Deep Mining & Drainage Co. v. Fitzgerald

• Decision Date: 04 December 1895
• Citation: 43 P. 210,21 Colo. 533
• Parties: DEEP MINING & DRAINAGE CO. v. FITZGERALD.
• Court: Colorado Supreme Court

43 P. 210

21 Colo. 533

DEEP MINING & DRAINAGE CO. v. FITZGERALD.

Supreme Court of Colorado

December 4, 1895

Error to district court, Pitkin county.

Action by Edward Fitzgerald against the Deep Mining & Drainage Company for personal injuries. Plaintiff had judgment, and defendant brings error. Reversed.

This was an action brought by the defendant in error to recover damages for personal injuries sustained by reason of the alleged negligence of the plaintiff in error. In substance the complaint alleges that the defendant was a corporation engaged in the business of mining in the county of Pitkin and state of Colorado, and the particular work in which it was engaged at the time of the accident was the sinking of what was known as the 'deep shaft on the Homestake lode'; that the plaintiff was at the time employed by the defendant as a miner to work, with other miners, under the direction of defendant, at the bottom of the said shaft; that one James Thomas was at that time in charge of the work on behalf of the defendant, and was employed by it as it agent and representative to conduct and control the working and sinking of said shaft, and was acting in pursuance of said employment at the time of the injury; that Thomas was vested with full power over said work and over the miners employed thereat, with the right to direct and control the action of the miners and to discharge them for violation or disregard of his directions, and generally to hire and discharge men in the prosecution of said work; that while engaged in the sinking of the shaft Thomas commanded plaintiff to clean out a 'missed hole,' that is, a hole which had been drilled in the shaft, and in which had been placed a cartridge consisting of dynamite and other explosive material, connected with a cap and fuse, which had been lighted, but the fire of which had gone out, and failed to light the explosive; that in part plaintiff did this, but refused to clean it out beyond a certain depth, giving as his reason for disobeying that he thought the hole was deep enough; that thereupon Thomas himself, against the protest of the plaintiff, took up the unfinished work, which he prosecuted in so negligent a manner and with such force and violence that he thereby caused an explosion, which resulted in the loss of plaintiff's eyesight, and deprived him of the power of earning a living. A further allegation as to negligence is 'that said injuries were caused by the act and negligence of the defendant and its agent as principal and representative as aforesaid, without negligence on the part of the plaintiff.' An answer was filed to this complaint, consisting of several defenses, one being a general denial; also that said Thomas was a fellow servant of the plaintiff, engaged in the same kind of employment; that plaintiff's own negligence was the cause of the injury and that the plaintiff had equal means of knowledge with the defendant as to whether the act which it was alleged caused the injury was dangerous and unsafe, and yet, nevertheless continued in the service of the defendant, and by his own act caused the injury. To this answer a replication was filed and upon the issues thus joined trial was had before a court and jury, resulting in a verdict for the plaintiff in the sum of $37,500. Upon this verdict, after the overruling of a motion for a new trial, interposed by defendant, the court entered judgment, and to reverse this judgment the defendant prosecutes its writ of error.

A large number of errors have been assigned by the plaintiff in error, but, in view of the conclusion which we have reached it will not be necessary to consider all of them. The main errors relied upon are that the facts stated in the complaint are not sufficient to constitute a cause of action, and the evidence is insufficient to sustain the verdict; that the court should have granted a nonsuit at the close of plaintiff's testimony; that the court erred in its instructions to the jury upon various grounds (which grounds will be stated more specifically hereafter); and that the verdict of the jury is excessive, and appears to have been given under the influence of passion and prejudice.

A brief statement of the evidence, as well as the allegations of the complaint, will serve to elucidate the legal questions involved. That the testimony was contradictory as to nearly, if not quite, every material point, is conceded, but it tended generally to show the following: Thomas was a foreman of the defendant company, intrusted by it with the superintendence of the sinking of the deep shaft upon the Homestake lode. Of this work he had entire charge. To him the miners employed therein looked for directions; by him they were employed and discharged; and, in general, he represented his principal (the defendand company) in all things in this particular department of its general enterprise. It was one of the duties of plaintiff, whenever so ordered by Thomas, to clean out missed holes, and prepare them for recharging with dynamite. To the work of cleaning out this particular hole Thomas had assigned plaintiff on the day in question. The latter had obeyed the order to the extent of cleaning it out as deep as he thought it should be made, and then ceased from the work. When Thomas descended into the shaft to ascertain if compliance had been had with his instructions, the plaintiff informed him that the hole was deep enough for the purpose in view. Thomas thereupon took the sand pump, and inserted it in the hole, and replied that it ought to be sunk deeper, and, handing the instrument to plaintiff, ordered him to finish the work. The plaintiff refused to obey, assigning as his sole reason therefor that the work, in his judgment, had been sufficiently performed, not that the further prosecution of it was attended with any greater danger than that incident to the antecedent work. Thomas then, as was his province, determining that for safe recharging the sinking should be further prosecuted, took from the plaintiff the sand pump, and proceeded with the work. While engaged thereat, he ordered plaintiff to throw water into the hole. The plaintiff scooped up from the bottom of the shaft with his shovel water that was standing therein, and threw it into the hole, when Thomas remarked that it was water, not dirt, that he wanted. Thereupon the plaintiff, evidently concluding that there was dirt mixed with the water standing in the shaft, reached for a bucket containing drinking water, and threw water from it into the hole. Almost immediately occurred the explosion which caused plaintiff's injuries. Up to the very last, plaintiff says that Thomas was working the sand pump gently, and it was only when he was about to throw water from the pail that, according to his statement, Thomas began churning the pump into the hole in a violent manner, which, he claims, caused the explosion. From this brief statement, as well as from the allegations of the complaint upon which plaintiff must rely for a recovery, it will be seen that, if there was any negligence, it was that Thomas improperly worked the sane pump, and not that the use of that instrument for the purpose was, of itself, negligence. This act by which the injury was occasioned was not the result of an act done by the plaintiff as a servant under the order of a superior. The throwing of the water is not even alleged or claimed to have contributed to the injury, and that act of the plaintiff was the only one connected with the accident done by him in obedience to orders. The act done by Thomas was necessitated by the refusal of Fitzgerald to do that which he admits was his duty, as a miner, to do whenever Thomas gave the order; and plaintiff, notwithstanding in his complaint he avers it, did not offer any objection to the assistance of his foreman. Although it is so contended by the plaintiff, there is no proper evidence that it was a part of the duty of Thomas to assist in the manual work of cleaning out missed holes; but, on the contrary, as asserted by the plaintiff himself, it was the duty of the plaintiff to do this, whenever Thomas so directed.

C. W. Franklin and Thomas, Bryant & Lee, for plaintiff in error.

W. W. Cooley and W. O'Brien, for defendant in error.

CAMPBELL, J. (after stating the facts).

One of the errors assigned is to the giving by the court of the fourth instruction, which purports to state the law of contributory negligence. In the third instruction the court had defined negligence to consist in 'performing some act, or omitting to perform some act, which an ordinarily prudent and careful man would not perform or omit to perform under all the circumstances of a particular case.' In instruction No. 4 the jury were told that, if they found from the evidence that the injuries were caused through the negligence of Thomas, and that Thomas stood in such relation to the defendant as that his negligence was the negligence of the defendant, then their verdict should be in favor of the plaintiff, unless they also found that the plaintiff committed some act which proximately caused the injury, and but for which act the injury would not have occurred. This instruction did not go far enough. It conflicts, as to one element, with the preceding one, and we do not find that it was elsewhere in the charge clearly supplemented or corrected. The issue was squarely raised, and the jury should have been instructed that an omission by the plaintiff to perform some act which, if performed, would have protected him from injury, would defeat a recovery by the plaintiff just as much as if the latter had committed some act which proximately caused the injury, and but for...