Monarch Mining & Development Co. v. De Voe

• Decision Date: 02 April 1906
• Citation: 36 Colo. 270,85 P. 633
• Parties: MONARCH MINING & DEVELOPMENT CO. v. DE VOE.
• Court: Colorado Supreme Court

85 P. 633

36 Colo. 270

MONARCH MINING & DEVELOPMENT CO. v. DE VOE.

Supreme Court of Colorado

April 2, 1906

Error to District Court, Teller County; Louis W. Cunningham, Judge.

Action by William De Voe against the Monarch Mining & Development Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Wm. J. Miles, for plaintiff in error.

Temple & Crump, for defendant in error.

MAXWELL J.

Defendant in error, 31 years of age, having had about four years' experience as a miner, was employed by plaintiff in error as a trammer at the Caledonia mine in the Cripple Creek mining district. The mine workings in which he was employed consisted of a shaft 220 feet deep, from the bottom of which a drift was driven. The shaft was timbered with square sets of timbers. The first 100 feet were tightly lined. The second 100 feet were lined so as to partially cover the sides. The last 20 feet were wholly unlined. It was defendant in error's duty to take the empty buckets from the hoisting cable in the shaft, place them on a truck, run them to the breast of the drift, load them, tram the loaded buckets to the shaft, and attach them to the cable. In taking an empty bucket from the cable it was necessary for him to take hold of it by the rim to settle it squarely on the truck. While in the performance of this duty, his right hand resting on the rim of the bucket, a falling rock struck his hand, injuring three fingers so as to necessitate amputation of the two middle fingers. This suit is to recover damages for the injury occasioned thereby. At the close of plaintiff's testimony defendant, plaintiff in error here moved a directed verdict, which was denied. The errors assigned and discussed are based upon this ruling.

The negligence charged was the failure to properly timber the shaft.

The defense was contributory negligence and assumed risk. The doctrine of assumed risk by an employé is settled in this jurisdiction. As applicable to the facts in this case it is thus stated in Denver Tramway Co. v. Nesbit, 22 Colo. 408 411, 45 P. 405, 406: 'An employé assumes all the risks naturally and reasonably incident to the service in which he engages, and those arising from defects or imperfections in the thing about which he is employed that are open and obvious, or that would have been known to him had he exercised ordinary diligence. By voluntarily continuing in the service with knowledge, or means of knowledge equal to his employer's, of any defect in the appliances or the machinery used, and without objection, or promise on the part of the employer to remedy the defect, the employé assumes all the consequences that result from such defect and waives the right to recover for injuries caused thereby.' See, also, Wells v. Coe, 9 Colo. 159, 11 P. 50; Iowa G. M. Co. v. Diefenthaler, 32 Colo. 391, 76 P. 981; Harvey v. Mountain Pride G. M. Co., 18 Colo.App. 234, 70 P 1001; Dickson v. Newhouse (Colo.), 82 P. 537. All the authorities recognize an exception to the above rule, which exception is recognized by this court in the italicized portion of the foregoing quotation. See, also, Colo. Cent. R. R. Co. v. Ogden, 3 Colo. 499; B. & C. R. R. Co. v. Liehe, 17 Colo. 280, 29 P. 175; C. F. & I. Co. v. Cummins, 8 Colo.App. 541, 46 P. 875. Hough v. Railway Co., 100 U.S. 224, 25 L.Ed. 612, a leading case, was an action by the representatives of a locomotive engineer against the railroad company. The negligence complained of, and to which was attributed the death of the engineer, was the defective condition of the pilot of the engine, of which the engineer had given notice to the proper officers of the company, and they promised that it should be remedied. Justice Harlan, in the course of the opinion, quoted with approval Shearman & Redfield on Negligence, § 96: 'But there can be no doubt that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept'--citing cases, and also the following from Cooley on Torts, 559: 'If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant by continuing the employment engages to assume the risks.' In Indianapolis, etc., Ry. Co. v. Watson, 114 Ind. 20, 27, 14 N.E. 721, 725, 5 Am.St.Rep. 578, cited by plaintiff in error, Judge Elliott states the rule and the exception as follows: 'The rule which we regard as sound in principle, and supported by authority, may be thus expressed: The employé who continues in the service of his employer, after notice of a defect augmenting the danger of the service, assumes the risk as increased by the defect, unless the master, expressly or impliedly, promises to remedy the defect.' And again at page 32 of 114 Ind., page 727 of 14 N. E.: 'Where there is a promise to repair which induces the employé to continue in the service, then, doubtless, he may, for a reasonable length of time, rely on the promise and continue in the service, unless the danger of continuance, without a removal of the cause of it, is so great that a reasonably prudent man would not assume it.' See, also, Conroy v. Vulcan Iron Works Co., 62 Mo. 35; Mfg. Co. v. Morrisey, 40 Ohio St. 148, 48 Am.Rep. 669; Mo. Furnace Co. v. Abend, 107 Ill. 44, 47 Am.Rep. 425, and Colorado cases above cited. Here the plaintiff testified: That a few days preceding the accident he noticed that the unlined portion of the shaft, about 15 feet from the bottom, had a somewhat shattered and broken appearance. That it looked dangerous. That two days before the accident he told the defendant's superintendent that the shaft was not safe, and said: 'Don't you think it ought to be lined clear down?' The superintendent replied: 'Yes, and I am going to do it at once. I am going to do it right away.' That he continued to work in the shaft, relying upon this promise. That at the time the injury was received he had not abandoned the expectation that the promise would be kept. We think this promise of the employer brought the plaintiff within the exception to the rule above stated.

It is contended by plaintiff in error that plaintiff's testimony disclosed that the danger was so great, continuous, and imminent that plaintiff's continuance in the employment with knowledge of such danger, was per se, such contributory negligence, as would prevent a recovery, and that where such imminent danger exists, there is no such thing as a reasonable time to repair, other than presently and before the work proceeds further. The plaintiff testified, in substance, upon this point, that the shaft looked as though it was dangerous; 'it had a somewhat shattered appearance;' he 'did not consider it real safe;' that he had worked there 13 shifts preceding the accident, and no rock had fallen; that 8 or 9 more experienced men than himself were using the shaft; that he did not expect it to fall until the superintendent would have time to timber it; that it did not look as though the whole shaft would cave in; that, while it looked as though rock could fall at any time, it did not look as though it would fall. The motion for a directed verdict admits the truth of plaintiff's evidence, and every legitimate inference which might be drawn from it. It is only when the facts are undisputed, as they are in this case, and are such that reasonable, intelligent men can fairly draw but one conclusion therefrom, that the question of negligence or contributory negligence is ever considered one of law for the court. There have been repeated decisions by the courts of this state, as to when, in cases of this character, a court is warranted in granting a nonsuit, or directing a verdict at the close of plaintiff's case.

The rule here established is, in substance, that the court must not invade the province of the jury, except in the clearest of cases, and will not grant a nonsuit, or direct a verdict unless the evidence, in the most favorable light in which it may be considered in behalf of plaintiff shows that plaintiff was guilty of contributory negligence. Noffatt v. Tenney, 17 Colo. 191, 30 P. 348; Railroad Co. v. Martin, 7 Colo. 599, 4 P. 1118; Lord v. Pueblo S. & R. Co., 12 Colo. 393, 21 P. 148; Empson Packing Co. v. Vaughn, 27 Colo. 66, 59 P. 749; D. & R. G. R. R. Co. v. Spencer, 27 Colo. 313, 61 P. 606, 51 L.R.A. 121; Denver v. Soloman, 2 Colo.App. 540, 31 P. 507; Allen v. Florence & C. C. Ry. Co., 15 Colo.App. 213, 61 P. 401; in Denver v. Soloman, supra, it is said: 'In order to justify the court in withdrawing the case from the jury, the facts of the case should not only be undisputed, but the conclusion to be drawn from those facts indisputable.' In D. & R. G. R. R. Co. v. Spencer, supra, this court said: 'When the question of negligence is dependent upon inferences to be drawn from acts and circumstances of that character that different intelligent minds may honestly reach different conclusions on the question, it is for the jury to determine, under appropriate instructions, whether or not negligence has been established. [Citing cases.] * * * When, on the question of contributory negligence, the facts and circumstances are such different minds may honestly draw different conclusions therefrom, on this subject, it is within the province...