Colorado Fuel & Iron Co. v. Gardner

• Decision Date: 13 February 1912
• Citation: 121 P. 680,21 Colo.App. 273
• Parties: COLORADO FUEL & IRON CO. v. GARDNER.
• Court: Colorado Court of Appeals

121 P. 680

21 Colo.App. 273

COLORADO FUEL & IRON CO. v. GARDNER.

Court of Appeals of Colorado

February 13, 1912

Appeal from District Court, Pueblo County; C.S. Essex, Judge.

Action by Mary Gardner against the Colorado Fuel & Iron Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Devine, Dubbs & Preston, D.C. Beaman, Fred Herrington, and Cass Herrington, for appellant.

M.J Galligan, for appellee.

HURLBUT J.

Action for damages by appellee (plaintiff below) against appellant (defendant below) for the death of plaintiff's husband while in the employ of appellant.

The evidence tends to show that plaintiff's husband, Thomas Mulligan, in April, 1894, at Pueblo, Colo., was in the employ of defendant at its steel works in the converter department and while so employed as a pitman with others in raising and removing large steel ingots from one of the furnaces preparatory to loading the same on cars, received fatal injuries, from which he died the next day. There was a large hydraulic crane which was operated by a young boy, who was located during his employment on a platform somewhat raised above the general floor of the building. To this crane was affixed a steel chain, to which was attached a pair of tongs or hooks similar in appearance to ice hooks, but weighing about 100 pounds. It appears that some 4 or 5 ingots, weighing about 3,000 pounds each, were moulded from the furnace at what is known as one "heating," and, as they became sufficiently cooled, these tongs were thrown over the ingot desired by a pitman, immediately after which the machinery was set in motion, the ingot raised up above the moulds, and then moved laterally to the point where they were deposited. The tongs were not pointed like ice hooks, but the extremities of the two arms of the tongs were square across. It appears that it was necessary that the edges of the tongs should be kept sharp, for the reason that, when the crane raised the ingot, the weight increasing on the tongs had a tendency to cause the edges to imbed themselves somewhat in the ingot as it was raised from the mould. On the day of the accident Mulligan, plaintiff's husband, had placed the tongs upon the ingot in question, which act was termed "dogging the ingot," immediately following which the ingot was raised by the crane, but not high enough to prevent the bottom from striking the mould. Just at this time it seems that Mulligan had a long pole, to the ends of which were affixed iron hooks. One end of the pole he placed against the ingot and the other against his stomach, and in this position was endeavoring to push the ingot away from the mould as the crane was traveling from the furnace to the place where the ingots were deposited. While so engaged the ingot slipped from the tongs, and in falling struck the pole violently, driving the end against the stomach of Mulligan, thereby causing the injuries of which he died.

The whole case, as to facts, seems predicated upon the condition and use of the tongs. It is alleged in the pleadings and contended by plaintiff that the proximate cause of Mulligan's injury was the dull condition of the tongs, which permitted the ingot to slip from them. The great weight of testimony, including that of several men in the employ of defendant and who were present at the time and saw the accident, tended to establish an unsafe and dull condition of the tongs at the time of the accident, and this, as contended for by plaintiff, constituted the negligence of the defendant. The record, as well as the briefs in this case, is very voluminous, there being 87 assignments of error, a great proportion of which we apprehend were assigned through an over-abundance of caution on the part of counsel. This case has been before the former Court of Appeals, from which it was remanded for a new trial. Mulligan v. C.F. & I. Co., 20 Colo.App. 198, 77 P. 977.

Thirty-eight separate instructions were requested by defendant, three of which, Nos. 1, 27, and 28, were given as requested. Six, Nos. 4, 7, 20, 23, 26, and 29, were modified and given. Eleven, Nos. 2, 3, 8, 14, 15, 21, 25, 30, 33, 35, and 37, were refused, but their subject-matter was substantially included in instructions Nos. 3, 14, and 16, given by the court.

Of the remaining eighteen, 5, 6, 9, 10, 11, 12, 13, 16, 17, 18, 19, 22, 24, 31, 32, 34, 36, and 38, Nos. 9, 10, 11, 12, 17, 24, 34, and 38 a re not discussed by appellant in its brief; hence require no notice here.

A great proportion of the instructions refused were quite short, being to some extent mere repetition of the subject-matter, differing only in phraseology, not in substance, and we think militated against the law as established by our Supreme Court, or were not applicable to the facts disclosed by the evidence. The instructions given, taken as a whole, are noticeably fair and impartial. If the scales of fairness be questioned, the balance would swing in defendant's favor, as a number of instructions given appear to be more favorable to it than the testimony warrants. We do not think it necessary to take up the discussion of the court's action on each instruction, as it would unnecessarily prolong this opinion without any corresponding benefit to the litigants or the profession. We have scrutinized each instruction given, refused, or modified, and such scrutiny has failed to create any substantial doubt as to the correctness of the rulings of the trial court in settling the instructions, and we have been unable to discover any reversible error in such rulings.

Appellant contends that its full duty was performed when it furnished the tongs suitable for the work required and a blacksmith nearby ready to sharpen them when necessary; that the tongs were a simple tool, the condition of which, as to being sharp or dull, could be more readily observed and known by the servant than by the master, hence deceased assumed the risk; that deceased was a fellow servant with the foreman, Moriarity, hence no action could be maintained against defendant under such circumstances.

The decisions of the Supreme Court of this state have established the rule (whatever rule may obtain in other jurisdictions) that it is the duty of the master to use ordinary care to provide the servant with reasonably safe appliances, and to exercise ordinary care to maintain them in proper repair, which duty cannot be delegated so as to exonerate the master from liability. Wells v. Coe, 9 Colo. 159, 11 P. 50; N.Y. & C.M.S. Co. v. Rogers, 11 Colo. 6, 16 P. 719, 7 Am.St.Rep. 198; Grant v. Barney, 21 Colo. 329, 40 P. 771; D. & R.G.R. Co. v. Sipes, 26 Colo. 17, 55 P. 1093; Colorado M. & E. Co. v. Mitchell, 26 Colo. 284, 58 P. 28; Carleton v. Ryan, 29 Colo. 401, 68 P. 279; McKean v. C.F. & I. Co., 18 Colo.App. 285, 71 P. 425; Roche v. D. & R.G.R. Co., 19 Colo.App. 204, 73 P. 880.

And, further, that those to whom is delegated the duty of inspecting the appliances, and seeing that they are kept in suitable repair for the purposes required, are not regarded as fellow servants with those employed in the business in which the appliances are used; such persons being considered as representing the master. Colorado M. & E. Co. v. Mitchell, supra; D. & R.G.R. Co. v. Sipes, supra.

Thomas Crowe testified, and the evidence shows without dispute, that at the time of the accident he was in the employ of defendant; that he had been connected with the converter department for nearly 13 years, and was superintendent thereof; that Con Moriarity was the pit foreman, and that it was the duty of the pit foreman to attend to the repairing of the tongs that were used on the ingots, and see that they were kept sharp and in reasonably safe repair; that, when the...