Coe v. Van Why

Decision Date03 April 1905
Citation80 P. 894,33 Colo. 315
PartiesCOE et al. v. VAN WHY.
CourtColorado Supreme Court

Appeal from District Court, Teller County; Louis W. Cunningham Judge.

Action by Mrs. W. A. Van Why against W. R. Coe and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Wolcott, Vaile & Waterman (Wm. W. Field, of counsel), for appellants.

W. O Temple, S.D. Crump, and Chas. J. Perkins, for appellee.

CAMPBELL J.

Action for damages for injuries to plaintiff's husband through defendants' negligence, which resulted in his death. From a judgment in plaintiff's favor, defendants appeal. Among the assignments of error argued are that the evidence is insufficient to establish the negligence charged against defendants, that expert evidence was improperly received, and that plaintiff's counsel, in addressing the jury, abused the privilege of advocacy. The conclusion reached makes it unnecessary to notice other assignments.

1. Several closely contested questions of fact were submitted to the jury for its finding, and it is a fairly debatable question upon which side the preponderance of evidence lies. But we shall not reverse the judgment upon the ground that the verdict is not sustained by the evidence, and our only object in referring to this assignment is that it is pertinent in considering the other two.

2. The defendants were the owners of, and engaged in developing, a mine in the Cripple Creek mining district, through a shaft which was over 100 feet deep, when the injury was inflicted. The miners and material used by them were let down into the mine, and workmen and ores raised therefrom, in a bucket which passed up and down the shaft. It was raised and lowered by steam hoisting machinery. While plaintiff's husband, a workman in the mine, was being raised in this bucket, the enginner in charge lost control of it, and the bucket fell to the bottom of the shaft, and the miner was killed. Defendants are said to be negligent in using hoisting machinery, and appliances in connection therewith, which were unsuitable in construction and out of repair. Witnesses for plaintiff, after testifying to the nature and character of the hoisting plant, and describing other hoisting machinery in common use in that district, and specifying minutely the difference between the two kinds, and explaining fully the construction and state of repair of this one, were asked by plaintiff's counsel if, in their opinion, it was reasonably safe and suitable for the purpose for which it was used, and they answered that it was unsafe and unfit. Defendants say that this ruling of the court was prejudicial, in that it invades the province of the jury. The principle upon which expert or opinion evidence is allowed is well known, but the difficulty arises in applying it to the facts of a given case. No general rule applicable to all cases can be enunciated, but each one must be determined largely upon its own peculiar facts. It does not appear that this hoisting plant was a complicated piece of machinery, but, as we read the record, it was exceedingly simple in construction and operation; and all the facts relating thereto, as well as its condition of repair, could be fully explained to the jury. It is not altogether clear just what particular acts of negligence plaintiff charged, but the chief reliance seems to be that the machinery was not properly supplied with a band brake, and that the key which secured the drum appliance to the shaft was out of repair. Just how this brake operated and the use and character of the key, and its condition as to repair, were fully explained to the jury by the witnesses. There was no necessity for them to give to the jury their opinion as to the safety of the hoist, for the jury were as capable of determining that fact from the evidence in the case as were the witnesses themselves. Sappenfield v. Main St. R. Co., 91 Cal. 48, 27 P. 590, in some of its features, is much like the case at bar; and it was there held that when the question to be determined is the result of common experience, or is to be inferred from particular facts which are fully before the jury, the inference from these facts is to be drawn by the jury, and not by the witnesses. Shafter v. Evans, 53 Cal. 32; Newmark v. Ins. Co., 77 Am.Dec. 608. The general rule is that, if the circumstances out of which the negligence arises have been or can be established by proof, the ultimate fact of negligence is to be deduced by the jury, and is not to be shown by the opinion of witnesses. Plaintiff relies upon McGonigle v. Kane, 20 Colo. 292, 38 P. 367. In that case it was held competent to permit an expert witness to give his opinion in regard to the safety of an elevator, with reference to its being a safe or unsafe appliance for the purpose for which it was used. Probably it carries the rule concerning opinion evidence as far as any other found in our Reports, but a careful examination of its facts will show that, because of certain alterations, it was difficult, if not impossible, for witnesses to bring before the minds of the jury the facts concerning the construction and condition of the contrivance, from which they could draw an inference as to its safety. Whether or not it was in a safe condition at the time and in the circumstances was a fact not within the knowledge of a man of ordinary experience, but could only be determined--at least, better be decided, so the court declared--by a machinist who possessed a peculiar skill and knowledge with reference to a contrivance of that character. Here, as has been said, the...

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22 cases
  • FW Woolworth Co. v. Davis, 187.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 6 Junio 1930
    ...Yoast v. Sims, 122 Okl. 200, 253 P. 504; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59; Coe v. Van Why, 33 Colo. 315, 80 P. 894, 3 Ann. Cas. 552; Coon v. Manley (Tex. Civ. App.) 196 S. W. 606; Martin v. Lilly, 188 Ind. 139, 121 N. E. 443; Sawyer v. Arnold Shoe Co.,......
  • Fielding v. Publix Cars, Inc.
    • United States
    • Nebraska Supreme Court
    • 13 Marzo 1936
    ...v. J. M. Arnold Shoe Co., 90 Me. 369, 38 A. 333;Rodzborski v. American Sugar Refining Co., 210 N.Y. 262, 104 N.E. 616;Coe v. Van Why, 33 Colo. 315, 80 P. 894, 3 Ann. Cas. 552;Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288, 94 So. 281;Goss v. Williams, 196 N.C. 213, 145 S.E. 169;Holloway......
  • Fielding v. Publix Cars, Inc.
    • United States
    • Nebraska Supreme Court
    • 13 Marzo 1936
    ...Sawyer v. Arnold Shoe Co., 90 Me. 369, 38 A. 333; Rodzborski v. American Sugar Refining Co., 210 N.Y. 262, 104 N.E. 616; Coe v. Van Why, 33 Colo. 315, 80 P. 894; Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 94 So. 281; Goss v. Williams, 196 N.C. 213, 145 S.E. 169; Holloway v. Telfer, 136 ......
  • Rice v. Van Why
    • United States
    • Colorado Supreme Court
    • 4 Abril 1910
    ...Judge. Action by Mrs. W. A. Van Why against D. H. Rice. Judgment for plaintiff, and defendant appeals. Affirmed. See, also, 33 Colo. 315, 80 P. 894. This an action by Mrs. W. A. Van Why, begun December 5, 1899, in the district court of Teller county, to recover $5,000 from D. H. Rice and W.......
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