Orman v. Mannix

• Citation: 17 Colo. 564,30 P. 1037
• Parties: ORMAN et al. v. MANNIX.
• Decision Date: 20 June 1892
• Court: Colorado Supreme Court

30 P. 1037

17 Colo. 564

ORMAN et al. v. MANNIX.

Supreme Court of Colorado

June 20, 1892

Appeal from district court, Lake county.

Action by Patrick Mannix against J. B. Orman and others for damages for causing the death of his minor son. There was a judgment for plaintiff, and defendants appeal. Affirmed.

The other facts fully appear in the following statement by HAYT C.J.:

Appellee Patrick Mannix, brought this action to recover damages for the death of his son William, a minor 14 years of age. The injury causing death is alleged to have resulted from the negligence of appellants, J. B. Orman et al., in whose employ the deceased was at the time. They were copartners, engaged in the business of contracting and building railroads; and were at the time employed in grading and constructing a portion of the Colorado Midland Railway Company's roadbed. In doing this work, appellants had in their employ a large number of laborers and employes engaged in various duties incident to the work. The superintendent of the work for them was one James Ford. Ford had charge of the men and work, and was termed 'a walking boss.' The number of men employed varied from 50 to 200. At this time there were about 75 distributed over a distance of about half a mile along the grade. There were four gang bosses having the supervision of this work under Ford. Among other duties, the gang bosses were to look after the work and prepare the powder for use. As to whether or not they were authorized to hire the men under them is involved in much dispute under the evidence; that Riley, in charge of the gang at the place of the accident, had the power to discharge the men is expressly admitted. The deceased was, at the time of the accident, and for some time prior thereto had been, in the employ of the defendants. It is admitted that by the terms of his employment the only services required of him were to carry water to the men, and to carry the tools used by them to the black smith shop of the defendants, to be repaired and sharpened, and return the same. In the grading it was necessary to do a large amount of blasting, and for this purpose giant powder was used. It was the exclusive and personal duty of Riley, the gang boss, among other things, to take charge and prepare for use all the powder used in and about the work over which he had charge. In the mountains where this work was being done it frequently happened that the giant powder became frozen, even as late as the month of May. The powder when frozen was unfit for use, and it was the duty of Riley, among other things, to thaw the powder preparatory to using the same. As the defendants had furnished no appliances for thawing this frozen powder, it was the practice to thaw it before an open fire. Upon the day of the accident, which resulted in young Mannix's death it became necessary for Riley to use a large quantity of this frozen powder. For the purpose of thawing it, he built a fire about 120 feet from where the men were working, and 60 feet from a huge boulder which he was about to blast. The fire being started, Riley laid about 75 sticks of giant powder against a log in front of the fire. As the powder became warm on the side nearest the fire he would turn the sticks of powder for the purpose of thawing them evenly, and as they became sufficiently warm he laid them near the fire in a pile ready for use. While this work was in progress, young Mannix came along with some steel from the shop, and stopped at the fire to warm. In a few minutes he commenced handling the sticks of giant powder, but whether or not he was ordered to do this by Riley is left in doubt under the evidence. Soon after Mannix came to the fire Riley picked up about 40 sticks of powder, and carried them in his arms to the boulder leaving about 4 or 5 sticks, which he ordered young Mannix to carry down to the boulder. When they had reached the boulder Riley commenced putting the powder in the hole drilled for that purpose. He had placed 7 or 8 sticks in the boulder, when some one near by called out: 'The powder is on fire; the powder at the fire thawing.' Between where Riley was standing at the time and the fire here was a pile of brush and logs, which partly obscured the fire from his vision. He saw, however, a peculiar blaze, which, with his knowledge of powder convinced him that some of the powder left at the fire was burning, and he said to deceased, 'Billy, run and throw that stick away;' meaning the stick of powder that was on fire. Upon receiving this command, the boy jumped and ran towards the fire. In three or four seconds after this the explosion took place, which resulted in the death of the boy. Whether he had reached the fire at this time is not clear from the testimony. As soon as the smoke from the explosion had cleared away, his lifeless body was found 12 or 14 feet from where the fire had been the instant before. A jury trial resulted in the verdict and judgment for plaintiff.

J. E. Havens, for appellants.

T. A. Dickson, for appellee.

HAYT C.J., ( after stating the facts.)

The first assignment of error discussed by counsel relates to the sufficiency of the complaint. This question was not raised, however, in any way prior to the trial. The complaint certainly states facts sufficient to constitute a cause of action. A practice which would allow the raising of other objections to a pleading at the trial is not to be encouraged. Cases should be conducted in court with the least possible expense and annoyance to litigants consistent with the proper administration of justice. The Civil Code requires all mere technical or formal objections to be raised by motion or demurrer before trial. If not so raised, they are to be deemed as waived. To wait until witnesses have been subpoenaed and the cause reached for trial before raising such objection would be to entail a needless expense upon litigants, as well as subject to unnecessary annoyance the court, witnesses, and jurors. The claim in this case is that certain allegations in the complaint are so vague and indefinite, and so interwoven with recitals, as to render the entire pleading objectionable. If the pleading is properly open to this criticism, and the defendants desired to have these allegations made more specific and definite, they might have filed a motion for that purpose, or a demurrer could have been interposed. The objection not having been taken by motion or demurrer, it cannot be considered in this court.

The additional claim, that no recovery can be had in this case because the allegation of plaintiff's damages is general, and not special, is not well founded. The complaint avers the relationship of the plaintiff and the deceased; the latter's age at the time of his death; his occupation, and the amount of his daily earnings; the employment by the defendants, and the facts and circumstances of his death, as the result of the defendants' negligence; concluding with an averment of damages to the plaintiff in the sum of $5,000. This is sufficient to permit the recovery of such damages as naturally and usually flow from the death, and these only are here claimed. Tucker v. Parks, 7 Colo. 62, 1 P. 427; City of Pueblo v. Griffin, 10 Colo. 366, 15 P. 616.

It is charged that the death of young Mannix resulted from the negligence of the defendants. The acts and omissions charged as constituting such actionable negligence may be briefly summarized as follows: First. Failure to provide some suitable appliance for use in thawing, when frozen, the explosives used in blasting. Second. In ordering deceased, a lad of 14 years, to do an act not within the scope of his employment, and extrahazardous in its nature.

We will be aided in solving the questions thus raised by having in mind the following principles of law applicable to the relations of master and servant: When one engages in the service of another, he assumes, as between himself and his employer, all the ordinary and usual risks incident to the business upon which he is about to enter. The law imposes upon the master the duty of exercising ordinary care, skill and prudence in furnishing machinery and appliances suitable for doing the work in hand, and the exercise of like care and caution in employing competent fellow servants; and, where others are given charge of the whole or a portion of the work, the master is required to use reasonable care and caution in the selection of competent assistants for such positions. In this case it is earnestly contended that the defendants were chargeable with gross negligence in failing to provide some suitable appliance for thawing the powder when frozen. A number of witnesses were introduced who testified that thawing such powder by an open fire was attended with unusual hazard and danger. It appears from the testimony of these witnesses that giant powder is composed of nitroglycerin and an absorbent of different materials. In the opinion of these witnesses, such explosive compound is liable to ignition and explosion from sparks from an open fire. It is further in evidence that it cannot be properly thawed in this way, for the reason that the heat could not be evenly applied to the powder, and thus the practice of thawing powder in this way was attended with great danger. It is in evidence that there is an appliance in ordinary and general use for thawing such powder, consisting of one vessel or tank inside of another, with space between in which to put water; the powder being placed in the inside tank, so that the heat of the water will gradually thaw it. In the opinion of such witnesses, there is little, if any, danger attendant upon thawing powder in this manner. A number of witnesses testified, however, that such an appliance was not in general use, and a...