Colorado & S. Ry. Co. v. Davis

• Decision Date: 14 October 1912
• Citation: 127 P. 249,23 Colo.App. 41
• Parties: COLORADO & S. RY. CO. v. DAVIS.
• Court: Colorado Court of Appeals

127 P. 249

23 Colo.App. 41

COLORADO & S. RY. CO. v. DAVIS.

Court of Appeals of Colorado

October 14, 1912

Appeal from District Court, City and County of Denver; Samuel L Carpenter, Judge.

Action by Calvert J. Davis against the Colorado & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Dines, Whitted & Dines and J.G. McMurry, all of Denver, for appellant.

Tolles & Cobbey, of Denver, for appellee.

KING J.

This cause was before this court upon a motion to remand it to the Supreme Court for the reason, as assigned, that a decision necessarily involves the construction of certain provisions of the Constitution of the state as well as of the United States. The motion was denied. Colorado & Southern Ry. Co. v Davis, 120 P. 1048. The same constitutional questions were urged at the trial and overruled, exceptions taken, and error assigned.

The first question raised was that chapter 67 of the 1901 Session Laws was in conflict with the provisions of the fifth and fourteenth amendments to the Constitution of the United States, and with section 25 of article 2 of the Constitution of this state. The act has been held constitutional in the following cases: Vindicator Con. Gold Mining Co. v Firstbrook, 36 Colo. 498, 86 P. 313, 10 Ann.Cas. 1108; Rio Grande Sampling Co. v. Catlin, 40 Colo. 450, 94 P. 323.

The second question raised was that the act was invalid because in its final passage through the Senate, the provisions of section 22 of article 5 of the state Constitution had not been observed, in that the vote thereon had not been taken by ayes and noes and the names of those voting entered upon the journal of the Senate. The Senate Journal was offered in evidence by the defendant in support of its contention. To rebut this, plaintiff called the Deputy Secretary of State and had him produce a manuscript journal of the Senate, from which it appeared that the ayes and noes were taken. The court refused to allow appellant to cross-examine the Secretary of State upon this manuscript, or to otherwise impeach it by showing that the same was a forgery, etc., but held that it imported absolute verity. We think the cross-examination should have been allowed and evidence received. But that question has been before the federal courts for consideration for a number of years, and in the case of Kyner v. Portland Gold Mining Co., 184 F. 43, 106 C.C.A. 245, the Circuit Court of Appeals (8th Circuit) appointed a commissioner to take evidence of what actually occurred in the passage of the act, and the testimony so taken was considered in Portland Gold Mining Co. v. Duke, 191 F. 692, 113 C.C.A. 316, whereupon the court found as follows: "The facts so brought to our attention make it very clear, and we so find, that the requirement of the Constitution of the state was observed with scrupulous fidelity in the passage of that act. A sheet, containing a record of a roll call on the bill in question, the vote taken by ayes and noes on it, and the names of those so voting entered thereon, undoubtedly was incorporated in and formed a page of the Senate Journal of February 4, 1901, the thirty-fourth legislative day of the session, as originally made. This page remained in the journal from the date of its entry until after the final adjournment of the Senate. That it was afterwards abstracted from its proper place in the journal appears conclusively from the fact that it was once there and afterwards was found elsewhere. There is also a strong probability that the original sheet showing the roll call, which was afterwards found and identified, had been so abstracted, arising from the appearance of the sheet itself and the original journal. The slit or tear in the upper edge of the sheet corresponds exactly with the location of the thread which temporarily bound all the sheets constituting the journal together. This, with the identity and continuity of the subject-matter of the two, strongly corroborates the conclusion reached from the oral testimony to which we have had access, and with it all leads to the inevitable conclusion that the act was constitutionally passed, and that an attempt was made to defeat its operation by mutilation of the record."

The decision of the federal court is not necessarily binding nor conclusive upon this court, but it is persuasive and will be adopted as decisive of that issue. This being done, the constitutional questions are solved, the act sustained, and further consideration of the contention made by the appellant herein that the alleged negligent act complained of was that of a fellow servant of plaintiff is eliminated. Plaintiff was an employé of the appellant, the Colorado & Southern Railway Company, and was directed by a foreman in its shops to assist other employés, including a machinist, in putting together two separate parts of an iron frame to be attached to a locomotive then being set up in the shops. One part was already bolted to the engine. The other was lying on its side on boxes in such position that it must be moved forward a few inches before being fitted into place. The pieces of frame were so made that when joined together they dovetailed, or fitted one into the other, and were to be held in place by bolts through the pieces at several points of intersection. Plaintiff's duty appears to have been to assist in raising the piece of frame on the boxes so that it would stand upon edge, and so hold it that, when pushed forward by the machinist by the use of a pinch bar, it would pass alongside the portion of the frame attached to the engine until it reached a point where it would enter that part of the frame into which it was to be fitted, then to be moved laterally into the opening in the other piece of frame, after which it must be moved directly forward a few inches further to its resting place.

The complaint charges that the machinist directed plaintiff to hold up and guide said piece of frame to one side of the said piece of frame not held by plaintiff until the piece of frame held by plaintiff was even with the full length of...