29 P. 1007 (Colo.App. 1892), Davis v. Graham

Citation:29 P. 1007, 2 Colo.App. 210
Opinion Judge:RICHMOND, P.J.
Party Name:DAVIS et al. v. GRAHAM.
Attorney:Wells, Macon & Furman, for appellants. Morrison & Kohn and C.C. Post, for appellee.
Case Date:May 09, 1892
Court:Court of Appeals of Colorado

Page 1007

29 P. 1007 (Colo.App. 1892)

2 Colo.App. 210

DAVIS et al.



Court of Appeals of Colorado

May 9, 1892

Appeal from district court, Clear Creek county; C.F. BECKER, Judge.

Action by Daniel J. Graham against Lytle E. Davis and others for injuries received in their employ. Judgment for plaintiff. Reversed.

Wells, Macon & Furman, for appellants.

Morrison & Kohn and C.C. Post, for appellee.


On July 29, 1890, plaintiff, Graham, was in the employ of defendants, [2 Colo.App. 211] and was working as a miner in a certain shaft sunk from the drift at the tunnel level of the Silver Glance lode to the depth of about 90 feet. In the course of such employment it became his duty to drill holes and place and fire cartridges of blasting powder, and to sink said shaft, and to run drifts and other workings as he might be directed or expected to do. It is alleged that defendants failed to maintain in said shaft ladders or other proper contrivances for ascent and descent;

Page 1008

that plaintiff had to ascend and descend the said shaft by catching with his feet and hands in the cracks between the timbering of said shaft; that such means of ascent and descent were not a proper contrivance; that on the day and year aforesaid, when plaintiff was working, after he had placed the cartridge in a hole drilled by him in the end of said shaft, and had fired the fuse to discharge said cartridge, it became the plaintiff's duty, and was an ordinary and useful incident to his employment, to descend the shaft, and see if water had reached said drill hole, and, if so, to act accordingly; and for this purpose he came down said shaft and was standing about 10 feet above the drill hole and above the bottom of the shaft, at a point where he was safe from the discharge of the cartridge; that while so standing, holding to the cribbing, owing to the want of sufficient ladders or other support, and without negligence on his part, plaintiff fell from said point to the bottom of said shaft at the instant when the blast aforesaid was about to explode, and too late to return or take any means to prevent the explosion, or remove himself beyond the effects thereof, and that while plaintiff was at the bottom of the shaft said blast exploded and injured plaintiff. His right eye was destroyed, and the sight of his left eye partially destroyed, and plaintiff was wholly blind for about three weeks. The sight of his left eye has never become restored, and plaintiff received other wounds and bruises, and for a long time thereafter suffered great pain and anguish, and has thereby permanently lost the sight of his right eye and the eye itself. The sight of his [2 Colo.App. 212] left eye has been permanently weakened, and his power to earn a living by work at his occupation of mining, or any other business, has been much impaired. Wherefore he claims damages in the sum of $10,000. Defendants answer, and admit that they were in the possession of the mining premises; that the plaintiff was in their employ, and that the duty of the plaintiff in such employment was substantially as in the complaint set forth. They deny that upon the occasion in the complaint mentioned it became and was the duty of plaintiff to ascend and descend the shaft in the complaint mentioned for any purpose whatsoever. Admit that he did descend the shaft, and was injured by the explosion, and confined under medical treatment for a considerable time; and, further, that the injury occurred to plaintiff solely by his own negligence without fault of defendants, or any of them. The replication denies that the injuries resulted from negligent conduct or without the fault of defendants. The cause was tried to a jury, and a verdict rendered for plaintiff in the sum of $1,500. Motion for a new trial overruled, and judgment entered upon the verdict.

The plaintiff testifies that he began working for the defendants on July 29, 1889; that the accident happened on the night of August 11th, about 11 o'clock; that he...

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