Iowa Gold Mining Co. v. Diefenthaler

• Decision Date: 07 March 1904
• Citation: 32 Colo. 391,76 P. 981
• Parties: IOWA GOLD MIN. CO. v. DIEFENTHALER. [*]
• Court: Colorado Supreme Court

76 P. 981

32 Colo. 391

IOWA GOLD MIN. CO. v. DIEFENTHALER. ^[*]

Supreme Court of Colorado

March 7, 1904

Appeal from District Court, San Juan County; James L. Russell Judge.

Action by William Diefenthaler against the Iowa Gold Mining Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Thomas, Bryant & Lee, for appellant.

Charles A. Johnson and Stuart & Murray, for appellee.

GABBERT, C.J.

When the bill of exceptions was first lodged in this court, the appellee moved to strike it from the files. The motion was denied, because the ground upon which it was based, in so far as it was sought to attack the correctness of the bill, could not be established in the manner attempted. Leave was granted the appellee to withdraw the bill for the purpose of amendment. It was withdrawn for this purpose. Amendments were allowed by the trial judge, and the bill returned. The result is that in some particulars the record is confused, but on the vital question in the case it is clear. Before proceeding, however, to a discussion of the cause upon its merits, there remains one question raised by the motion to strike to dispose of. The order fixing the time within which the bill of exceptions was to be tendered the trial judge for signature provided that it should be presented to counsel for appellee for inspection at least ten days before the expiration of that time. It was not placed in the hands of such counsel until seven or eight days before the day that it was to be tendered the trial judge. In support of the motion to strike, it is urged that the judge could not waive the provision of the order with respect to the time the bill was to be handed counsel for appellee for inspection. The purpose of the order was to afford counsel for appellee an opportunity to examine the bill. This part of the order was in no manner jurisdictional. It did not deprive the judge of power to sign the bill, even if not strictly complied with if he was satisfied that counsel for appellee had been afforded the opportunity which was its purpose. When the bill was presented to the judge, objection was made to its being signed because of the failure to comply with that part of the order under consideration. In passing upon this proposition, the trial judge found that counsel for appellant had afforded counsel for appellee all reasonable opportunity to examine the bill before it was presented to him for signature. It thus appears that the order was substantially complied with, and its purpose accomplished. The motion to strike must therefore be denied.

The action was commenced by appellee to recover from appellant damages for injuries sustained by the alleged negligence of the latter. The trial resulted in a verdict and judgment for the plaintiff, from which the defendant appeals. At the close of the testimony for plaintiff, the defendant moved for a peremptory instruction directing the jury to return a verdict in its favor. Among other grounds assigned in support of this motion was one to the effect that the injury was the result of one of the hazards which plaintiff assumed. This motion was denied. In order to properly discuss this question, a brief r esumé of the testimony of plaintiff becomes necessary. He was employed in a mill operated by the defendant. One of his duties was to move concentrates from one part of the mill to another. This was effected by means of buckets suspended on wheels resting on a rail or rigid tram attached to a frame about 6 1/2 feet from the floor. Side trams similarly constructed were connected with the main tram at points where it curved sharply, so that the buckets could be moved to and from various parts of the mill. The connection between each side tram and the main one was effected by means of a switch. This switch was constructed of the same material as the tram, and worked laterally on a hinge or pivot attached to the side tram, and was so arranged as to permit of a slight vertical movement. The other end of the switch, when closed, rested on and along the main tram, so that a continuous track was formed by the connection thus made. Plaintiff was engaged in operating one of the buckets, and, in so doing, it was his duty to lose the switch connecting the side tram over which he moved the bucket under his control. Just prior to his injury he had returned with an empty bucket, and, in order to divert it from the main tram to the branch leading to the place where it was loaded, closed the switch. Shortly after he started back with a loaded bucket, but the switch was not then in place, or the connection had in some way been broken, and, as the end which should have rested upon the main tram was not supported, the switch was...