Guldager v. Rockwell

• Decision Date: 13 June 1890
• Citation: 14 Colo. 459,24 P. 556
• Parties: GULDAGER v. ROCKWELL.
• Court: Colorado Supreme Court

24 P. 556

14 Colo. 459

GULDAGER v. ROCKWELL.

Supreme Court of Colorado

June 13, 1890

Commissioners' decision. Error to district court, Arapahoe county.

F A. Williams, for plaintiff in error.

L C. Rockwell, pro se.

RICHMOND C.

In this action plaintiff in error seeks to recover from defendant in error damages for negligence, resulting in the death of her husband while in the employ of the defendant in error. The complaint, as amended, contains the usual and necessary averments, to which the defendant in error answers setting up three defenses: First. A general denial. Second. Contributory negligence. Third. Accord and satisfaction. The second and third defenses are specifically denied in the reply of plaintiff in error. The cause was tried to a jury, and after all the evidence had been submitted on the part of both plaintiff and defendant the court instructed the jury that they should find for the defendant. The main, and, indeed, the only contention of plaintiff in error necessary for us to consider is whether the court erred in instructing the jury to return a verdict in favor of defendant. It appears that plaintiff in error's husband received the injury which resulted in death, and for which she seeks to recover damages, on the 8th day of January, 1883, and that this action was not instituted until the 1st day of June, 1886. In the trial of this cause and in support of the defense of accord and satisfaction, the defendant introduced the following instrument of writing: 'This is to certify that Mrs. Andrew Guldager and L. C. Rockwell have this 26th day of April, inst., had a full and final settlement, in which said Rockwell takes the mules and horses at $350 cash, and surrenders to Mrs. Guldager two notes of Andrew Guldager, one for $300, dated March 28th, 1881, due on or before one year after date, and another note due March 28th, 1882, for $30, due on demand, which notes and interest amounted, on the 28th of March, 1883, to $363, and Rockwell has also paid her two hundred and eighty-seven dollars and thirty-four one-hundreths ($287.34) cash, which is in full demands of every name and nature whatsoever from one party to the other. April 26, 1883. L. C. ROCKWELL. MARY GULDAGER.' Mrs. Guldager, in rebuttal, testifies: 'I made no claim of Rockwell on account of the death of my husband. Did not mention it, because I did not want to. Did not consult anybody in regard to it until I returned to Denver. I knew all the time that I had a claim against him, and when I made this settlement, and signed the receipt, I expected to bring this suit. I did not say anything to Rockwell about it.' The action of the court was based upon the fact that plaintiff in error admitted that when she signed the receipt she had full knowledge of the demand sued upon, and at the time of the execution of the written instrument for settlement she said nothing about it, and intended to bring this action. The plaintiff in error insists that it was the duty of the court to submit the cause of action to the jury, and contends that, where there is any evidence in support of a fact in issue, it must be submitted to the jury.

We cannot agree with this position. It is the peculiar province of the court to determine all questions of law arising before it, and the undoubted right of the jury to find all matters of fact when evidence legally sufficient for that purpose is submitted for their consideration, and the legal sufficiency is a question of law, of which the court is the exclusive judge. It is true, authorities can be cited in support of the doctrine that where there is any evidence, however slight tending to support a material issue, the case must go to the jury, since they are the exclusive judges of the weight of the evidence. This doctrine, however, is denied in all the courts of England, as well as in the American federal courts, and in many of the courts of the American states. In 2 Thomp. Trials, § 2249, the author says: 'The old rule is likewise exploded in several of the states whose courts are now in the constant habit of ordering nonsuits against the consent of the plaintiff, of giving peremptory instructions to the jury to find for one party or the other, or of sustaining demurrers to the evidence in cases where there is confessedly some evidence supporting a material issue. * * * Where the facts are undisputed or admitted, the only questions for decision are questions of law. In such a case it only remains for the judge to apply the law to the facts, and to decide whether they constitute a cause of action or defense. But where the facts are disputed, and the evidence in respect to them is conflicting, such is not the case.' Id. § 2262. 'The day has gone by when courts will refuse to enter a judgment of nonsuit upon motion of defendant, when the plaintiff has failed to introduce sufficient evidence in a case, tried by a jury, to support a verdict for the plaintiff, and in a case tried to the court to warrant a finding and judgment in favor of the plaintiff.' Tripp v. Fiske, 4 Colo. 25; Behrens v. Railway Co., 5 Colo. 400; Schwenke v. Railroad Co., 12 Colo. 341, 21 P. 43. 'It is proper for the court to grant a nonsuit, or direct a verdict for the defendant, where the issues involved in an action are negligence on part of the defendant, and contributory negligence on part of the plaintiff, when the evidence, considered in its most favorable light in behalf of the plaintiff, does not tend to show the defendant guilty of the negligence alleged against him, or when the evidence, thus considered, shows the plaintiff guilty of negligence which contributed to the alleged injury, and without which it would not have happened.' Lord v. Refining Co., 12 Colo. 390, 21 P....