Holy Cross Gold Min. & Mill. Co. v. O'Sullivan

• Citation: 60 P. 570,27 Colo. 237
• Parties: HOLY CROSS GOLD MIN. & MILL. CO. v. O'SULLIVAN.
• Decision Date: 05 March 1900
• Court: Supreme Court of Colorado

60 P. 570

27 Colo. 237

HOLY CROSS GOLD MIN. & MILL. CO. v. O'SULLIVAN.

Supreme Court of Colorado

March 5, 1900

Error to district court, Arapahoe county.

Action by Patrick O'Sullivan against the Holy Cross Gold Mining & Milling Company. Judgment for plaintiff, and defendant brings error. Reversed.

Wm. J. Miles, for plaintiff in error.

B. M Malone, R. D. Thompson, and Harvey Riddell, for defendant in error.

CAMPBELL C.J.

The defendant in error, O'Sullivan, plaintiff below, was employed by plaintiff in error, the Holy Cross Gold Mining &amp Milling Company, defendant below, to work in its gold mine and, while engaged in cleaning out a tunnel, what the witnesses called a 'missed hole' or 'missed shot' (that is, an unexploded charge of powder) was exploded, producing an injury to plaintiff, for which he brought this suit to recover damages, alleging that the proximate cause of the injury was the negligence of the defendant in not exercising ordinary care to discover and remove the 'missed shot.' There was a verdict for the plaintiff, on which was entered a judgment, to reverse which this writ is prosecuted.

On the direct examination of the plaintiff the following questions were asked, and answers given, to which defendant objected, and saved objections to the adverse ruling on them: 'Q. State to the jury how the search is made, and if a missed shot can be found, and what search it requires to discover it. O'Sullivan: In the previous mines I have been in, if the top hole was gone, we could carefully remove the dirt from the bottom. We could know where the holes were, and could look to see where it was. We could get what we called a 'scraper,' or a little piece of long steel, insert that into this hole with caution, and if we met the tamping we would get water and work this tamping out. We located the powder, drew it out, and set this hole off again. Q. State to the jury whether or not, if a man has been ordinarily careful in looking for missed shots, you ought to be, or could be, able to find them. A. In using ordinary care, a man could detect every missed shot. * * *' And, upon the examination of Conroy, a witness for the plaintiff, the court, over defendant's objection, allowed the following questions to be put and answered: 'Q. Mr. Conroy, you said that, in a mine that you worked in, that there had been four missed shots. Explain to the jury whether these missed shots were discovered before they were discharged. A. Yes, sir; they were discovered. Q. State to the jury whether from any of these missed shots anybody had been hurt. A. No, sir. Q. State whether they were discovered before any explosion of them occurred. A. Yes, sir; they were discovered. Q. Can a person, in using ordinary case in mining operations, detect missed shots? A. Yes, sir.' The negligence alleged was the omission by the defendant to exercise ordinary care in detecting and removing the 'missed hole' whose explosion caused plaintiff's injuries. By the admission of this testimony the plaintiff was allowed to get before the jury, not what care or efforts had or had not been exercised by the defendant in this particular mine to detect and remove dangerous explosives, but the opinion of witnesses that, if the ordinary care which the defendant ought to exercise in providing a reasonably safe place for its employés to work in had been taken, the dangerous thing would have been removed, and the injury would not have happened. In other words, these witnesses usurped the function of the jury, and were allowed to give their opinions upon the precise question which the jury were to decide as the ultimate fact in the case. The jury were just as competent as the witnesses to determine, from legitimate evidence, whether ordinary care would result in detecting missed shots. The admission of this evidence was clearly erroneous, under several decisions of this court. Old v. Keener, 22 Colo. 6, 43 P. 127; Combs v. Ditch Co., 17 Colo. 146, 28 P. 966; Mining Co. v. Broderick, 25 Colo. 16, 53 P. 169. See, also, Iron Co. v. Lamb, 6 Colo.App. 255, 40 P. 251; Blair v. Railroad Co., 20 Wis. 262; Rap. Wit. § 294 et seq.; Hunt v. Gaslight Co., 8 Allen, 169; Lawson, Exp. Ev. 94; Hopkins v. Railroad Co., 78 Ill. 32; Buxton v. Potters Works, 121 Mass. 446; Barnes v. Incorporated Town of Newton, 46 Iowa 567. In another aspect, also, was the court in error in admitting this testimony. The witnesses were permitted to testify that in order mines, at other places and at other times, 'missed holes' were detected and removed by the exercise of ordinary care. This is clearly bringing into the case a collateral matter, which inevitably tends to withdraw the minds of the jury from the point at issue in the case, and to excite prejudice and mislead them. There was not even any attempt to show (what, according to some authorities, would have warranted its admission) that the condition of these other mines was the same as, or substantially similar to, that of the mine in question. Milling Co. v. Schaad, 15 Colo. 197, 25 P. 89; Parker v. Publishing Co., 69 Me. 173; Sylvester v. Jerome, 19 Colo. 128, 34 P. 760; Railway Co. v. Glasscott, 4 Colo. 270; Railway Co. v. Mitchell, 75 Tex. 77, 12 S.W. 810; Mayer v. Building Co., 116 Ala. 634, 22 So. 859; Rap. Wit. § 246.

George L. Kimball, an officer of the defendant company, was called in its behalf, and upon his direct examination testified that previous to December, 1896, which was about the time plaintiff received his injury, no accident had occurred in that part of the mine under the immediate direction of Charles Nelson, who was the foreman of the defendant company and under whose direction and supervision the plaintiff was working when he was hurt. The court, over the objection of the defendant, permitted the following cross-examination: 'Q. Haven't you had accidents, in which you have been sued, besides this one? A. Yes, sir. Q. How many suits have been brought against you for damages? A. Three. Q. How many cases for damages have you settled? A. Two.' That this was a most flagrant error, prejudicial to the defendant, is too clear for argument; and...