Parkdale Fuel Co. v. Taylor
| Decision Date | 14 December 1914 |
| Docket Number | 3785 |
| Citation | 144 P. 1138,26 Colo.App. 304 |
| Parties | PARKDALE FUEL CO. v. TAYLOR. |
| Court | Colorado Court of Appeals |
Appeal from District Court, Boulder County; Harry P. Gamble, Judge.
Action by Catherine Taylor against the Parkdale Fuel Company. From a judgment for plaintiff, defendant appeals. Affirmed.
See also, 23 Colo.App. 80, 127 P. 252.
Julian G. Dickinson and A.H. Felker, both of Denver, for appellant.
Davis Whitney & Mothersill, of Denver, for appellee.
Appellee plaintiff below, hereinafter called the "plaintiff," charges in her amended complaint that her husband, Job O. Taylor, while in the employ of the Parkdale Fuel Company, appellant and defendant below, hereinafter called the "defendant," was killed as the result of its negligence in failing to provide places of refuge along its slope in its coal mine known as the Parkdale mine located in the town of Lafayette, county of Boulder, and state of Colorado, as required by the provisions of R.S.1908, § 644, and in failing to furnish proper safety devices and appliances at the head of said slope, near the tipple, so as to prevent the escape of cars down said slope. She further charges that the death of her said husband was caused by the negligence of one Stephen Gobo, a fellow servant and coemployê, for which she contends the defendant company is liable under the provisions of section 1, c. 67, Session Laws of 1901 (section 2065, R.S.1908), and alleges that his negligence consisted in his "failing to take the proper steps and to do the necessary acts to prevent the said coal car from leaving the tipple of the said mine until the said car was properly coupled and attached to other cars and held under control by the cable which regulated the descent of said coal cars into the said mine." On each of the three causes of action relied upon, she demands judgment in the sum of $5,000 and costs of suit. The answer contains a general denial, and sets up, as defenses, the assumption of risk and contributory negligence on the part of the deceased, and the invalidity of the act relied upon, known as chapter 67, Session Laws of 1901, providing for a right of action for injuries or death resulting from the negligence of a fellow servant or coemployé. All of these defenses are denied in the replication, and the case was tried to a jury, which found for the plaintiff in the sum of $5,000, and upon the verdict, after overruling a motion for a new trial, the court entered judgment in accordance therewith.
There are numerous errors assigned, 54 in number, three of which are directed to an alleged misconduct of counsel in the examination of a juror on his voir dire, five to the admission of testimony over the objections of counsel, one to the amendment of the complaint, five to the application of the law and the weight of the evidence, and the remainder to the giving and refusing of instructions. The merits of the appeal, however, rest, in our opinion, upon the sufficiency of the evidence received at the trial to support the verdict of the jury and the judgment entered thereon.
The undisputed testimony shows that the slope in which the plaintiff's husband was killed was about 1,000 feet long and about 8 feet wide in the vicinity of the accident, and that all the coal was taken from the mine through this slope in trips of four cars each. The rope or trip rider, Louis Evans, received the trips of loaded cars at the bottom of the slope and rode on the front car of each trip, where the rope was attached, until the trip would reach the surface, where it was received by the men on the top of the slope, weighed, dumped, coupled together again by means of coupling pins, and made into a trip of empties to be returned to the mine through the slope when the next loaded trip should reach the surface. When the loaded trip was over the knuckle, or safely beyond the mouth of the slope, the trip rider would detach the rope therefrom and attach it to the trip of empties; and, when the trip of empties was ready for descent, he would signal the engineer in the tipple house and return with it into the mine. Stephen Gobo was employed on the top of the slope, or on the tipple, and it was his duty to receive and prepare the empty cars for descent. He had been ill with typhoid fever for a time, and commenced or resumed his duties the morning of the accident. To prevent an escape of cars down the slope, there was a block bolted to a plank some distance from the knuckle, or mouth of the slope, and this block was placed or swung across the rail or track while the empty cars were being prepared or made into a trip for descent, and, when the descent was about to be made, the block was removed from the rail or track and the cars moved to the mouth of the slope, whenever necessary, by the trip rider and Gobo until they acquired sufficient momentum to descend. At the time of the accident, there were about 100 men employed in the mine, and all generally entered and returned to their places of work through the slope. Their hours were from 7:30 a.m. to 4 p.m., and one trip of four cars was run at each of those hours for the men to ride into and out of the mine. Those trips were insufficient to accommodate all of the men, and therefore some of them were obliged to walk up and down the slope. A set of electric wires about three inches apart was strung along the side of the slope from the bottom thereof to the tipple house on the surface, by which any person being or working anywhere on the slope might signal the engineer in the tipple house by making a circuit with a short piece of iron or metal, which the employés usually carried with them, and thus suspend the operation of the slope as long as necessary. Regarding the places of refuge or safety holes in the slope, Thomas Page, the pumpman at the mine, a witness for the plaintiff, testified in part as follows:
In this respect he does not seem to be contradicted. In fact, his seems to be the only testimony elicited by either party regarding the places of refuge or safety holes along the slope. He further testified that the slope In this he seems to be contradicted by H.H. Smith, foreman or pit boss at the mine, a witness for the defendant, who testified that the slope ranged from 8 to 20 feet wide. There were about 30 rollers along the entire length of the slope to prevent the rope from dragging on the ties and ground, and the average life of each roller was from a month to two months, so that it was necessary to repair or replace from 15 to 30 rollers per month. It was the duty of the deceased to do any "work that he had to do about the mine," to keep the slope in which he was killed in repair, and to examine, oil, clean, and promptly repair or replace the rollers when necessary. No other person had charge of this work. He was a "handy man" or general repairman about the mine, and was very competent in his work. Concerning his presence on the slope at the time of the accident and the attending conditions, Page, above named, testified in part as follows:
"He (Taylor) was under the supervision of the boss. Whatever the boss told him to do. *** He seemed to be attending to the slope and doing carpenter work around the mine. I was what they call the 'pumpman.' Pumped the water and laid pipes for air and water. *** At the time of his death I was on a place they call the 'first level,' just off to the left of where he was killed, probably 200 feet away from him. I went immediately to the place. Prior to the day of this accident the pit boss (Mr. H.H. Smith) had sent Mr. Taylor to build me a little shop in the mine. *** I didn't have a shop to work in, and I called the attention of the pit boss, and he sent Mr. Taylor down to build anything I instructed him to build; so I told him what I would like to have, and he set about doing it. This was the day prior to the accident. He didn't get it finished that day. Next morning when we came to the mine, Mr. Taylor went into the mine as usual. He went ahead of the men and ahead of the cars to oil the rollers so that he would not be on the slope when the cars was going up and down. *** Mr. Taylor come to me and says: Well, Mr. Taylor had left me quite a little bit. The rope rider comes into the mine and says, 'Do you know where old man Taylor is?' I says, 'He went through the braddish to go up the back slope.' He says: I says, 'You will find him on the slope, I think.' The rope rider went up with the usual...
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