Cripple Creek Mining Co. v. Brabant

• Decision Date: 02 July 1906
• Citation: 87 P. 794,37 Colo. 423
• Parties: CRIPPLE CREEK MINING CO. v. BRABANT.
• Court: Colorado Supreme Court

87 P. 794

37 Colo. 423

CRIPPLE CREEK MINING CO. v. BRABANT.

Supreme Court of Colorado

July 2, 1906

Rehearing Denied Dec. 3, 1906.

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

Action by Minnie V. Brabant against the Cripple Creek Mining Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wolcott, Vaile & Waterman, H. H. Dunham (Wm. W Field, of counsel), for appellant.

Stimson & Smith and James J. McFeely, for appellee.

CAMPBELL J.

Action by Minnie V. Brabant, widow of Fred Brabant, deceased, to recover damages for personal injuries resulting in her husband's death through defendant's negligence. From the judgment in plaintiff's favor defendant appeals.

1. It is urged that the complaint is subject to the vice of duplicity in that it contains two separate counts relating to the same state of facts, and that the court erred in not compelling plaintiff at defendant's request to elect on which she would go to trial. As stated in Spaulding v Saltiel, 18 Colo. 86, 88, 31 P. 486, the practice of pleading a double statement of the case so as to meet the exigencies of the proofs is not, as a general rule, permitted under the Code. The rule, however, is not absolutely inflexible. In Cramer v. Oppenstein, 16 Colo. 504, 27 P. 716, it was said that it sometimes becomes necessary, and therefore permissible, to duplicate statements for the same cause of action where there is reasonable cause to believe that plaintiff cannot safely go to trial upon a single statement, as where he cannot reasonably be expected to anticipate the evidence in advance of the trial. We think the case in hand comes under this exception to the general rule. Leonard v. Roberts, 20 Colo. 88, 36 P. 880; Manders v. Craft, 3 Colo.App. 236, 32 P. 836; Rucker v. Smelting & Refining Co., 18 Colo.App. 487, 72 P. 682; Vindicator Cons. G. M. Co. v. Firstbrook (Colo.) 86 P. 313.

2. At the close of her case in chief, plaintiff was allowed, over the objection of defendant, to amend her complaint by inserting allegations as to the amount of wages her deceased husband was receiving at the time of his death, and that defendant assured him that the place where he received his fatal injuries was safe. Possibly the usual formalities were not complied with by plaintiff in making the request, but we do not think, in the circumstances disclosed by the record, that the court abused its discretion in permitting the amendment to be made. Indeed, the court by its ruling promoted a leading object of the Code, viz., to assist the parties in obtaining justice.

3. The objections to rulings of the trial court in admitting and excluding testimony and in curtailing, as alleged, the right of defendant to cross-examine plaintiff's witnesses, we do not find to be well taken. Possibly technical errors may have been committed in some particulars, but they were not of serious consequence, and clearly not prejudicial, and some of them were cured by subsequent rulings. For these reasons, we do not notice them in detail, and for the additional reason that they fall within the range of the legal discretion of the trial judge which was not abused.

4. In the examination of some of the jurors on voir dire plaintiff's counsel asked them if they were interested in a certain guaranty insurance company. The defendant vigorously asserts that this constituted prejudicial error inasmuch as the attention of the jurors was unnecessarily directed to the supposed fact that an insurance company, and not the defendant, was the real party in interest, since it is matter of common notoriety that mining companies usually insure against such accidents. We do not find from the record that there was any intention by plaintiff's counsel to make prominent this connection of the insurance company with the case, but are of opinion that he might thus obtain the information as a guide for the exercise of a challenge for cause or peremptorily. This point was so ruled by this court in the Firstbrook Case, supra, and the case in hand comes within that decision.

5. The appellant's assignments of error--that the evidence fails to show negligence of defendant, and that the proofs are conclusive that plaintiff's husband assumed the risk of the danger incurred and was guilty of contributory negligence, and that the doctrine of safe place does not apply--are best considered in connection with the objections which it makes to the charge to the jury. To an understanding of these objections, the issues should be stated and a summary of the evidence given.

The two principal specifications of negligence averred in the complaint are that defendant violated its duty to plaintiff's husband in that it failed to provide a reasonably safe place for him to work, and that, without fault upon his part, he obeyed the commands of defendant's representative to work in a dangerous place which was known to be so by defendant, and unknown to, and could not have been ascertained by, him in the exercise of reasonable care. The defenses pleaded were a denial by the defendant of negligence on its part, and the affirmative pleas of assumption of risk and contributory negligence. The court submitted the case to the jury upon the theory that the doctrine of safe place was applicable to some of the facts of the case--that is, if they believed the evidence of plaintiff's witnesses on that point--and that if, in this respect, the defendant violated its duty, plaintiff was entitled to recover, unless the jury found that the risk was assumed by plaintiff's husband, or that his own...