Portland Gold Mining Co. v. O'Hara

• Decision Date: 03 May 1909
• Citation: 101 P. 773,45 Colo. 416
• Parties: PORTLAND GOLD MINING CO. v. O'HARA.
• Court: Colorado Supreme Court

101 P. 773

45 Colo. 416

PORTLAND GOLD MINING CO. v. O'HARA.

Supreme Court of Colorado

May 3, 1909

Appeal from District Court, El Paso County; Robt. E. Lewis, Judge.

Action by P. L. O'Hara against the Portland Gold Mining Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Ralph Hartzell and Wm. E. Hutton, for appellant.

George Gardner and Orr & Cunningham, for appellee.

HILL J.

Appellee P. L. O'Hara, brought this action to recover damages for personal injuries sustained in September, 1902, while in the employ of the appellant. He was working in the screenroom of its ore mill at Colorado City. The injury is alleged to have resulted through the negligence of the appellant in not inclosing the end of a revolving shaft and set screw with a screen covering, and in leaving them exposed. The screen where the accident occurred was a revolving cylinder about nine feet in length, three feet in diameter, on a shaft about twelve feet long, upon the end of which shaft was the set screw which caused the accident. The set screw was near a wooden floor, possibly nine inches from the floor, and could have been covered, but at the time of the accident was without protection, at which time there were from eight to twelve screens in motion in the room, and there was testimony that each emitted quantities of dust which would naturally come from such works. This dust was constantly settling, and was heavier near the floor, where it made objects not easily discernible. There was some dispute as to what the duties of the appellee were, and whether or not they were such as to warrant the assumption he must be held to have known and assumed the danger of the risk; also as to whether the danger was open or obvious; also, as to the condition of the light in the room. For about 18 days appellee had been employed by the company in its mill in the bedding floor below, during which time it appears he went once each day to this screenroom and brushed off these screens, 8 to 12 in number. On the eighteenth or nineteenth day after his employment, by the foreman's instructions, he took charge of these screens, and was on his second eight hour shift when he received his injury. It appears his duties were to watch the machinery, make examination of the spouts to see they did not clog up, and, when they did, to immediately perform such labors as would relieve their condition, and prevent accumulation of ore in the screens and the clogging of the elevators. There is evidence tending to show the appellee did not desire the employment in the screenroom, preferring to remain below. The evidence is conflicting as to what instructions he received, if any, at the time he assumed this employment. The evidence shows that, while appellee was showing a Mr. Fox (who was to succeed him) around, one of the screens became clogged, and appellee, in attempting to go to it quickly, went over or near the shaft and set screw on which his pants were caught, thereby receiving the injury complained of. The evidence was conflicting as to whether or not he could have gone around another way and have accomplished the act intended within the time required, and whether or not he went the ordinary and usual route. The accident occurred between 8 and 9 o'clock at night.

The first assignment of error discussed by counsel relates to the sufficiency of the evidence to warrant the court in the submission of the cause to the jury, claiming it was guilty of no breach of duty to the appellee; that the presence of the uncovered set screw and shaft constituted an open, obvious, and incidental danger, which appellee assumed by virtue of his employment, and could by the exercise of ordinary care have prevented the accident. It is a general rule, with certain exceptions, as stated by Mr. Justice Helm in the case of Wells v. Coe, 9 Colo. 160, 11 P. 50: 'In the purchase of safe machinery and appliances for use in his business, the master is required to exercise ordinary care and diligence; such care and diligence having reference to the hazards of the employment, and being proportioned to the dangers of the service. If, through the want of ordinary care in this respect, unsafe or defective machinery is procured, and the servant, without fault on his part, is thereby injured, the master is liable.' In the same case the learned judge also states: 'The master is likewise charged with the further duty of maintaining in suitable condition the machinery and appliances used in his business. In this regard, he is also required to exercise ordinary care and diligence, and is liable for injuries resulting from his ordinary negligence to the servant without fault on the latter's part; the question as to what shall constitute such ordinary care having reference likewise to the danger which the service naturally imposes upon the employé.' These same principles of the law have been approved by this court in numerous cases. Sampson M. & M. Co. v. Schaad, 15 Colo. 197, 25 P. 89; Colo. Midland Ry. Co. v. O'Brien, 16 Colo. 219, 27 P. 701; Deane v. Light & Power Co., 5 Colo.App. 521, 39 P. 346; Moffatt v. Tenney, 17 Colo. 189, 30 P. 348; Grant v. Varney, 21 Colo. 329, 40 P. 771; D. & R. G. R. R. Co. v. Burchard, 35 Colo. 539, 86 P. 749. The evidence in this case is conflicting, and we think, under proper instructions, was sufficient to go to the jury for their determination. Moffatt v. Tenney, supra.

The second assignment urged by appellant is the evidence shows, had the appellee gone around another way, a distance of 15 to 20 feet farther, it would have been a safe way, and he could thereby have avoided the possibility of the accident. The appellee testified that he did not know the set screw was there until after the accident happened. Also, he testified, as did Mr. Fox (the employé who succeeded him in this work), that the route he did go was the shortest, most direct, and natural route, and was the ordinary way in going to this particular screen and the way he (Fox) went himself. In the case of Colorado Central Railway Company v. Ogden, 3 Colo. 499, it was held, if a person of ordinary prudence would not have believed the defect dangerous, he may disregard it without losing his right to complain if he suffers from the defect while pursuing the ordinary course. We do not think the fact that there was evidence tending to show that he could have gone around some 15 to 20 feet farther in order to reach the place required to relieve a condition there calling for quick action was negligence upon his part in not doing so, when there is no evidence to the fact that he had been informed by any one that the set screw was there or evidence tending to show that he actually knew it was there, other than the contention of certain witnesses that, by looking, he could have seen it, or from the fact that it was there and readily discernible, and he would, by the use of ordinary care, have been compelled of necessity to have seen it. From the circumstances shown the fact that he did not go around was not sufficient to withdraw the case from the consideration of the jury. Gilbert v. Railway Co., 128 F. 529, 63 C.C.A. 27. The probabilities are, when we consider the general conditions at this time existing between the employer and the employé, that the employé usually does, and it is customary that he, perform the duties of his employment in the usual and ordinary way intended by his employer, and, in case he does not and insists upon a safer way, his period of employment soon terminates, and too often the question of the mode of performing the duties to be performed and the safety of the machinery used are not questions for his consideration; the paramount question with the employé being the securing of employment at all.

The fifth to twenty-ninth, inclusive, being 25 errors assigned relate to the refusal of the trial court to give the 25 instructions offered by the appellant. These alleged errors cannot be considered because no sufficient objection was raised at the time of their refusal. The record shows at the conclusion of the evidence the defendant in 25 alleged separate instructions requested the court to instruct the jury upon nearly every conceivable phase of the law applicable to any case of personal injury. These requests were offered all together, starting with the one titled 'Defendant's request No. 1.' They were not signed by counsel, separate or at all. There is no refusal indorsed thereon by the court. There is a statement in the bill of exceptions: 'But the court to give all, each, or any of the above and foregoing instructions so requested by the defendant.' The only objection thereto reads as follows: 'To which refusal of the court to instruct the jury as requested the defendant then and there, by counsel, duly excepted.' This was not sufficient for reasons often stated by this and other courts. There was no objection made or exception taken to...