9 Colo. 159 | Colo. | 1886
Appellee, who was plaintiff below, bases her right to recover in this action upon the ground that the death of her husband was caused by defective machinery or appliances, in the purchase or repairing of which defendants below did not exercise the degree of care required by law. The following legal propositions relating to the subjects of negligence and contributory negligence .are deemed pertinent to the case:
First. 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. Colorado Cent. R. R. v. Ogden, 3 Colo. 499; Beach, Neg. § 123.
Second. The master is likewise charged with the fur
Third. Agents charged with the duty of procuring safe machinery, or agents charged with the duty of inspecting and keeping machinery and appliances in suitable repair, are not to be regarded as fellow-servants with those employed to labor in the business wherein such machinery or appliances are used, or, in some cases, even with those engaged to operate the same. The master is liable for injuries resulting, without contributory negligence, to other servants, through the ordinary negligence of his employee or agent thus charged with the duty of procuring or repairing, whether such negligence be in originally failing to purchase safe machinery or appliances, or in failing to keep the same in proper condition for use. Ford v. Fitchburg R’y Co. 110 Mass. 241; Whart. Neg, §§ 211, 212. Also Hough v. R’y Co. supra, and cases cited; Wabash Ry Co. v. McDaniels, 107 U. S. 454; S. C. 2 Sup. Ct. Rep. 932; Brann v. Chicago, R. I. & P. R. Co. 53 Iowa, 595; S. C. 6 N. W. Rep. 5, and cases cited; Chicago N. W. R’y Co. v. Swett, 45 Ill. 197; Shanny v. Androscoggin Mills, 66 Me. 420.
But to the foregoing general doctrines there are’some qualifications and exceptions, two of which will be mentioned: (a) This duty, however, on the part of the master, either in purchasing machinery and appliances, or in keeping the same in suitable condition, does not, as to the employee, amount to a'warrant of perfection therein, or a guaranty of absolute safety under all circumstances
The reason for this exception is self-evident. If, with knowledge, or with means of knowledge equal to his employer’s, of defects in the machinery, the servant, without remonstrance, voluntarily continues in the service, a waiver of his claim for damages is said to have taken place, or his conduct is regarded as negligence con
It will be noticed that these propositions of law all recognize the doctrine of contributory negligence. This doctrine, as sanctioned in Colorado, is defined as follows: “.If the plaintiff, or party injured, by the exercise of ordinary care, under the circumstances, might have avoided the consequences of the defendant’s negligence, but did not, the case is one of mutual fault, and the law will neither cast all the consequences upon the defendant, nor will it attempt any apportionment thereof.” Colorado Cent. R. Co. v. Holmes, 5 Colo. 197; Cooley, Torts, 614. Again, in Colorado Cent. R. Co. v. Martin, 7 Colo. 592: ‘‘One of the well-known and well-settled principles of the law upon the subject of negligence is that when the .plaintiff so far contributed to. the disaster by his own neglect, or want of ordinary care and caution, that but for such neglect, or want of care and caution, on his part, the misfortune would not have happened, he is not entitled to recover.”
A brief examination of the record before us, in the light of these legal principles, discloses the fact that at
The following facts clearly appear in evidence, and are practically uncontradicted, viz.: Coe represented himself, and was represented by others, to be a skilled and ex- ■ perienced miner, — a person competent to take charge of men and sink shafts, or do anything else usual and needful in the business of mining. Eelying upon his qualifications in this respect, he was selected by defendants to fill the position of “ foreman and boss of workmen,” and paid $4 per day. Neither of the defendants was to be regularly on the ground, and in their absence Coe had entire charge, except only as to the matter of hiring and discharging workmen, upon which subject the record is silent. His authority at the mine was plenary, save, perhaps, at such times as defendant Wells might happen to be present. The other employees, including the engineer 'and brakeman, were instructed to obey his orders. The working of the machinery and appliances was under his ■ control. They were put in motion or stopped at his command, and he determined the manner in which they should be operated “as to time, speed, — anything that might occur.” It was the engineer’s duty to make repairs, but Coe could order them made, and the engineer was bound to obey. Coe conferred with defendant Wells as to the general plan of operation, but in the latter’s absence determined when and how each particular part of the work should be performed. It was by his orders that the door placed upon the shaft for the purpose of preventing just such casualties-was removed; and it was under his directions that at the time of the accident, water was being hoisted while he was in the unpartiticned and uncovered shaft, upwards of two hundred feet below the surface, engaged in “chinking out the water streak.”
In view of these and other established facts, we hardly think it could be correctly said that Coe was under no obligation to examine or inspect such parts of the ap
In referring above to certain facts as established, we make full allowance for the probable effect upon Tyndal’s testimony at the trial produced in the minds of jurors • by the evidence of White and Brown. -The copy of Tyndal’s sworn statement before the coroner, offered in rebuttal, corroborates his testimony at the trial concerning Coe’s remarks about the brake. This statement was . made the day succeeding the accident, and being introduced by. plaintiff, the jury probably believed its contents. But nearly all the facts how under consideration are drawn from the testimony of Wells and Kipp, as well as that of Tyndal.
From the foregoing conclusion, based upon the evidence, it follows that in one respect the charge is seriously misleading. The second, fourth and sixth instructions given on behalf of plaintiff, while stating the. law correctly in a proper case, might well have led the jury to an erroneous verdict in the one at bar. 'By these instructions the jury were substantially informed that Coe was under no obligation to notice the machinery or appliances, or give any attention whatever to their condition and safety. The law, as we have seen, is otherwise. ■ The servant must possess a “fair measure of'skill for the service he undertakes.” It is his duty to use ordinary care in informing himself of the dangers and responsibilities attending his employment, and to take
The submission for defendants of instruction numbered if it can be considered as correctly and fully covering this subject, would not cure the error mentioned. Thei’e is no way of determining that the jury ignored the obvious and erroneous view expressed in a portion of the charge above referred to, and accepted another part thereof containing a proper statement of the law. Clare v. People, ante, p. 122.
But there is another proposition which may be equally decisive upon the question of reversal. The evidence above cited shows this to be a case wherein the rule concerning knowledge, or means of knowledge, of an employee as to the defects producing an accident, might, had it been properly stated to the jury, have produced a different verdict. Coe. had been on the ground, in charge of the business, for upwards of a week. He must frequently have seen all the hoisting apparatus. By his words and conduct he had shown that he considered himself capable of passing judgment upon the sufficiency of the brake; and no special training or peculiar skill,
The judgment is reversed and the cause remanded.
Elbert, J., did not participate in this decision.