Last Chance Mining & Milling Co. v. Ames

• Decision Date: 19 October 1896
• Citation: 47 P. 382,23 Colo. 167
• Parties: LAST CHANCE MINING & MILLING CO. v. AMES.
• Court: Colorado Supreme Court

47 P. 382

23 Colo. 167

LAST CHANCE MINING & MILLING CO. v. AMES.

Supreme Court of Colorado

October 19, 1896

Appeal from district court, Mineral county.

Action by Ella E. Ames against the Last Chance Mining & Milling Company. From a judgment for plaintiff, defendant appeals. Reversed.

Ella E Ames, as the surviving wife of Fred Ames, instituted this action to recover damages on account of the death of her husband, alleged to have been caused by the negligence of the defendant company. In its answer the mining company denied the charge of negligence, and alleged that the death of plaintiff's husband was caused by his own lack of care. On the issues thus raised, there was a trial before a jury which found for the plaintiff, in the sum of $5,000, and upon this verdict the court entered judgment, to reverse which the defendant has appealed to this court. The plaintiff's husband was employed as a trammer to work in the fourth level of defendant's mine. The company was operating this mine by means of a shaft about 14 feet wide, which was divided into three compartments, substantially equal in dimensions the north and south compartments of which were used as skip or car ways, and the middle one as a man way. In sinking this shaft, the foot wall of the vein was followed, and for the first 70 feet the pitch of the shaft ran at an incline from the horizontal of about 80 degrees; for the next 100 feet about 63 degrees; and, for the residue of the distance, about 50 degrees. The course of the shaft, as it was first constructed, slightly inclined to the right or north from a perpendicular plane drawn through a direct east and west line, but was afterwards changed so that it was substantially straight. The shaft was cribbed, and in the center of the north skip compartment, in which the accident occurred, was laid a track upon which the skip was operated. The track was about 3 feet 2 inches wide. The skip or car which was used for hauling up ore, and lowering and raising the men as they went to their work and departed from the mine, ran upon this track, and is a box of iron, rectangular in form, with the exception that at its upper end, instead of being square, it is sloping. The bottom of the skip is 5 1/2 feet in length, and the top 3 1/2 feet in length, the height 2 1/2 feet, and the width 2 feet 10 inches. The skip runs upon four wheels, one pair about 6 inches from the lower end, and the front pair about 3 1/2 feet from the lower end. At or near its lower end is fastened a bail, which runs up at each side, passing over the front of the skip, and to the center of the bail is fastened a cable by means of which the skip is raised and lowered. On this bail, near the front of the skip, shoes are fastened, one on each side, which run upon the guide rails, fastened to center pieces or uprights; and the object of this contrivance is for safety in checking the fall of the skip in case of a break or sudden slacking of the cable. The specific negligence charged against the defendant is that it carelessly and unskillfully constructed and maintained this shaft and track and the other appliances connected therewith, so that they were dangerous, unsafe, and unfit for use; that the track was unlevel and uneven, the south rail being lower than the north one; that there were depressions in the track; that the shaft was not straight, but winding, so that the track was curved; and that the guides upon which the bail of the car rested were of imperfect material, and unsafe in strength for the purpose required. And, by reason of such negligent acts, it is alleged that on November 5, 1893, while the plaintiff's husband was being raised from the fourth level of the mine in which he was working, the skip upon which he was being hoisted left the track, and one of the guides to the skip broke, and deceased was thereby forced between the skip and one of the posts projecting into the shaft from the partition of the compartment, and was killed. The specific act of negligence attributed to the deceased by the defendant is that he, with full knowledge of the danger, voluntarily got upon, and rode in, this skip, at a time when there were 12 men therein, and that the skip so overloaded was manifestly dangerous even to a casual observer, and, by reason of such overloading, the skip left the track, and the injury thereby resulted. There was evidence tending to establish plaintiff's cause of action, as well as to substantiate the affirmative defense of contributory negligence, interposed by the defendant.

Wolcott & Vaile and W. W. Field, for appellant.

Cavanagh & Thomas, M. S. Beal, and Rogers, Cuthbert & Ellis, for appellee.

CAMPBELL J. (after stating the facts).

If we should concede, as defendant claims, that this record leaves it somewhat uncertain as to what was the actual cause of this injury, nevertheless, as the evidence was conflicting, we would not be disposed to reverse the judgment on the ground of the insufficiency of the evidence. Some of the rulings of the trial court complained of, though technically erroneous, might be upheld as not being prejudicial; but there are others which cannot be sustained without overruling previous well-considered cases in this court and other courts of last resort.

Of its own motion, the court, in the nature of a general charge instructed the jury as to the duty that rested upon the defendant, as well as the law pertaining to the contributory negligence of the deceased. This was followed by a series of instructions submitted by the plaintiff, and some asked by the defendant, while other instructions requested by the...