Independence Coffee & Spice Co. v. Kalkman

• Decision Date: 06 March 1916
• Docket Number: 8448.
• Citation: 61 Colo. 98,156 P. 135
• Court: Colorado Supreme Court
• Parties: INDEPENDENCE COFFEE & SPICE CO. v. KALKMAN.

156 P. 135

61 Colo. 98

INDEPENDENCE COFFEE & SPICE CO. v. KALKMAN.

No. 8448.

Supreme Court of Colorado

March 6, 1916

Rehearing Denied April 3, 1916.

Error to District Court, City and County of Denver; John H Denison, Judge.

Action by Fred Kalkman against the Independence Coffee & Spice Company. Judgment for plaintiff, and defendant brings error. Affirmed.

W. E. Clark, of Denver, for plaintiff in error.

Crump &amp Allen, of Denver, for defendant in error.

HILL J.

The defendant in error was awarded $10,000 damages for the loss of his left arm and other injuries sustained through the alleged negligence of the plaintiff in error while in its employ. The defenses were a denial of the negligence, the assumption of the risk, and contributory negligence. We shall refer to the parties as designated in the trial court.

Over objection, plaintiff's counsel was allowed to ask the prospective jurors, collectively, upon their voir dire, if they knew any of the officers of the Globe Indemnity Company to which none answered. He then asked if they knew Mr. Ralph W. Smith, to which none replied. Objection was then mad eot these last two questions and sustained by the court. Another prospective juror was asked if he was interested in the Globe Indemnity Company. He answered: 'No, sir; I know Mr Smith.' Counsel for defendant then interposed an objection to all interrogatories in any way referring or relating to Mr. Smith stating that he in no way appeared to be interested in the controversy, etc. Counsel for plaintiff stated that made to these last two questions and sustained the witness regarding Mr. Smith because he apprehended he was vice presidence and agent of the Globe Indemnity Company. The objection was sustained. It is claimed that it was prejudicial error to have any of these questions asked and those answered concerning the indemnity company. We cannot agree with this conclusion. It must be remembered that these questions were submitted on the jurors' voir dire, during which considerable latitude must, of necessity, be allowed for the purpose of exercising peremptory challenges. The objections to those referring to Mr. Smith and the juror's acquaintance with the officers of the indemnity company were sustained, at one of which times counsel for the defendant stated that he (Smith) was in no way interested. This was not challenged, and, if it was improper to ask concerning their acquaintance with him or the officers of the indemnity company (a question unnecessary to determine), we cannot conceive of any harm that could come from it. Those pertaining to their interest, if any, in the Globe Indemnity Company, were proper. If the defendant was indemnified by that company, the plaintiff had the right to know if any prospective juror was interested in it. Vindicator Consolidated G. M. Co. v. Firstbrook, 36 Colo. 498, 86 P. 313, 10 Ann.Cas. 1108.

Error is assigned upon the overruling of defendant's challenge for cause to the prospective juror Reed, based on his answers to questions concerning his qualifications, some of which, when standing alone, tend to disclose a feeling of sympathy for one suffering such an accident, on account of him, some member of his family, or some friend having once been involved in such a case. The matter is not at all clear, but for which reasons he preferred not to sit as a juror; but he also stated that he was not conscious of any prejudices in favor of one who had been injured, nor was his sympathy such that it would require evidence on behalf of defendant to overcome it; that he was not conscious of any prejudice against any corporation as such; that he did not think his sympathy any more different than that which other men feel for an unfortunate; that he did not think he was less able to control it than other men; that if he was sworn to try the case he would obey the instructions of the court and take the evidence from the stand for the facts. In such circumstances the question rests largely in the discretion of the trial court, and when his testimony is considered as a whole we cannot agree that the court abused its discretion in this regard. Mooney v. People, 7 Colo. 218, 3 P. 235; Denver, S. P. & P. R. Co. v. Moynahan, 8 Colo. 56, 5 P. 811; Collins v. Burns, 16 Colo. 7, 26 P. 145; Thompson v. People, 26 Colo. 496, 59 P. 51; Babcock v. People, 13 Colo. 515, 22 P. 817.

We find no prejudicial error in the admission or rejection of testimony. The contentions concerning it are not serious enough to justify a detailed discussion.

The accident occurred while the plaintiff (a young man 25 years of age, inexperienced in this line) was attempting to put a belt onto the pulley of a driving shaft for the purpose of operating a machine with this belt from the main shaft for the grinding of vanilla beans, etc. There was no loose pulley or belt shifter or device of that nature provided for this purpose. There is also testimony that this machine was out of alignment; that the belt came off frequently, and the foreman had tied a broomstick onto the leg of the stand to which the machine was attached in such a manner as would cause it to act as a guide to hold the belt on the pulley; that the broomstick was pushed to one side when starting the machine.

Section 2 of our factory act of 1911 provides that such machinery shall be provided with belt shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys while running, where the same are practicable with due regard to the nature and purpose of said belts and the dangers to employés therefrom, etc.

It is earnestly urged that there was a total lack of testimony showing that it was practicable to provide and maintain such belt shifters or other mechanical contrivances for the machinery under consideration. The plaintiff contends that, when the testimony is considered as a whole there is ample for this...