Grant v. Varney

• Decision Date: 04 March 1895
• Parties: GRANT et al. v. VARNEY. [1]
• Court: Colorado Supreme Court

40 P. 771

21 Colo. 329

GRANT et al. v. VARNEY. ^[1]

Supreme Court of Colorado

March 4, 1895

Appeal from district court, Pitkin county.

Action by Florence L. Varney against James B. Grant and others for injuries resulting in the death of plaintiff's husband. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

The plaintiff below, who is appellee here, instituted this action, as the widow and sole heir at law of Joseph N Varney, deceased, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendants. The complaint charges that said Varney was a miner employed by the defendants to work in the St. Joe mine and that while he was so engaged in his employment, in running a drift therein, the roof thereof caved in, and fell upon and instantly killed him. The caving and falling in of the roof were in consequence of the wrongful and negligent failure of the defendants properly to timber said drift, or cause the same to be timbered. The answer denies the negligence of the defendants, and contains three separate and distinct defenses, the first of which sets up the contributory negligence of Varney as the proximate cause of the injury; second, that, if the death of said Varney was caused by the negligence of any one other than that of himself, it was the result of the negligence of a fellow servant; third, that said deceased had equal means of knowledge with the defendants of the alleged unsafeness of defendants' mine, and thereafter continued in the service. Trial was had upon the issues thus joined, and a verdict and judgment for $5,000 was rendered against the defendants, from which judgment the defendants come here by appeal. The evidence of plaintiff tended to show that on the night when Varney was killed he and his companion, Steel were engaged in running a drift in the mine, in ground which though breaking well, required blasting. These two men were doing the work of drilling and blasting. The defendants had employed a man named Moore to timber the drift so as to provide and keep a safe place in which Varney was to carry on his work. For a day or two previous, Moore had absented himself from the mine, and been in Aspen, occupying himself with polities in the town, instead of confining his attention to the work for which he was employed at the mine. In consequence of this inattention by Moore to his duty, and possibly from an insufficient force of men expeditiously to do the work, the protection of the drift was neglected, so that at the time of the accident the last of the timbering was at a distance of from 16 to 18 feet from the breast of the drift where the men were engaged in pushing forward the work of extension. While so prosecuting their work, with the roof of the drift back of them without any support for a space of about 17 feet, the roof suddenly caved in, and a huge bowlder fell upon and instantly killed both Varney and Steel. None but these two men were in the mine when the accident occurred, and it is from witnesses who were employed in and about the mine, and who found these unfortunate men soon after their death, that the evidence for the plaintiff was elicited. Testimony was also brought out, both in the cross-examination of plaintiff's witnesses, and in the direct evidence of defendants', tending to show that Varney knew, equally with defendants, of the danger that would probably result from working in a place where the timbering was so far behind the breast of the drift, and that he had, only a short time before he lost his life, been warned by one of the witnesses that there was danger in remaining in the drift, and that he (Varney) replied that, although there was danger, yet, by keeping close to the breast of the drift, he thought he might safely keep on with his work. There was evidence that before this Varney had complained to a fellow servant of his in the mine that the timbering was not keeping pace with the work of extension, and requested that complaint thereof should be made to Bush, the superintendent of the mine, which was done, with the result that no additional steps were taken to make the place safe, and no promise was made to do so. Bush is reported to have said that he wanted to push the running of the drift as rapidly as possible, so as to make for his employers that month as good a showing as possible, and thought that there was no necessity to hasten the timbering. In spite of this remonstrance and reply, Varney continued his work in this dangerous place. Evidence was also introduced tending to show, by experienced miners, that good mining required that a drift made in such ground and under such circumstances as this should be kept timbered all the time up to within three or four feet, or the length of one set of timbers, of the breast of the drift. The evidence of the defendants had for its object to establish affirmatively that defendants were not negligent; that Varney knew, equally with the defendants, of the unsafeness of the place where he was working, and thereby was guilty of contributory negligence which would defeat a recovery by the plaintiff; that the injury was caused, if by anything other than the negligence of Varney himself, by the negligence of Moore, who was a fellow servant of his. There was also evidence to the effect that defendants had used reasonable care in providing a proper place for Varney to work, and an attempt is claimed to have been made by the defendants to show that they had issued general rules and provided instructions for the miners to do for themselves the work of timbering the drift whenever, in their judgment, their own safety demanded it, but that Varney disregarded the rules thus prescribed, and, by violating them, brought upon himself his own destruction. From this summary of the evidence it will be observed that plaintiff's cause of action, and all the defenses interposed by the defendants, unless it be that of the negligence of a fellow servant, have some evidence which the parties had the right to have the court submit to the jury by appropriate instructions.

C. S. Thomas, Bryant & Lee, and C. H. Pierce, for appellants.

Joseph W. Taylor, for appellee.

CAMPBELL J. (after stating the facts).

1. The first instruction given by the court of its own motion is as follows: 'If the jury believe from the evidence in this case that the defendant E. W. Bush was superintendent of the defendants, and had full charge and control of the property and of the men employed therein, then it was his duty to see that the drift in which deceased was at work was properly and securely timbered, and his failure to do so would be negligence, and his negligence would be the negligence of the other defendants whom he represented; and he could not delegate this duty to an employé, and shift the responsibility for negligence in not properly timbering such drift on to such employé, so that the defendants could claim that the injury occurred by reason of the negligence of a coemployé. The duty to furnish a safe place for said Varney to work in was the duty of the defendants. If they failed in that, they were guilty of negligence.' The defendants assign for error the giving of the foregoing instruction, especially the portion which we have italicized. This instruction is not the law. It virtually declares that the duty of the master is to furnish to the servant an absolutely safe place in which to work. In other words, it makes the former an insurer of the safety of the latter. The failure to provide a safe place for the employé to work in is not negligence of his employer, but the jury were, by this instruction, told that it was. The contention of counsel for appellee that the vice in this instruction is not fatal to the judgment, because in other and subsequent instructions the jury are practically told that the employer's duty requires that he should furnish a reasonably or ordinarily safe place for his employé to work in, is plausible, rather than sound. True it is that where the court gives an instruction which contains only a partial, though, so far as it goes, correct, legal proposition, and in another instruction completes and perfects the statement of the correct rule, prejudicial error may not be assigned. But where, in the same charge to the jury, are found one instruction embodying a correct legal principle, and another instruction containing a contradictory statement upon the same proposition, which is not the law, there is error. For this court to attempt to speculate or determine which instruction the jury in such a case selected as stating the correct rule, and which they rejected as incorrect, would lead us upon an uncertain voyage, and...