Bishop v. Brown

• Decision Date: 13 March 1900
• Citation: 61 P. 50,14 Colo.App. 535
• Parties: BISHOP v. BROWN. [1]
• Court: Colorado Court of Appeals

61 P. 50

14 Colo.App. 535

BISHOP v. BROWN. ^[1]

Court of Appeals of Colorado

March 13, 1900

Appeal from district court, Arapahoe county.

Action by Edward F. Bishop against Benjamin B. Brown, as administrator, etc. From a judgment in favor of defendant plaintiff appeals. Affirmed.

Wells, Taylor & Taylor, for appellant.

Ward &amp Ward, for appellee.

BISSELL P.J.

The growth of the state and the development of its industries are giving rise to an increasing litigation, and constantly thrusting on our attention questions as yet undetermined in our jurisdiction, and compelling the court not only to apply settled principles, but often to determine what line of conflicting adjudications shall be followed. It is not probable that a question of more intrinsic difficulty and of graver importance has been presented for consideration than the one suggested by this record. The distressing casualty killed the owners of the Gumry Hotel, who were buried in its ruins, totally destroyed the building, and wrought injury to the adjoining premises. The administrator of the estate was heretofore sued by one who was injured by the explosion, and in that suit we had occasion to determine whether the action against the proprietors, who were killed by the accident, survived their death. We held that the action did not survive. Letson v. Brown, 11 Colo.App. 11, 52 P. 287. The present suit was brought by the appellant Bishop, to recover the damages resulting from the partial destruction of a part of the adjacent building, which he owned. The necessities of the decision require the briefest statement of the circumstances of the accident. It occurred on the 18th of August, 1895. The hotel was then owned and operated by Gumry & Greiner, and they had put and maintained in the basement of the hotel a boiler which furnished power for hoisting purposes, and the various uses for which power was requisite in the management of the establishment. The boiler was in charge of one Lescher, who was the engineer employed by the proprietors. The plaintiff substantially alleged his ownership of a four-story brick and stone building, occupied by a tenant at a fixed rental. The ownership of Gumry & Greiner was stated, and the use of a steam boiler averred. The plaintiff then alleged that they did not keep the boiler in safe, sound, and good repair, and did not employ skillful, competent, and prudent servants, but permitted the boiler, which they knew to be weak, unsafe, and out of repair, to be kept in use, and retained Lescher in their service, knowing him to be unskillful, negligent, and addicted to the use of liquor. The plaintiff then charged that by reason of the weakness of the boiler and the failure to repair it, and the incompetency and negligence of the servant, the boiler exploded. The plaintiff then laid his ad damnum at $6,000. Issue was taken by proper answer, and the case came to trial. On the conclusion of the plaintiff's evidence he was nonsuited, and from this judgment of nonsuit he prosecutes this appeal.

It would be profitless, and not other than an attempt to satisfy counsel, who would probably remain unconvinced, to essay even a summary of the plaintiff's testimony. We shall, therefore, in the discussion, simply express our conclusions as to the result or legal effect of the plaintiff's case as he made it, under the appropriate subdivisions of the opinion, and express in detail only the law, which as we conceive, bars the plaintiff's recovery. In bringing a suit to recover damages for injuries occasioned by the act of another, as a general proposition the plaintiff assumes the burden to establish that the act which occasioned him the injury was negligently done, or that the plaintiff had omitted the care which the law imposes on him in the conduct of his own affairs, or the management and use of his own property. The old maxim, "Sic utere tuo ut alienum non laedas," is frequently used to express the idea of the duty which every man owes to his neighbor, but it is likewise frequently held to express an obligation other and greater than that which the law imposes. While a much-abused maxim, in the extent to which its central idea has been applied, it contains a germ of legal truth, which is as well expressed in that form as in any other. It is almost universally true that he who would recover from his neighbor, because of what he did, must show that the thing which the neighbor did was negligently done or done without right. There are exceptions to the rule, and we shall ultimately consider whether this case is brought within an exception. If not, the case is still subject to the general doctrine, which is of first importance, and established by all the decisions, that the case must contain evidence which establishes, or from which the jury may reasonably conclude, that the defendant was negligent in what he did, or in omitting to do that which he ought to have done, to protect his neighbor. This is one of the fundamental principles in actions of negligence, and wherever, as it has often been said, the evidence is consistent with either view, or, as it is put in the Cotton Case, with "the existence or nonexistence of negligence," the matter should not be left to the jury. This principle must be kept in view during the consideration of this case. It ought not to be lost sight of in any action based on the negligence of a defendant. It does not often happen that the importance and significance of this principle stand out so clearly as in the present case, and there are few in which its importance is more evident, because, as we shall ultimately decide, it comes within none of the exceptions laid down by well-considered cases in the United States. Cotton v. Wood 8 C.B. (N.S.) 568; Baulec v. Railway Co., 59 N.Y. 356; Hayes v. Railway Co., 97 N.Y. 259; Smith v. Bank, 99 Mass. 605; Wells v. Coe, 9 Colo. 159, 11 P. 50; Holman v. Security Co., 20 Colo. 7, 36 P. 797. Many other cases might be cited, but, since there are none to the contrary, these will suffice to support our first premise.

So far as concerns the evidence, it may be here stated that the plaintiff introduced no proof showing or tending to show that the defendants Gumry & Greiner were negligent in the use or maintenance of the boiler. It is quite true that there is evidence by one or two witnesses to the point that the boiler had been permitted to get out of repair, and in this respect the proprietors were negligent. Taking the plaintiff's case, however, as a whole, and taking all of his evidence together, this fact was not established, because he produced proof which tended to show, not only that the boiler was a good boiler when purchased, but also that it had been put in complete repair, and had been properly tested by the authorities whose duty it was to examine it, and that a certificate was issued to the owners, authorizing them to use it at a certain pressure. When the plaintiff made this proof, he surely negatived and overcame the very slight proof which he offered to the other proposition, and in this respect, and to this extent, failed to show that the accident occurred because of the negligence of the owners, either in putting the boiler in, using it after it was placed in the hotel, or continuing to use it after it had gotten into a condition which rendered its use unsafe. This premise is so closely interlocked with the subsequent proposition that we shall only further state the testimony in connection with the discussion of this element of the case. The basic principle on which the appellant contends he ought not to have been nonsuited is the presumption which he insists results from the accident. Put in simple shape, the appellant contends that when he made proof of the use of a boiler and of the explosion, and then proved his injuries, the presumption of negligence to be deduced from the fact of the explosion was enough to entitle him to go to the jury. This proposition we shall controvert, and hold the law to be that no such presumption arises from the explosion of a stationary steam boiler. We will now state our conclusions respecting the proof:

The only witnesses offered by the plaintiff were some half dozen in number, and all of them mechanics. According to their testimony, offered to establish their competency, it appeared that all but two were what are known as practical mechanics or boiler makers, who had worked at their trade, and had been engaged in the running of stationary plants and plants using steam power, for a series of years. Whatever knowledge they had was acquired by experience in the use of metals, the manufacture of boilers, and the operation of steam plants. None of them, save two, made any pretension to what would probably be aptly termed a scientific mechanical and engineering education. In stating these facts, we have no purpose to minimize the weight, force, or value of the testimony given by them, because we are quite ready to concede, and in fact firmly believe, that a large practical experience, if combined with an investigating spirit and an attempt to learn the principles by which scientific results may be ascertained and expressed, may, equally with a technical education, qualify the person to testify. What impresses us most with regard to the testimony of these witnesses is that none of them, or at least not more than two of them, seem to have much conception of either the structural or chemical properties of steel and iron, or of the modes and methods by which educated engineers, in an investigation of this sort, attempt to determine whether an explosion occurred by reason of a patent defect, or from some latent and inherent defect which the owner and operator of the boiler could not detect by the use of ordinary care. It is only with reference...