in the result of the action. Matters brought out on cross-examination which are legitimate for the purpose of enabling the jury to determine the credibility of a witness, are not objectionable, although they may relate to questions not in issue in the case.
2. The complaint contained two counts: The first alleged that the injury which caused the death of plaintiff’s husband resulted from the negligence of the defendant in failing to furnish the deceased with a safe place in which to work. The second count was based on the' Co-employee Act, found in the Session Laws of 1901, at page 161, and alleged
Tested by tbis rule, it is apparent tbat tbe court did not err in overruling tbe motion of tbe defendant to require tbe plaintiff to elect upon wbicb count she • would stand, because, having tbe right to plead her cause of action in two' counts, she bad tbe right to submit to tbe jury for their determination which count was established, subject, of course, to such control of tbe court as might be proper upon the evidence.
3. Over tbe objection of tbe defendant tbe court permitted witnesses on tbe part of the plaintiff to testify tbat tbe rails guarding tbe entrance to tbe shaft down which tbe husband of plaintiff fell were constructed or arranged differently from those intended to serve tbe same purpose in other mines in tbe vicinity. Tbis is assigned as error upon tbe ground tbat proof of a custom or usage cannot be shown to establish negligence.
In the circumstances of tbis case it is not necessary to pass upon tbe proposition raised by tbis assignment of error. According to tbe undisputed testimony it appears tbat tbe injury to tbe deceased was caused by the negligence of a co-employee unless it appeared tbat deceased was guilty of contributory negligence. Tbe deceased and several others bad congregated near tbe shaft in a level waiting for tbe cage to be lowered to elevate them to tbe surface. Tbe cage at tbis time was suspended in tbe shaft several feet above tbe level in which they were stand
Mr. Justice Campbell concurs in the conclusion, that if the testimony objected to was incompetent, its reception was. not prejudicial; but, without expressing his opinion as to the reasons given therefor by the Chief Justice, he thinks it may be on other grounds.
4. It is next contended by counsel for the appellant that the deceased had assumed all risk incident to the use of the guard-rails. While it is true, as a general proposition, that an employee impliedly
5. The next point made by counsel for appellant is, that deceased was guilty of contributory negligence. In addition to the facts already stated, the following are also pertinent in considering this question : The deceased was the nearest one to the shaft on his side. When the cage began to descend he ap
It is settled by repeated decisions of this court that when the determination of the question of contributory negligence depends upon inferences which may be drawn from facts and circumstances of a character that different minds may honestly draw different conclusions therefrom, the question should be left to the jury. That was done in this case, and unless from the testimony we can say, as a matter of • law, that one conclusion only could be drawn, namely: That the deceased was guilty of contributory negligence, the determination of the jury cannot be disturbed. The deceased was in plain view of the person whose culpable act in raising the guardrails at the time he did left the entrance to the shaft unguarded. The deceased was not aware of this act. It was not the custom to raise these rails until the cage had descended to its place. It was not necessary to do so. As a reasonably prudent person, he was not called upon to anticipate that any one on the opposite side of the shaft, aware of his presence, would recklessly expose him to the danger incident to raising the guard-rails, an appliance expressly provided to prevent employees from falling into the shaft when the cage was not in place. — Shearman & Eedfield on Negligence (5th ed.), §92. The only act of the deceased which savors of negligence is the one of facing his comrades, and apparently attempting to lean upon the guard-rail, without noticing whether it was in place. It should have been, and except for the negligence of a. co-employee, would have been. What a reasonably prudent per
6. Counsel for appellant claim there is’ a variance between the allegations of the complaint and the facts proved. This contention is clearly without merit. The complaint alleged, in effect, that it was necessary for the deceased to approách the shaft along the level he was in in order to get on the cage which was being lowered to that level to raise him and his co-employees to the surface. The variance claimed is, that the evidence disclosed that deceased approached the shaft for the purpose of leaning against the guard-rail, while waiting for the cage to descend. While this may be true, it is not a variance. He was there waiting for the cage to descend, and his movements just preceding the time when the cage did descend were but an incident to the purpose for which he approached the shaft.
7. The defendant, as a bar to the action, pleaded that the plaintiff, for a good and valuable consideration, had released it from all claim which she might have against it for the death of her husband, and that such release was evidenced by a written instrument signed by her. To this defense the plaintiff replied that she had not at any time received from the defendant any consideration of any kind or description in satisfaction of the death of her husband. The issue thus presented was whether or not there was any consideration for the release pleaded. That question was fairly submitted to the jury by an instruction, and as the issue of consideration was the only one with respect to the release upon which
8. The final and important question is the validity of the Co-employee Act, supra. This is attacked upon the ground that the requirements of the constitution relative to the passage of bills were not observed in the passage of this act. .A consideration of that question involves a finding of fact. No such issue was made by the pleadings in the trial court. The party seeking to question the validity of an act upon a ground which involves a question of fact must, in some appropriate way, raise it in the trial court and present the testimony upon which he relies to establish such fact. — Marean, v. Stanley, 21 Colo. 43; Peckham v. People, 32 Colo. 140; Anderson v. Grand Valley Irr. Dist., decided at January t*erm last.
"When thus presented, it may be preserved by bill of exceptions and reviewed by this court, but such question will not be considered on review in the first instance.
It is also urged that the act is unconstitutional in that it is in conflict with the fourteenth amendment to the federal constitution, because it deprives persons of their property without due process of law. The act in question renders the employer liable
Whether or not the employer is liable under the act in question must be determined by each particular case based on the provisions of that act. It does not deprive him of any defense to the liability thereby imposed which, under the established rules of law, could be regarded as sufficient, save and except his
For the purpose of providing for the safety and protection of employees in the service of a common employer, the law-making power has the undoubted
The judgment of the district court is. affirmed.
Decision en banc.
Affirmed.