Elkton Consol. Min. & Mill. Co. v. Sullivan

• Decision Date: 04 November 1907
• Citation: 92 P. 679,41 Colo. 241
• Parties: ELKTON CONSOL. MIN. & MILL. CO. v. SULLIVAN et al.
• Court: Colorado Supreme Court

92 P. 679

41 Colo. 241

ELKTON CONSOL. MIN. & MILL. CO. v. SULLIVAN et al.

Supreme Court of Colorado

November 4, 1907

Appeal from District Court, Teller County; William P. Seeds, Judge.

Action by W. W. Sullivan and others against the Elkton Consolidated Mining & Milling Company. From a judgment for plaintiffs defendant appeals. Reversed and remanded.

Dines, Whitted & Dines, for appellant.

E. C Stimson and Tully Scott, for appellees.

GABBERT J.

Appellees plaintiffs below, brought suit against the appellant, as defendant, to recover damages for the death of their son alleged to have been caused by the negligence of defendant. The deceased was in the employ of defendant, and had been for nearly two years, part of the times as a trammer underground and on the surface, and for about one-third of that period part of his duties has been to gather up drills, or steel, in the several levels of the mine, and assist in bringing the same to the surface to be sharpened. For a considerable period prior to the day of his death, one of his duties had been to bring up steel of the character mentioned, some of the witnesses stating that he had been so employed for five days, and others, for about a month, prior to his death. In performing these duties he rode on a cage operated through the shaft on the property of the defendant. This shaft was divided into three compartments, separated from each other by timbers. In two of these compartments cages were maintained; the one in the middle compartment being the larger. This cage consisted of two decks, seven feet apart. There was no inclosure or railing around it, except the braces and uprights holding it together, so that practically each deck was an uninclosed platform. Running up and down each side of the compartment in which this cage worked were guides, along which shoes attached to the cage ran, the top of the shoes being about six feet above the floor of the upper deck. On the day of his injury deceased entered the upper deck of this cage on the fourth level, with several drills which he held in his arms. One of these pieces of steel fell and caught in the plates or timbers of the shaft in which the cage was operated, whereby he was thrown against the wall of the shaft, crushed by the cage, and fell to the bottom. The injuries thus received caused his death.

The negligence upon which plaintiffs relied to establish their cause of action, as stated in their complaint, was substantially as follows: (1) The horizontal plates in the shaft in which the cage was operated were next to the cage and wholly uncovered, so that anything protruding from the cage while ascending could catch under and against these plates. (2) That the partition between the two compartments in which the cages were operated was similarly constructed. (3) As stated in the complaint: 'At a point about midway between the fourth level of said mine and the surface thereof, there was on said day, a rough jog, bend, or misplaced joint in the guides of said cage and shaft, which caused a jar or jerk to said cage in passing over said jog, bend, or joint.' (4) That about 30 days prior to the day when deceased was injured the defendant negligently disconnected the electric bell apparatus, then in operation on the cage, and by means of which the cager, when this appliance was in order, could instantly signal the engineer, and instantly cause the cage to stop when ascending, and thereafter negligently caused the cager to use a rope signal, which was insufficient with which to signal the engineer, and which it was difficult, and next to impossible, for the cager to reach when the cage was ascending. (5) That long prior to the date when deceased was killed the defendant had failed and neglected to promulgate and enforce rules providing for ordinary care and safety in the handling of steel and drills on the cage, but, on the contrary, through its officers, had for a long time prior consented, permitted, and directed that drills or steel might be carried upon the cage unlashed. The complaint then recites that the deceased, while attending to his duties as a trammer, was directed to gather up drills in the several levels of the mine, and assist in bringing them to the surface, and, in performing this service, entered the cage at the fourth level, with several drills or pieces of steel which he held in his arms, as directed by appellant; 'that thereupon the said cager directed said cage to be hoisted to the surface of said mine, and that at or about the said jog, bend, or misplaced joint the said cage was shaken or jarred, and which, as these plaintiffs are informed and believe, thereby caused a piece of steel to slip from the grasp of Sullivan, and catch in or against one of said exposed horizontal plates or timbers of said defective shaft,' whereby, in connection with the other acts of negligence charged, the deceased was thrown and caught between the shaft timbers and the cage, and killed. The answer admitted that deceased was in the employ of defendant; that he entered the cage with several pieces of steel unlashed; that, while he was ascending in the cage, he was killed; that the horizontal plates to which the timber lining the shaft was fastened were inside, and next to the cage; that there were maintained between the compartments of the shaft horizontal timbers set about five feet apart; and that the electric bell apparatus was disconnected, and a rope signal substituted therefor. All other allegations in the complaint were denied, and defendants alleged contributory negligence and assumption of risk on the part of the deceased.

At the close of the evidence for plaintiffs, and again after all the evidence was in, the defendant moved the court to direct a verdict for the defendant, both of which motions were overruled. The jury returned a verdict for plaintiffs, upon which judgment was rendered. From this judgment the defendant appeals. Errors are assigned on the rulings of the court denying the motions for a directed verdict, and also on the reception and rejection of testimony, and on instructions given and refused.

The first act of negligence charged related to the manner of lining the shaft in which the cage in question was operated. Counsel for defendant contend that there is not a scintilla of evidence showing, or in the remotest degree tending to show, that the shaft was negligently lined, and challenged counsel for plaintiffs to point out anything in the record that contradicts this statement. In their brief counsel for plaintiffs fail to notice this contention, and we must therefore assume that the claim of counsel for defendant is correct.

The next allegation of negligence relates to the failure to provide a suitable partition between the compartments of the shaft. Evidently there was no evidence to support this allegation, for it was withdrawn from the consideration of the jury by an instruction to that effect.

The important question presented for determination is the one with respect to the jog in the guides along which the shoes attached to the cage ran; because, it is contended by counsel for plaintiffs, it was the jar of the cage caused by this jog which threw the steel from the grasp of deceased. That there was a jog in the guides we think is clearly established from the testimony, or, at least, there was sufficient on that subject...