Miller v. Camp Bird, Limited

• Decision Date: 06 December 1909
• Citation: 46 Colo. 569,105 P. 1105
• Parties: MILLER v. CAMP BIRD, Limited.
• Court: Colorado Supreme Court

105 P. 1105

46 Colo. 569

MILLER v. CAMP BIRD, Limited.

Supreme Court of Colorado

December 6, 1909

Error to District Court, City and County of Denver; Frank T Johnson, Judge.

Action by Charles M. Miller against the Camp Bird, Limited. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

B. E. Woodward and Lucius W. Hoyt, for plaintiff in error.

Thomas Bryant & Malburn, Goudy & Twitchell, and C. H. Redmond, for defendant in error.

MUSSER J.

The plaintiff in error, who was plaintiff below, began work for the defendant in the Camp Bird mine on November 11, 1902. The first day he carried plank into the mine; the next day he was engaged in putting timbers overhead in a tunnel; the third day he sawed plank in the tunnel and helped to elevate the plank, after being sawed, to a stope; on the fourth day, the 14th day of November, he was engaged as a helper with one Dalra in planking an ore chute. The planks were nailed to stulls, which were about six feet apart. Dalra stood on the stull to which he nailed the lower ends of the planks, and the plaintiff stood on the next stull above nailing the upper ends of the planks. They had two single jacks and two axes. A single jack is a double-headed hammer the heads being flat instead of round. The axes were the ordinary axes used in chopping, except that the handles were about two feet long. Dalra would first nail the lower end of a plank, and then the plaintiff would nail the upper end. Dalra used an axe or a single jack alternately. They thus continued, until about quitting time. About that time, Dalra watched the plaintiff drive a nail into the upper end of the plank, and offered to drive one for the plaintiff.

The plaintiff assented, and handed Dalra a single jack, but Dalra took an axe instead. Dalra started a spike into the plank just beneath where plaintiff stood, and attempted to drive it through the plank into the stull, but it bounded. Dalra started another spike, and it bounded. He started a third one, uttered an angry exclamation, drew back to gain greater force, and attempted to drive the spike with a violent blow; or, as the plaintiff described it, 'Dalra drew back and used his whole force.' The spike was struck in such a manner, and with such violence, that it was driven upwards swiftly, and struck the plaintiff in the eye. At that time plaintiff's head was about six feet above the point where Dalra attempted to drive the spike. The plaintiff's eye was very much injured, and had to be removed. The planks used were somewhat knotty, although there is no evidence that Dalra was attempting to drive the spike through a knot. When Dalra started to drive the spike that struck plaintiff, the plaintiff told him 'to look out, or you'll get hurt.' Several times before that, during the afternoon, the spikes which Dalra was attempting to drive in the lower end of the plank bounded away, and once or twice the plaintiff warned Dalra to be careful or he would hurt himself. While Dalra was driving the spikes in the lower end of the planks, his body was between the spikes and the plaintiff. The axe used by Dalra to drive the spike that struck plaintiff was an old one, somewhat battered and rounded. When plaintiff was employed by the defendant, he was told that the wages would be $3 a day; that the company had a hospital at Ouray, near where the mine is located, with first-class physicians, and that plaintiff could have the use of the hospital, with board, bed, medicine, and physicians. The plaintiff's testimony leaves the impression that he was to receive those things 'in case I got sick with a fever or something that way.' Later on the plaintiff received his pay for the 4 days he had worked in the mine, less $1 deducted for hospital fees. After the accident, plaintiff was taken to the hospital at Ouray, where he remained for 16 days, during which time he was waited upon by the physician in charge, and cared for by the Sisters who conducted the hospital. He then asked the physician if he had better go to an oculist. The physician said it would be better, and gave him the names of several oculists in Denver, and wrote a note to one of them. The plaintiff went to the oculist to whom the note was directed. This oculist treated the eye for several days, and then caused it to be removed. The plaintiff paid the oculist about $232.50 for services, and he also paid $14.30 for railroad fare from Ouray to Denver.

Plaintiff brought this action, setting forth in his complaint two causes of action. In the first he seeks to recover under the employer's liability act of 1901 (Laws 1901, p. 161, c. 67), for injuries sustained in consequence of the negligence of a co-employé. The act provides that an employer shall be liable in damages for injuries which may result to an employé from the carelessness or negligence of another employé, in the smae manner and to the same extent as if the carelessness or negligence causing the injury was that of the employer. After stating that Dalra was engaged with him in constructing an ore chute, and that it was the duty of Dalra to provide himself with and to use reasonably proper, safe, and sufficient tools with ordinary care, the complaint alleges: 'That, notwithstanding his duty, said Dalra did negligently omit to provide himself with and to use reasonably proper, safe, and sufficient tools with ordinary care in and about the doing of said work, and, contrary to his said duty, did negligently provide himself with and use improper, unsafe, and insufficient tools with lack of ordinary care as to cause a nail, which he was attempting to drive into said lumber with an axe, to bound and fly therefrom and strike plaintiff in the left eye.' In the second cause of action, the plaintiff alleges that, as a part of the contract of employment between himself and defendant, it was agreed, in consideration of the sum of $1 a month, to be deducted by the defendant from such wages as might from time to time accrue to plaintiff, that the defendant would provide the plaintiff with such medical and hospital treatment as might become necessary or proper in the treatment of any injuries that plaintiff received while so employed, and that during the time of such treatment the defendant would keep, care for, and maintain the plaintiff; that the plaintiff was injured on the 14th day of November, 1902, while working for the defendant, by reason whereof medical and hospital services and treatment became, for a long time, necessary and proper; that the defendant was requested to provide the plaintiff with such medical and hospital services and treatment, which it failed to do, and likewise failed and refused to board, keep, care for, and maintain plaintiff during the time that medical and hospital services and treatment were needed and proper, and further sets out the expenditure of $232.50 for hospital and medical services and $14.30 for railroad fare, and $100 for board, care, and maintenance, all of which he seeks to recover. At the close of plaintiff's case the defendant asked the court to direct the jury to return a verdict in its favor as to both causes of action. The motion was granted by the court, and the verdict directed. The plaintiff duly excepted to the direction of the verdict by the court, and also duly excepted to the verdict as rendered pursuant to the direction. The plaintiff now seeks to have the action of the court in directing the verdict reviewed.

But two questions, relative to the first cause of action, are submitted for consideration: First. Did the case, as made by plaintiff, show that he assumed the risk of the injury? The defendant contends that it does. The lower court did, and for that reason directed the verdict. Second. Was notice given to the defendant of the time, place, and cause of the injury, if such notice is required by the act of 1901?

Under the allegations of the complaint the negligence of the co-employé consisted of two acts: First, in negligently providing himself with improper, unsafe, and insufficient tools; second, with negligently using improper, unsafe, and insufficient tools with lack of ordinary care. To provide one's self with tools is one thing; to use those tools is another thing. One may select improper, unsafe, and insufficient tools, and yet use those tools, under the circumstances, with such ordinary care that no injury may result; on the other hand, he may select such tools and use them with such lack of ordinary care as to cause injury. To assume the risk of working with a co-employé who has selected improper, unsafe, and insufficient tools is one thing, while to assume the risk of working with a co-employé who uses improper, unsafe, and insufficient tools with a lack of ordinary care is another thing. If it be granted, for argument's sake (but not decided), that Dalra had provided himself with improper, unsafe, and insufficient tools, and that the plaintiff had assumed the risk of working with him, with such tools, that is not granting that the plaintiff assumed the risk of Dalra's using those tools with lack of ordinary care. The evidence in the case shows that Dalra, in an angry manner, suddenly drew back, and with his whole force struck the spike, which caused the injury to plaintiff. He did not do so before. His use of the tools before that did not arouse in plaintiff any apprehension of danger to any one but Dalra himself. True the spikes frequently bounded before that, but it does not appear that they bounded in the direction of, nor as far as, plaintiff. Even the bounding of the two spikes at plaintiff's end of the plank, immediately preceding the bounding of the one that struck his eye, does not appear to indicate that plaintiff was in any apparent danger at the distance he was away if Dalra...