Appeal
from district court, Pueblo county.
Action
by Samuel Kane against James A. McGonigle for personal
injuries. Judgment was rendered for plaintiff, and defendant
appeals. Affirmed.
Plaintiff
in his amended complaint, alleges: 'First. That on the
22d day of February, A. D. 1890, and prior thereto, James A
McGonigle, the defendant above named, was the contractor for
the building of a certain stone and brick building in the
city of Pueblo, county of Pueblo, and state of Colorado
which said building, otherwise known as the 'New Opera
House Block,' was on said day, and for a long time prior
thereto had been, in the course of construction by said
defendant, as contractor aforesaid. Second. That by reason of
the premises aforesaid said defendant became the employer of
a large force of men as stone setters, brick masons
carpenters, laborers, etc., working in and about the
construction of said building, among which said force of men
was said Samuel Kane, plaintiff above named, who, for a
certain hire and reward, was on said 22d day of February
1890, and prior thereto, employed by said defendant as boss
stone setter on said building. Third. That as the
construction of said building progressed it became necessary
to raise stone and other heavy building material to the walls
and upper floors of said building, and for this purpose
defendant had provided and had constructed on the premises a
hoisting apparatus, known as an 'elevator,' which
said elevator, as defendant is informed and believes, and
upon information and belief states, consisted of a carriage
or platform of wood, connected to a wooden beam above, which
said carriage ascended and descended between two upright
guides or slides, made of plank, and so placed with reference
to said carriage as to permit of considerable oscillation or
play of said carriage between said guides or slides. That at
the height at which it was desired to have said carriage stop
there was attached to each of said guides or slides a certain
latch, pawl, or dog, made of wood, and supposed to be held in
place by a so-called 'spring,' made of metal, to wit,
iron; the upper ends of which said latches, pawls, or dogs
were cut on a bevel to correspond to a similar bevel on
either end of said beam of said carriage, which said latches,
pawls, or dogs were intended to catch said beam at either
end, and hold said carriage in place when the same was
raised; and which said latches, pawls, or dogs were so placed
that when said carriage was raised and resting on said
latches, pawls, or dogs the top of the platform of said
carriage was several inches below the floor where said
elevator was to be unloaded. That said carriage was raised
and lowered by means of a chain or rope attached to said
beam, and connected with a steam engine and boiler, which
said engine and boiler said defendant had provided for that
purpose. That in the use of said elevator in the loading and
unloading of stone and other material carried thereon it was
necessary for the men engaged therein to go upon said
elevator and work thereon, and especially was this the case
in the loading and unloading of stone raised thereon to be
set in the walls of said building; all of which facts said
defendant well knew. Fourth. That by reason of the premises
aforesaid it became and was the duty of said defendant to
provide for the use of said Samuel Kane safe, secure, and
suitable appliances and machinery used in and about the
construction of said building; but the said defendant
neglected his duty in this behalf, and negligently provided
said elevator, and built and constructed the same so
carelessly, negligently, and unskillfully, and used in the
construction thereof material so unsuitable, insecure, and
unsafe, that the said elevator was not safe for the uses and
purposes for which the same was built and provided, of all of
which facts the said defendant well knew, and which this said
plaintiff did not know. That on the said 22d day of February,
A. D. 1890, while said plaintiff was engaged in his said
employment as aforesaid, and exercising due care and caution
upon his part, and was upon said elevator, engaged in the
work of removing from the carriage thereof a stone that had
been raised on said elevator, which was intended to be set in
the walls of said building, the carriage of said elevator, by
reason of the negligence, unskillfulness, and carelessness
hereinbefore complained of, and without any fault or
negligence on the part of this plaintiff, broke from its
fastenings, and fell to the ground below, and caused
plaintiff, together with the stone that was being unloaded
from said elevator, to fall to the ground a great distance,
to wit, about sixty-six (66) feet, whereby and by reason
whereof the said plaintiff had a fracture of the nasal bone,
and a concussion of the spinal cord and brain, and was
otherwise wounded, maimed, and lamed, and was sick and ill
for many weeks, and still is so sick and ill, and suffered,
and still continues to suffer, great mental and bodily pain
and anguish, and from said 22d day of February has been
unable to do any work or to earn any compensation whatever,
and has reason to believe and does believe that he is
permanently injured; whereby plaintiff has been injured and
damaged to a large amount, to wit, twenty thousand dollars
($20,000), and has been obliged to lay out and expend divers
sums of money in and about his cure and the procuring of the
necessary assistance and attendance and medicine during the
said sickness, in the whole amounting to a large sum of
money, to wit, four hundred (400) dollars. Wherefore
plaintiff prays judgment against said defendant for the said
sum of twenty thousand four hundred dollars ($20,400) and
costs of suit, and such other and further relief as to the
court may seem just and proper.' To this complaint a
demurrer was filed and overruled. Afterwards the defendant
filed the following answer: 'Now comes the defendant in
the above-entitled action, and for answer to plaintiff's
amended complaint herein denies that said hoisting apparatus
or elevator was constructed or arranged as stated in said
complaint, and alleges that the same was constructed in the
most approved manner, and of the best material, and was in
every way and manner adequate, suitable, and proper for the
purposes for which the same was constructed and used; denies
that defendant neglected his duty in the construction of said
elevator, as stated in said complaint, or otherwise; denies
that he carelessly, negligently, or unskillfully used in the
construction thereof material which was unsuitable or
insecure or unsafe; denies that the said elevator was not
safe for the uses and purposes for which the same was built
and used, and, on the contrary, alleges that the same was
properly and skillfully constructed of suitable, secure, and
safe materials and workmanship; denies that defendant had any
knowledge whatever in regard to any unsuitableness,
insecurity, or defect therein; denies that plaintiff did not
have full knowledge in regard to said elevator and everything
pertaining to the same, and, on the contrary, alleges that
plaintiff had full knowledge and information, and the means
of knowledge and information, in regard thereto, and better
knowledge and means of knowledge in regard to the same than
had defendant at the time stated; denies that at the time
stated plaintiff was exercising due care or caution on his
part in the work in which he was engaged, and denies that any
accident occurred to him, or that plaintiff was injured, by
or through any negligence, unskillfulness, or carelessness of
defendant, as stated in said complaint or otherwise; denies
that plaintiff was injured without any fault or negligence on
his part; denies that said carriage broke from its fastenings
and fell to the ground, as stated in said complaint, by, on
account of, through the means, or in the manner stated in
said complaint. Defendant has not and cannot obtain
sufficient knowledge or information on which to base a belief
or make answer in regard to the injuries claimed to have been
received by plaintiff, as stated in said complaint, and
therefore denies the same. Defendant, further answering,
alleges that whatever injuries were sustained by the
plaintiff were received by, through, and on account of the
acts, negligence, and want of care of plaintiff himself and
of his coemployés engaged in the same general line of
employment, and not by, through, or on account of any act,
default, or negligence on the part of defendant. Defendant,
further answering, alleges that in regard to all of the
matters...
