Colorado Milling & Elevator Co. v. Bright
| Decision Date | 10 November 1924 |
| Docket Number | 11076. |
| Citation | 76 Colo. 338,231 P. 1111 |
| Parties | COLORADO MILLING & ELEVATOR CO. v. BRIGHT. |
| Court | Colorado Supreme Court |
Rehearing Denied Jan. 5, 1925.
Department 2.
Error to District Court, Alamosa County; J. C. Wiley, Judge.
Action by Aubrey V. Bright against the Colorado Milling & Elevator Company. Judgment for plaintiff, and defendant brings error and petition for supersedeas.
Supersedeas denied, and judgment affirmed.
W. W. Platt, of Alamosa, John I. Palmer, of Saguache, and J. P. Veerkamp, of Monte Vista, for plaintiff in error.
Bright had a verdict and judgment below for personal injuries caused by the alleged negligence of the plaintiff in error. The case comes here on writ of error and motion for supersedeas.
The principal contention is that there was no evidence of negligence. Plaintiff was injured by falling into a cement pit, in an engine room under construction, which pit was made to accommodate a large fly wheel. The pit was 5 feet wide, 5 feet deep, and say 25 feet long. It was bridged near the middle by four planks, each 2 inches thick and 1 foot wide. The plaintiff was engaged with three other workmen in moving a heavy piece of machinery on a hand truck; he was pulling on the handles of the truck, and the others were pushing on the load to get the vehicle onto the planks which formed the bridge. In some unexplained way the load fell off the truck, which, thus lightened, went suddenly forward, and so caused plaintiff to fall into the pit and receive the injuries of which he complains.
The negligence if any was in failure to cover the whole pit. The question in this case is, therefore, whether, under the circumstances, the defendant was negligent in not covering the fly wheel pit while the building was under construction. Greeley v. Foster, 32 Colo. 292, 75 P. 351, would be conclusive in favor of the plaintiff in error, if Bright had been injured in the construction of the pit itself, but the pit had been finished, a floor laid down over the whole room except the pit, and Bright and his fellows were working above and around it. The case approaches more nearly that suggested in 2 Bailey, Per. Inj. § 2934, quoted by Mr. Justice Campbell in Greeley v. Foster at page 302 (75 P. 354):
'The master is not under obligations to make reasonably safe the trench for those employees who are actually engaged in making it, but his duty is to have the trench made reasonably safe for the second class of employees who are to perform work of a different character in the trench after it is made.'
It would be more accurate to say that while the master must in all cases use reasonable care to make the place to work safe yet, in the cases of work to make it safe, of work of construction, alteration, and repairs, and of work where the situation and circumstances are undergoing change, the answers to the question, What is reasonable care to make it safe? differ, and are very different from the answer to the same question concerning a permanent, completed place to work.
A worker in steel construction walks on an I-beam high above the ground, and leans against the wind to keep from being blown off while he catches red-hot rivets in a tin pail, yet his employer may have used reasonable care to make the place safe under the circumstances of the case.
Since the Act of 1915 (Laws 1915, p. 515), and the Workmen's Compensation Act (C. L. $ 4375-4525), the doctrine of assumption of any risk created by the master's negligence has disappeared, but the question of whether the employer was negligent remains, and the workman still assumes, so far as a suit for damages is concerned, the risks not created by the master's negligence.
The court instructed, in effect, that if the defendant was negligent, and its negligence was the proximate cause of the injury there was no assumption of risk by plaintiff. This was right. C. L. §§ 4171, 4386, and 4387. These sections, with an exception not now noticed, abolish assumption of risk in the case of the master's negligence. Defendant in...
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Nitzel v. AUSTIN COMPANY, 5598.
...to the contrary finds no support in case or reason and persuasive authority exists to the contrary. Colorado Milling & Eelevator Co. v. Bright, 76 Colo. 338, 231 P. 1111; Ferguson v. Ringsby Truck Lines, 10 Cir., 174 F.2d 744. Plaintiff next argues that there is no evidence warranting submi......
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Kimbrough Bros. Lumber Co. v. Leadon
...(1928). In West Lumber Co. v. Smith, 292 S.W. 1103 (Tex.Com. of App., 1927), the court with approval from Colorado Milling & Elevator Company v. Bright, 76 Colo. 338, 231 P. 1111 "Since the Act of 1915 (Laws 1915, p. 515), and the Workmen's Compensation Act * * * the doctrine of assumption ......