Clifford v. Denver, S.P. & P.R. Co.

• Decision Date: 27 December 1888
• Citation: 12 Colo. 125,20 P. 333
• Parties: CLIFFORD v. DENVER, S. P. & P. R. Co.
• Court: Colorado Supreme Court

20 P. 333

12 Colo. 125

CLIFFORD v. DENVER, S. P. & P. R. Co.

Supreme Court of Colorado

December 27, 1888

Appeal from district court, Arapahoe county.

Action for damages by Henry Clifford against the Denver, South Park & Pacific Railroad Company.

This is an appeal from an order of the district court granting a new trial under the third clause of section 2 of the act of 1885 p. 350. The cause of action is that the appellant's health was permanently injured, and he forever disabled from earning his living, by the neglect and failure of the railwaycompany, the appellee, to comply with its contract made with him to furnish him suitable lodging while engaged in its employ in the construction of a certain wagon road in the Rocky mountains.

The complaint alleges that he was hired by the officers and agents of the appellee, in the summer of 1880, as a common laborer, in the construction of a wagon road over Alpine pass,--the contract of hiring being that the appellee was to pay him $1.50 per day, and furnish him with suitable board and lodging; that this contract was complied with while appellant worked on the eastern slope of the Rocky mountain range, but when the camp was removed over the range, to a point beyond the summit, where the altitude was very high and the days rainy and sometimes hot, and the nights cold the lodging accommodations contracted for were not furnished that the cots or bunks previously provided were left behind and that the agents of the defendant wholly neglected and failed to furnish necessary shelter and beds to protect the plaintiff and others from the inclement weather there prevailing; that he and his co-employes immediately protested to the agents and officers of the appellee against such treatment, notifying them that, unless comfortable lodging was furnished them, they would immediately quit work, whereupon they were assured by such officers and agents that, if they would not abandon the work, but remain, comfortable lodging would be immediately provided for them; that these promises were renewed from time to time, but were never complied with, although the plaintiff, relying upon their fulfillment, did remain and continued to work. It is further alleged that while he 'was relying on such promises and assurances of said defendant, and for two or three consecutive nights, plaintiff was compelled to sleep on the cold, wet, and frozen ground, without anything under him except damp branches of pine or spruce trees, and without sufficient blankets or bad-clothes to cover him, and protect him from the cold, whereby plaintiff was taken dangerously sick from such exposure, and became wholly paralyzed in his whole body, and in all of his limbs, and became wholly unconscious, and so remained for several months, whereby his health was permanently ruined and destroyed for life, and his constitution shattered and so broken down that he has never recovered from the same, and never will; that plaintiff has become a cripple for life, and has suffered great bodily pain during all of said time, and still suffers pain and great mental anguish, and has been, and still is, wholly helpless, and unable to work and attend to or follow any business of any kind, or earn a living in any manner, and has become a pauper in the poor-house in this county.' Damages were claimed in the sum of $25,000.

The answer is a denial of all the material allegations of the complaint, and charges contributory negligence, which charge was denied by the replication.

A jury trial was had at the September term, 1887, of the district court, at which the appellant supported the allegations of his complaint by his own testimony. He stated that the contract of hiring was made by the section foreman or boss in charge of the gang of men with whom he worked, and that the promises to furnish bunks to sleep on, if the men would not abandon the work, were made by the appellee's superintendent of construction, Lon S. McAleer. The deposition of the superintendent was introduced, denying that any such promises were made by him, and likewise denying any knowledge or recollection of the plaintiff.

The jury returned a verdict of $3,000 in favor of the appellant, and the court rendered judgment thereon. A new trial was subsequently allowed, on the ground of surprise and the absence of the foreman who hired the plaintiff. Other material facts appear in the opinion.for defendant moved for a new trial on the ground of surprise, and filed an affidavit that, from a conversation had with plaintiff's attorney before trial, he supposed that plaintiff was hired by the superintendent of construction, and had been to trouble and expense to obtain his testimony; that he had had no opportunity after plaintiff's testimony was given to obtain the evidence of said foreman, whose name even was not yet discovered; and that said testimony was important, and would, as affiant believed, contradict plaintiff's testimony as to the contract. Counsel for defendant filed his cross-affidavit, to the effect that the only representations he made were that such a man was superintendent of the work, and that the men were paid by checks drawn by another man named; that nothing was said as to who employed plaintiff; and that he did not give the name of the foreman, because he did not know it. The complaint set out the terms of the contract; that it was made by defendant's agents and officers on a certain date; the places where plaintiff worked and was injured. It appeared that defendant's foremen were all empowered to hire men as needed. Held, that defendant had been negligent in making no inquiry as to the foreman during the several years that elapsed between the filing of the complaint and trial.

George H. Gray, for appellant.

Teller & Orahood, for appellee.

BECK, C.J., ( after stating the facts as above.)

The act of 1885 permitted an appeal to this court from an order of the trial court when it granted or refused a newtrial. Although the provision was afterwards repealed, and is no longer the law of this state, it was in force when the order was made from which this appeal was prosecuted.

It is strongly urged as a reason why the order of the court below should not be disturbed that under the Code of Iowa, from which, say counsel, our law of 1885 was derived, the presumptions were always in favor of the action of the court when it granted a new trial; for in making such order the court was vested with a discretionary power, which was never interfered with except in a clear case of abuse, or where there was a clear preponderance of evidence showing the ruling to be wrong. It is also urged that the presumption in favor of the correctness of an order granting a new trial is held to be of grater weight than in cases where the application is denied. Several Iowa cases are cited to these propositions.

Trial courts may certainly exercise a reasonable discretion in granting new trials, when discretionary grounds exist and are relied on by the applicants. It seems to us, however, that if the rule of practice concerning judicial discretion be as broad as contended for by appellee's counsel, a statute authorizing an appeal from such an order is of little practical effect, for the exercise of judicial discretion would render it a dead letter. In order to give it reasonable effect, trial courts must be required to make correct rulings on legal propositions. Where the ground of the application is insufficiency of the evidence to support the verdict; that the verdict is against the weight of the evidence; that it is unjust and inequitable, and the like,--a reasonable degree of discretion exists to allow or deny a new trial; and, when the questions involved in the application are close, the ruling of the court should not be interfered with. On the other hand, if the ground of the motion relied on does not in fact exist, or does not constitute a legal...