Mitchell v. Colorado Milling & Elevator Co.

• Decision Date: 12 December 1898
• Citation: 55 P. 736,12 Colo.App. 277
• Parties: MITCHELL v. COLORADO MILLING & ELEVATOR CO.
• Court: Colorado Court of Appeals

55 P. 736

12 Colo.App. 277

MITCHELL v. COLORADO MILLING & ELEVATOR CO.

Court of Appeals of Colorado

December 12, 1898

Error to district court, Larimer county.

Action by Anna M. Mitchell against the Colorado Milling & Elevator Company. From a judgment in favor of defendant sustaining a demurrer to plaintiff's complaint, she brings error. Reversed.

Frank J. Annis, Garbutt & Garbutt, J. Warner Mills, Clinton Reed, and Patton & Esteb, for plaintiff in error.

Robinson & Love, Rogers & Shafroth, and O'Donnell & Smith, for defendant in error.

WILSON J.

The allegations in the amended complaint in this action were as follows: "Comes now the said plaintiff by her attorney and, by leave of court first had, files this, her amended complaint in the above-entitled cause, and for cause of action alleges (1) That the defendant is a corporation, duly organized under the laws of the state of Colorado, and owns and operates what are known as the 'New Lindell Mills,' situate in the city of Ft. Collins, county of Larimer, and state of Colorado, with its principal office situate in the city of Denver and state of Colorado. (2) That, at the times hereinafter mentioned, the said defendant was engaged in rebuilding said mills at Ft. Collins, the same having been theretofore destroyed by fire; and at said time, and for a long time prior thereto, one Benjamin F. Hottel was the resident agent and manager of said mills, for and on behalf of defendant company, vested with general power in the management of said mills, with the right to employ and discharge men, direct and control their actions in and about the working of said mills, as well as the rebuilding of the same, which latter work was under the immediate supervision direction, and control of said Hottel, as the resident agent manager, and representative of defendant company. (3) That on the 7th day of August, 1896, one William M. Mitchell, who was then and there the unmarried son of plaintiff, was employed by defendant company, through its manager aforesaid, to assist in raising a smokestack at said mills, and said work was under the immediate charge, direction, and control of said manager Hottel. (4) That the said William M. Mitchell was at that time a few months over the age of twenty-two years, and had no knowledge or previous experience with handling or raising of smokestacks, and was uninformed and unacquainted with the methods employed and machinery used in conducting such operations, and relied upon the knowledge, judgment, skill, and experience of said manager, Hottel, which he believed said Hottel possessed, and who was in charge and gave the directions with respect to handling and placing the machinery used to raise the said stack. (5) That under the direction of said Hottel, manager, acting for and representing defendant company, it provided a derrick for lifting said smokestack into position, which had not been constructed for that purpose, nor to lift any greater weight than 2,500 pounds, of which facts the said Mitchell had no notice or knowledge. (6) That plaintiff is informed and believes, and so avers the fact to be, that the said smokestack weighed about 4,500 pounds, and on said last-mentioned day, under the direction of said manager, as aforesaid, the said smokestack was connected with the lifting apparatus of said derrick, the block and tackle being then unskillfully, carelessly, and negligently caused to be attached to an eye bolt in said derrick, so that the whole of the weight of said stack was placed upon a small bolt; and the said manager then and there caused the windlass to which the rope was attached for lifting the said stack to be negligently and carelessly placed directly under the stack between the engine house and elevator buildings, so that, while said stack was being hoisted, it was immediately over the heads of those employed upon the windlass, and that the said Mitchell, having no notice or knowledge that said derrick was being used in an unsafe manner, or that the said manager had not exercised reasonable prudence, skill, and judgment in providing said machinery and locating the same, continued to work at said lifting apparatus; and while so engaged at the windlass turning the same, and without any default or neglect on his part, the eye bolt holding said apparatus to the stack broke, and the said stack fell, striking said Mitchell, from the effect of which blow he then and there died. (7) Plaintiff further avers that the death of the said William M. Mitchell was caused by the negligence of the defendant company, and its manager, as its principal representative as aforesaid, in providing the unsafe and defective machinery aforesaid, and the grossly negligent manner and method in which the same was caused to be used by the said manager. (8) That the said William M. Mitchell was a few months over the age of twenty-two years, and in sound bodily health at the time of his death, and at the time thereof, and for a long time prior thereto, supported plaintiff from his earnings, who, being advanced in years and in poor bodily health, was dependent upon her said son for maintenance and support, and which said earnings at the time of his death averaged six hundred (600) dollars per annum. (9) That the bonds of matrimony existing between plaintiff and her husband, Michael Mitchell, were absolutely dissolved, by decree of divorce duly entered of record in the county court of Jefferson county, state of Colorado, on the 25th day of July, A.D.1882; and, in and by the terms of said decree, plaintiff was given the custody of the minor children, William M. Mitchell and Kate Mitchell, and charged with their support and maintenance, without any allowance from said Michael Mitchell. (10) That by reason of the default and negligent conduct of defendant company and its manager, as principal and representative, in causing the death of said William M. Mitchell, the plaintiff has been damaged in the sum of five thousand (5,000) dollars. Wherefore plaintiff prays judgment against the defendant company for the sum of five thousand (5,000) dollars, and for costs of suit." To this the defendant interposed a demurrer, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained.

The sole question at issue seems to be whether or not it was necessary for plaintiff, in order to maintain this action, to have given to defendant the notice required by section 2 of what is known as the "Employers' Liability Act," adopted in 1893. Laws 1893, p. 129. This act of 1893 is confessedly based upon and copied from a similar act passed in Massachusetts in 1887, and this, in turn, upon the English employers' liability act of 1880. This being the case, prior construction by the English and Massachusetts courts of the acts within their respective jurisdiction is important in determining the construction to be given to the same terms in our own statute. While it may not be conclusive, the subsequent enactment of the statute by the Colorado legislature is strong persuasive evidence of the legislative adoption of these prior constructions of the terms, as well as the intent and purpose of the act, and the rules by which it should be construed. With respect to the English act, it was said in Gibbs v. Railway Co., 12 Q.B.Div. 208: "This act of parliament having been passed for the benefit of workmen, I think it the duty of the court not to construe it strictly as against workmen, but in furtherance of the benefit which it was intended by parliament should be given to them, and therefore as...