Davis v. Graham

• Decision Date: 09 May 1892
• Parties: DAVIS et al. v. GRAHAM.
• Court: Colorado Court of Appeals

29 P. 1007

2 Colo.App. 210

DAVIS et al. v. GRAHAM.

Court of Appeals of Colorado

May 9, 1892

Appeal from district court, Clear Creek county; C.F. BECKER, Judge.

Action by Daniel J. Graham against Lytle E. Davis and others for injuries received in their employ. Judgment for plaintiff. Reversed.

Wells Macon & Furman, for appellants.

Morrison & Kohn and C.C. Post, for appellee.

RICHMOND P.J.

On July 29, 1890, plaintiff, Graham, was in the employ of defendants and was working as a miner in a certain shaft sunk from the drift at the tunnel level of the Silver Glance lode to the depth of about 90 feet. In the course of such employment it became his duty to drill holes and place and fire cartridges of blasting powder, and to sink said shaft, and to run drifts and other workings as he might be directed or expected to do. It is alleged that defendants failed to maintain in said shaft ladders or other proper contrivances for ascent and descent that plaintiff had to ascend and descend the said shaft by catching with his feet and hands in the cracks between the timbering of said shaft; that such means of ascent and descent were not a proper contrivance; that on the day and year aforesaid, when plaintiff was working, after he had placed the cartridge in a hole drilled by him in the end of said shaft, and had fired the fuse to discharge said cartridge, it became the plaintiff's duty, and was an ordinary and useful incident to his employment, to descend the shaft, and see if water had reached said drill hole, and if so, to act accordingly; and for this purpose he came down said shaft and was standing about 10 feet above the drill hole and above the bottom of the shaft, at a point where he was safe from the discharge of the cartridge; that while so standing, holding to the cribbing, owing to the want of sufficient ladders or other support, and without negligence on his part, plaintiff fell from said point to the bottom of said shaft at the instant when the blast aforesaid was about to explode, and too late to return or take any means to prevent the explosion, or remove himself beyond the effects thereof, and that while plaintiff was at the bottom of the shaft said blast exploded and injured plaintiff. His right eye was destroyed, and the sight of his left eye partially destroyed, and plaintiff was wholly blind for about three weeks. The sight of his left eye has never become restored, and plaintiff received other wounds and bruises, and for a long time thereafter suffered great pain and anguish, and has thereby permanently lost the sight of his right eye and the eye itself. The sight of his left eye has been permanently weakened, and his power to earn a living by work at his occupation of mining, or any other business, has been much impaired. Wherefore he claims damages in the sum of $10,000. Defendants answer, and admit that they were in the possession of the mining premises; that the plaintiff was in their employ, and that the duty of the plaintiff in such employment was substantially as in the complaint set forth. They deny that upon the occasion in the complaint mentioned it became and was the duty of plaintiff to ascend and descend the shaft in the complaint mentioned for any purpose whatsoever. Admit that he did descend the shaft, and was injured by the explosion, and confined under medical treatment for a considerable time; and, further, that the injury occurred to plaintiff solely by his own negligence without fault of defendants, or any of them. The replication denies that the injuries resulted from negligent conduct or without the fault of defendants. The cause was tried to a jury, and a verdict rendered for plaintiff in the sum of $1,500. Motion for a new trial overruled, and judgment entered upon the verdict.

The plaintiff testifies that he began working for the defendants on July 29, 1889; that the accident happened on the night of August 11th, about 11 o'clock; that he had been working 13 1/2 days. After he prepared and fired the fuse he went up the cribbing, and waited long enough for the explosion, and then went down to about the third line of the timbering, and in going down he looked over the cribbing, put one hand on the hanging wall, and saw the fuse was all right, and as he was turning around to go back he swung his hand around to catch hold of the cribbing, but before he got his hand on the cribbing his foot slipped, and he dropped to the bottom. "I saw I could not get out, and I reached over to get hold of the fuse. I thought I would pull it out before it would explode, but before I got my fingers on it the hole exploded, and filled my face and eyes and both arms full of rock. It felt like sand." He states that the cribbing was very close at this point, and that caused him to slip. He also testifies that he had made complaint to the defendants about the ladders, on the second or third day after he went to work, and that he was informed that they had no ladders, and he would have to go down the cribbing; that the cribbing on the top was peeled off, and the bark decomposed. It was slippery, all green bark, and water coming from the drift. There was a stream in the foot wall above the shaft, and the water came over the cribbing and wet it. He said to Mike: "This is a very slippery place; a dangerous place to work in." He replied: "We are going to put up ladders right away." He spoke to Powell about it, and he said they were going to put them in as quick as they could get them. They had sent for the ladders. That he spoke to Welsh about it the first day he went to work, and to Powell two or three days after. He said: "I think there was time to put the ladders in before the accident after I had notified Powell. They have mine ladders for sale in Georgetown. The mine is about four miles from Georgetown. There is a road and a trail. Things are carried over the trail." He further testified that he was an experienced miner, and realized that the shaft was a dangerous place to work in. To use his own language in direct examination, he says: "The exact language I used to Mr. Powell was this: 'Sam, this cribbing is bad. This is a very dangerous place, because in getting up and down a man might fall down and break his neck if you don't put ladders in.' " To which Powell replied that he had sent for ladders, "and as soon as they come we will put them in." We deem it unnecessary to quote further from the plaintiff's testimony.

In the course of the trial the defense introduced declarations of plaintiff shortly after the accident to the effect that it had resulted from his own fault. To use the language of the witness: "He admitted it was his own fault. He was just going to take hold of the fuse when it went off." To rebut this alleged admission and others plaintiff was permitted to introduce declarations of his, made at other and different times, for the purpose of fortifying or corroborating his testimony at the trial. The errors assigned are: First, the court erred in not sustaining defendants' objections to testimony offered by the plaintiff; second, the court erred in the instructions to the jury; third, the evidence showed that the plaintiff was injured solely on account of his own fault and carelessness, and the verdict is contrary to the evidence and the law.

To sum up the testimony, it shows that the plaintiff was in the employ of the defendants; that he was an experienced miner that he realized the dangers incident to his employment by reason of the defendants' having failed to provide the necessary means to ascend from and descend into the shaft; that he requested that such means be provided; and that he remained in the employ of the defendants, and continued to work in the shaft, descending and ascending as his employment necessitated; that he had charged the mine, and taken a position of safety before the explosion; and,...