Carleton Min. & Mill. Co. v. Ryan

• Decision Date: 03 March 1902
• Citation: 29 Colo. 401,68 P. 279
• Parties: CARLETON MIN. & MILL. CO. v. RYAN.
• Court: Colorado Supreme Court

68 P. 279

29 Colo. 401

CARLETON MIN. & MILL. CO. v. RYAN.

Supreme Court of Colorado

March 3, 1902

Appeal from district court, Lake county.

Action by Ellen A. Ryan against the Carleton Mining & Milling Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Steele J., dissenting.

Wolcott, Vaile & Watterman (W. W. Field, of counsel), for appellant.

Patterson Richardson & Hawkins, for appellee.

GABBERT J.

This action was commenced by appellee to recover of appellant damages resulting from the death of her son, caused by the alleged negligence of the company. The latter denied that it was guilty of negligence, and contended that the death of the son was the result of his own negligence and that of his fellow servants. From a judgment in favor of plaintiff, the defendant appeals.

Deceased was killed by a stull falling down a shaft in which he was employed by the company. The vital proposition involved, as presented by the assignment of errors argued by counsel for appellant, is whether or not the testimony tends to establish that neglect to properly secure this stull was negligence for which the company is responsible. The complaint was framed and the cause tried by plaintiff upon the theory that the defendant was guilty of negligence in failing to provide a reasonably safe place for deceased to work in, while the defendant contends that the failure to secure the stull was the neglect of the deceased, or that of his fellow servants. In order to determine these questions, it is necessary to briefly review the evidence bearing on the issue of negligence as made by the pleadings,--not, however, for the purpose of determining the facts from conflicting testimony but to ascertain if there is evidence tending to prove that the proximate cause of the death of the son was negligence for which the company is responsible, or conclusive on the question of contributory negligence on the part of the deceased which would bar a recovery.

The company was engaged in sinking a shaft, and it became necessary to extend the water pipe connected with the pump used in keeping the shaft clear of water. For this purpose deceased assisted in placing two stulls some distance from the bottom of the shaft, the purpose of which was to support the proposed extension of pipe. One stull was securely fastened, and the other not. As to what occurred when the work reached this stage, the evidence is in some respects conflicting. There is testimony to the effect that the principal timberman who was assisting or had charge sent one of the parties engaged in the work to the pumpman to ascertain how far apart the stulls should be placed; that the latter replied the one stull could not be permanently fastened until the pipe was put in; that the timberman then left, cautioning deceased and a co-employé who was assisting 'to be sure and nail the stull when they got their pipes down through.' From this time it does not appear that the timberman had anything further to do with the work in question. Immediately after he left, deceased and others went to work, under the direction of the pumpman, to put in the pipe. When this was completed, inquiry was made of the pumpman if the unsecured stull should not be nailed, to which he replied, in substance, that he would do so, and, on being told by the party making this inquiry that he would not go down in the shaft unless it was nailed, stated that he would attend to it. The pumpman denies making any such promise. The conversation, it is said, occurred in the presence and hearing of the deceased. The foreman of the company testified that putting down the pipe was part of the pumpman's duty, and that this work was under his supervision. Three days after the pipe had been put in place, the water having been pumped out in the meantime, deceased and others went to the bottom of the shaft, and, in moving the pump, dislodged the unsecured stull, which fell and killed him. As a matter of fact, the stull never was nailed, nor do we understand it is contended that it was otherwise properly secured. The material and simple question of fact was whether the fall of the stull was the result of the negligence of deceased and those who immediately assisted him in placing it, or the negligence of the pumpman. If by the former, there could be no recovery; if by the latter, then the proposition presented is, does the testimony tend to established a state of facts from which it can be inferred, in law, that the relationship of the pumpman to the company was such that his alleged declaration that he would secure the stull rendered the company liable for his failure to do so?

As applied to the conditions proper to consider in this case, the law is that an employer is required to exercise ordinary care in providing a reasonably safe place for his employés to work in. The employé to whom he delegates the performance of work which necessarily involves this duty becomes his representative, and negligence in the performance of such work by such employé is the negligence of the employer, as to other employés engaged in different work in another place which the employer is required to make reasonably safe. Grant v. Varney, 21 Colo. 329, 40 P. 771; Railroad Co. v. Sipes, 23 Colo. 326, 47 P. 287; Id., 26 Colo. 17, 55 P. 1093. Thus tested, it was the duty of the company to exercise ordinary care in rendering the shaft reasonably safe for the performance of the work in which deceased was engaged when killed. If it delegated to the pumpman the supervision of putting down the pipe line, and he had control of this work, he would not, in its performance, be a co-employé or co-servant with others working in the bottom of the shaft, in the legal sense of these terms; and negligence upon his part in doing this work, which was the proximate cause of the son's death, would be the negligence of the company. In other words, in such circumstances the pumpman, as the representative of the company, would have supervision and control of the placing of a timber which, if not properly secured, would render the shaft dangerous to those working at the bottom. In placing such timber, he was bound to exercise ordinary care in making it secure; and his negligence in not doing so, if that was the proximate cause of the son's death, would be negligence for which the company must answer.

The next question to determine is whether or not the deceased was guilty of negligence which will bar a recovery. If deceased and his co-employés (omitting, of course, the pumpman) were alone responsible for the condition in which the stull was left, then plaintiff could not recover, because the results following were caused by their own negligence. Deceased knew that the stull had been left unsecured. According to the testimony, however, he was advised that it would be nailed by the pumpman. Three days elapsed between the time when this promise was made and the date when the accident occurred. If, therefore, the promise to nail the stull was made by the pumpman, as claimed, and he was charged with the supervision of putting in the pipe line, deceased would certainly have a right to rely upon the promise that the stull would not be left unfastened. There is no evidence which tends to show that he had any reason to believe that this promise had not been fulfilled. If, on the other hand, he and those assisting him were told by the timberman to secure the stull, and, without any intervention on the part of the pumpman, left it unsecured, then he and his co-employés were guilty of such negligence as would preclude a recovery in this case. Thus it appears from a discussion of the legal propositions bearing on the issues of negligence made by the pleadings, in connection with the testimony, that there is evidence tending to prove culpable negligence on the part of the company, and the absence of contributory negligence on the part of the deceased. Of course, it will be understood by counsel, from what we have already stated, that we express no opinion as to what the testimony does in fact establish on the issues of negligence; our purpose being merely to ascertain if the testimony sustains the verdict, if the jury was properly instructed.

Thus far the conclusions announced on the propositions considered are in harmony with similar ones discussed and determined in the original opinion. The only remaining question we shall determine relates to an instruction given by the court, which reads as follows: 'The jury is instructed that the rule which obtains in the state of Colorado is that for the acts of the vice principal, done within the scope of his employment, and such as properly devolve upon the master in his general duty to his servants, the master is liable; while for all such acts as relate to the common employment, which are on a level with the acts of the fellow laborer, except such acts as are done by the vice principal against the reasonable objection of the injured servant, the master is responsible. In other words, the test of the liability is the character of the act, rather than the relative rank of the servant.' To this instruction an exception was noted as follows: 'Defendant then and there and at the time duly excepted to the court's giving the foregoing instruction to the jury, and to the giving of each paragraph thereof.' There is no question but what the instruction above quoted is erroneous, in that it omits the word 'not' before the word 'responsible.' In the original opinion it was thought that the exception to this instruction was insufficient to raise the question of the incorrectness of the instruction on account of the omission of the word 'not,' mainly because it might be said that the omission was an inadvertence. Upon further...