New York & Colo. Mining Syndicate & Co. v. Rogers

• Decision Date: 27 January 1888
• Citation: 16 P. 719,11 Colo. 6
• Parties: NEW YORK & COLO. MIN. SYNDICATE & CO. v. ROGERS.
• Court: Colorado Supreme Court

16 P. 719

11 Colo. 6

NEW YORK & COLO. MIN. SYNDICATE & CO. v. ROGERS.

Supreme Court of Colorado

January 27, 1888

Appeal from district court, Chaffee county.

This action was brought by plaintiff, Rogers, to recover damages for physical injuries suffered while in the employ of the appellant company. Rogers, being a carpenter, was cribbing at the bottom of a shaft some 50 feet in depth. Tools and materials of various kinds for the work were lowered to him by means of a windlass and bucket. The bucket became detached from the rope to which it was fastened, and fell or slid, the shaft not being exactly perpendicular, to the bottom striking plaintiff upon the head and legs, and brusing other parts of his body. The injuries were severe, but in the course of three or four weeks he recovered sufficiently to do light work. The cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $300. From that judgment the present appeal is taken. The remaining facts sufficiently appear in the opinion.

M. B. Carpenter, for appellant.

No appearance for appellee.

HELM J., ( after stating the facts as above.)

The ground of recovery upon which plaintiff below relied was negligence on the part of defendant in not furnishing and maintaining safe machinery or appliances for the work in which he was engaged. The rule upon this subject is familiar. It will be found sufficiently stated in Wells v. Coe, 9 Colo. 159, 11 P. 50.

As to the defective condition of the appliance in use, and the negligence of defendant in connection therewith, the evidence is conflicting. The witnesses upon this question offered by the respective parties are about equal in number, and, where conflicts occur, the jury undoubtedly accepted the testimony of those produced by plaintiff. Such election of the jury will not be questioned by us.

Bearing this in mind, we turn to the testimony, and find that the bucket supplied was large, being the half of a barrel which had been sawed in two in the middle; that it was detached from the rope when hoisted, and reattached upon lowering that about eight feet of the lower end of the rope in use had been wet, and was frozen stiff, so that it could with great difficulty be fastened to the bail of the bucket; that this rope was adjusted at the time of the accident in the usual manner, that is, in the way the men were in the habit of making the fastening. There is conflict as to whether a 'pin' was furnished, and as to whether the frozen rope could have been passed through the loop in the bail so as to use a pin, had there been one; also as to whether specific orders were given concerning the manner of fastening the rope to the bail. It appears that the foreman had previously given instructions to have the frozen part of the rope cut off, and apparatus substituted so as to make the connection more secure; likewise that, immediately after the accident, this was done by making a knot, the frozen and being removed, and the foreman remarking that 'in the morning he would have it fixed safe.' Within 36 hours, a chain with an open link and proper accessories were furnished and in use. We think the jury were justified in finding the appliance in question unsafe; also that defendant had knowledge of its condition at least two weeks before the accident. We cannot say that the jury should have charged plaintiff with contributory negligence. This question was fairly submitted to them, and we must presume that they considered it. Therefore, unless error was committed in receiving evidence, or in charging the jury, the judgment should not be disturbed.

But it is argued by counsel for appellant that there was error in admitting proof of the foreman's declaration as to the unsafe condition of the connecting appliance furnished. No doubt exists about the making of the statement, for the foreman admits it. Counsel's position is that, being made after the injury, it should have been regarded as hearsay and rejected. According to the testimony of one witness, the declaration was made about 30 minutes after plaintiff was hurt; another witness declares that it was made 'just after the accident,' but admits on cross-examination that it might have been 'half an hour after;' while the foreman himself, who was defendant's witness, says it was 'immediately after the accident.' The foreman was defendant's agent in charge of the mine, and was upon the ground when plaintiff was injured. He proceeded at once to the shaft, and directed the employes to fix the appliance in question. His remark was called forth by the accident, and was uttered while giving instructions with reference to that which plaintiff claims was its cause. His good faith towards defendant, and devotion to its interests, are unquestioned. His purpose in the changes ordered was undoubtedly to remove danger, and prevent repetitions of similar injuries in the future. He was acting directly in the line of his duty, and for the time being stood in the shoes of his principal. The main facts under investigation by the jury upon the trial were the accident and its cause. The declaration...