Mulligan v. Colorado Fuel & Iron Co.

• Decision Date: 12 September 1904
• Citation: 77 P. 977,20 Colo.App. 198
• Parties: MULLIGAN v. COLORADO FUEL & IRON CO.
• Court: Colorado Court of Appeals

77 P. 977

20 Colo.App. 198

MULLIGAN v. COLORADO FUEL & IRON CO.

Court of Appeals of Colorado

September 12, 1904

Error to District Court, Pueblo County.

Action by Mary Mulligan against the Colorado Fuel & Iron Company. There was a judgment of nonsuit, and plaintiff brings error. Reversed.

M.J. Galligan, for plaintiff in error.

Devine & Dubbs, John M. Waldron, and D.C. Beaman, for defendant in error.

GUNTER J.

Action by widow to recover for fatal injuries sustained by husband through alleged negligence of defendant. Judgment of nonsuit. Therefrom the case is here.

The evidence tended to show the following: Defendant was operating a steel plant. Deceased was employed therein as one of a gang of men in hoisting red-hot steel ingots, each weighing about 3,000 pounds, from the molds, and loading them on a car. Tongs, similar in construction to ordinary ice tongs, but weighing about 100 pounds, suspended by a chain from an hydraulic crane, were applied to the red-hot ingot and upon signal the ingot was lifted by the crane and deposited on the car. It was the duty of deceased to apply the tongs to the ingot, and, when raised by the crane, to aid in guiding it to the car. In this instance the tongs were properly applied, and upon signal from the foreman of the gang the crane, in charge of a boy, hoisted the ingot, which, after swinging around about seven feet slipped from the tongs and fell, fatally injuring deceased. The tongs were very dull, and for this reason did not hold the ingot. In this condition they were unsafe for use in handling the ingot. If defendant's foreman, whose duty it was to inspect the tongs, and, if found dull, to send them to the shop for repair, had discharged his duty, defendant would have known that the tongs were dull and unsafe at the time deceased used them. It was not the duty of deceased to inspect the tongs nor had he opportunity of doing so. There was no evidence that he had knowledge of their defective condition. To sum up, the evidence tended to show that the appliance--the tongs--furnished by the master, defendant, to the servant deceased, was out of repair in being blunt, was thereby in an unsafe condition; that defendant was charged with notice of such condition, and was guilty of negligence in its existence; that such negligence was the proximate cause of the accident. As the evidence tended to establish these conclusions, it was for the jury to determine whether it was sufficient to justify them. "Questions of negligence, as well as of contributory negligence, are generally within the province of the jury, which should not be invaded by the courts except in the clearest of cases." Colo. Midland Ry. Co. v. O'Brien, 16 Colo. 219, 226, 27 P. 701; Lord v. Pueblo S. & R. Co., 12 Colo. 390, 394, 21 P. 148; Tanner v. Harper (Colo.Sup.) 75 P. 404, 406. These conclusions, if drawn, bring the case within the rule requiring the master to provide the servant with reasonably safe appliances and to use reasonable care to maintain them in proper repair. Wells v. Coe, 9 Colo. 159, 160, 11 P. 50; N.Y. & C.M. S. Co. v. Rogers, 11 Colo. 6, 16 P. 719, 7 Am.St.Rep. 198; Grant v. Varney, 21 Colo. 329, 40 P. 771; D. & R.G.R. Co. v. Sipes, 26 Colo. 17, 23, 55 P. 1093; Colo. Milling & E. Co. v. Mitchell, 26 Colo. 284, 288, 58 P. 28. Those to whom are delegated the duty of inspecting and keeping the appliances in suitable repair are not regarded as fellow servants with those employed in...