Moffatt v. Tenney

• Decision Date: 07 March 1892
• Citation: 30 P. 348,17 Colo. 189
• Parties: MOFFATT et al. v. TENNEY. [1]
• Court: Colorado Supreme Court

30 P. 348

17 Colo. 189

MOFFATT et al. v. TENNEY. ^[1]

Supreme Court of Colorado

March 7, 1892

Appeal from district court, Lake county.

Action by wife to recover damages for the death of her husband. Mary Tenney was plaintiff, and David H. Moffatt, Jr., Jacob J. B Du Bois, H. A. W. Tabor, and James G. Blaine were defendants in the district court. The plaintiff obtained judgment for $5,000. The defendants bring this appeal. Affirmed.

C.J. Hughes, for appellants.

C C. Parsons, for appellee.

ELLIOTT J.

The gravamen of the complaint is that the negligence of the defendants caused the death of the plaintiff's husband, Charles Tenney, thus rendering defendants liable to plaintiff in damages under the statute,--(1 Mills' Ann. St. § 1509.) The defense principally relied on is that Tenney's own negligence contributed to cause his death, thus defeating plaintiff's recovery.

1. The ruling of the court denying defendants' motion for a nonsuit is the first matter assigned for error. The defendants introduced no evidence, but it is contended that they were entitled to a verdict and judgment as a matter of law upon the evidence produced by plaintiff. This court has decided in numerous cases that the province of the jury in determining questions of negligence and of contributory negligence should not be invaded by the courts except in the clearest of cases. The court will not grant a nonsuit or direct a verdict in favor of a defendant on the ground of contributory negligence, unless the evidence, in the most favorable light in which it may be reasonably considered in behalf of the plaintiff, shows that the plaintiff (or, as in this case, the representative of the plaintiff) was guilty of negligence which contributed to cause the injury as alleged, and without which the injury would not have happened. Contributory negligence is a matter of defense to be shown by a preponderance of the evidence, though it may sometimes be shown by the plaintiff's own witnesses. Railway Co. v. Twombly, 3 Colo. 125; Lord v. Refining Co., 12 Colo. 393, 394, 21 P. 148; Railway Co. v. O'Brien, 16 Colo. 219, 27 P. 701; Railway Co. v. Ryan, 17 Colo. ----, 28 P. 79; and authorities cited in the foregoing opinions.

2. Tested by the foregoing principles, a brief statement of the evidence will suffice to show whether or not the trial court would have been justified in granting a nonsuit, or in directing a verdict in favor of the defendants in this case. In January, 1886, the defendants, being the owners of the Maid of Erin lode mining claim situate in Lake county, Colo., were employing a number of men in and about the work of developing and extracting ores from said mine at a great depth. Charles Tenney, the plaintiff's husband, was one of these employes. On January 18, 1886, said Tenney, one H. S. Dean, and one Frank Fuller were working together at a level 500 feet or more below the surface in said mine. They were under the immediate control of Reuben Brown, foreman of the mine. Some time in the forenoon of that day these three men were taken up from said lower level to the pump station, about 50 feet above, to do a little work picking up timbers and cleaning up while the timbers about the shaft were being hewed or adzed off so that the cage would run smoothly. These timbers had become wet and swelled, so that the cage, which had been used some time before for hoisting ore and carrying the men, would stick in some places. At the noon hour the three workmen were taken to the surface in a bucket to their lunch. After lunch these men were taken back to the pump station in the bucket, and were told by the foreman to wait there until the cage should come down, when they were to go again to the lower level to resume work in the mineral. They were given to understand that the cage would be down in a few minutes. There was not much work for them to do at the pump station. After waiting for something over an hour, the foreman came down with the cage, and upon arriving at the pump station (according to the testimony of Dean and Fuller) he exclaimed, 'Ho, boys; here is the cage!' The three men started for the cage. Tenney was nearest the cage, and got there first. The foreman had stepped from the cage. Tenney sprang into it, when immediately the cage fell, with Tenney in it, to the lower level, and Tenney was killed by the fall. The foreman, in his testimony, says that he did not call out to the men, 'Ho, boys; here is the cage!' He says that he gave them no order to enter the cage, and that he used no language calculated to convey the impression that they were to take the cage at that time. On the contrary, he testifies that the cage stuck in the timbers about two feet above the level of the pump station; that he stepped off to look under the cago to see what was the matter; that, as he straightened up, Tenney came forward, and asked how he was making it; that he replied, 'Pretty good,' and then turned and saw the slack of the cable coming down; that he stuck his light on a post, and took hold of the bell rope; that just as he pulled the cord he saw Tenney on the cage; that Tenney had passed around behind him, and stepped on the cage without his knowing it; that he must have given a sort of jump to get on the cage, and that the cage immediately went down, before anything could be done to rescue him. The evidence certainly tended to show that the cage was not in good order. The clutches or safety catches were particularly defective. They were too much curved, and the springs were too weak to make them work effectively. The foreman testified that the object of the clutches or safety catches was to hold the cage in case the cable should break, or if it should slack, and that if the clutches had properly performed their office they would have caught the guides, and prevented the cage from falling.

Counsel for appellant, in his elaborate brief, says: 'It may well be granted, ex gratia, that the clutches in the cage were out of repair, and failed to work.' But, as the learned counsel further says: 'This, without more, gives the appellee no right of recovery.' The evidence does not show that Tenney knew of the condition of the cage, or of its defective clutches or safety catches. He was a common miner, employed with drill and pick at three dollars per day. The condition of the cage, and the running of it, do not appear to have been within the sphere of his employment. His duty was to work under the direction of the foreman, who testified that he had the authority to employ and discharge such workmen when it was necessary. Tenney was engaged in a dangerous occupation. He was working for the interest and profit of his employers. It was their duty, therefore, to exercise reasonable care and diligence in providing for his safety while thus employed. This duty included the exercise of reasonable care in procuring and keeping in repair the machinery and appliances by which their employes were to be carried to and from their work in the bowels of the earth. See Wells v. Coe, 9 Colo. 161, ^[1] and cases there cited; also, 2 Thomp. Neg. 972. Upon the evidence produced it was the province of the jury to determine whether the defendants had or had not exercised reasonable care and diligence in respect to the condition of the cage and its appliances for preventing accidents. Furthermore, it was a question for the jury to determine from the evidence whether Tenney was acting in the line of his duty, and with reasonable care and caution, or otherwise, in getting on the cage when he did. The evidence tended to show that he and his fellow workmen had been given to understand by the foreman that they were to go by the cage to the lower level to work in the mineral as soon as the cage should come down. The foreman's language, 'Ho, boys; here is the cage!' (according to the testimony of Dean and Fuller) was calculated to convey the impression that the cage had arrived for that purpose. According to the testimony of the foreman, his reply to Tenney that he was making it 'pretty good,' was in no sense a warning not to get on the cage. On the contrary, it was calculated to assure Tenney that everything was all right. No reason is perceived why Brown should not have told Tenney that the cage was stuck, instead of answering that he was making it 'pretty good.' From the evidence the jury might well come to the conclusion that Tenney had reason to consider himself called to go by the cage to the lower level. Under such circumstances, his prompt response to such call should not be set down against him, but rather to his credit as a willing workman, zealous to advance the interests of his employers. The issue upon the alleged contributory negligence of Tenney, as well as the issue upon the alleged negligence of the defendants, was, upon the evidence adduced, proper to be submitted to the jury. The court did not err in denying the motion for a nonsuit.

3. It is insisted that the court erred in giving to the jury certain special instructions asked by counsel for plaintiff, for the reason that the same were not 'numbered and signed by the plaintiff or his attorney asking the same,' as required by the Code. Section 187 cl. 5. It distinctly appears that each of the instructions prayed by the respective parties was marked or indorsed by the court, indicating its action thereon as the Code requires. But it does not appear that the omission of plaintiff's counsel to sign or number the instructions asked by him was objected to at the trial. If timely attention had been called to such omission, the trial court might have...