Rice v. Van Why

• Decision Date: 04 April 1910
• Citation: 49 Colo. 7,111 P. 599
• Parties: RICE v. VAN WHY.
• Court: Colorado Supreme Court

111 P. 599

49 Colo. 7

RICE v. VAN WHY.

Supreme Court of Colorado

April 4, 1910

Rehearing Denied Nov. 14, 1910.

Appeal from District Court, Teller County; Louis W. Cunningham Judge.

Action by Mrs. W. A. Van Why against D. H. Rice. Judgment for plaintiff, and defendant appeals. Affirmed.

See also, 33 Colo. 315, 80 P. 894.

This is an action by Mrs. W. A. Van Why, begun December 5, 1899, in the district court of Teller county, to recover $5,000 from D. H. Rice and W. R. Coe, copartners under the firm name and style of the Joe Dandy Gold Mining Company, engaged in operating and developing the Joe Dandy lode mining claim in the Cripple Creek district, for the death of her husband which occurred while employed by the defendants in that work through, as is said, their negligence in failing to supply a proper and reasonably safe hoist on the property for use by the employés, while mining in a shaft thereon. The accident which resulted in the death of Van Why, occurred October 28, 1899. The case has already been here once for review, from a judgment for plaintiff for the full amount of her claim. That judgment was reversed and the cause remanded for a new trial. Such trial was had in January, 1906, resulting again in a verdict and judgment for plaintiff for $5,000 against D. H. Rice alone, his copartner and codefendant, W. R. Coe, having meanwhile died. It is to review this judgment that the defendant Rice brings the case here again on appeal.

The shaft in which the accident occurred had been sunk to a depth of about 115 feet and the work then in operation consisted in sinking it deeper, with a shift of three men, one of whom at this time was Van Why. The shaft was worked by means of a bucket raised and lowered by the engine and hoist situated in an engine room at the surface located some 40 feet from the mouth of the shaft. The power operating the hoist was communicated primarily to a short shaft at the rear of the hoist, at one end of which a small gear or pinion wheel which worked the larger gear wheel attached to the drum, on which was wound the cable by which the bucket was raised and lowered. The engine was controlled by means of a lever, by which, when it was desired to stop the bucket at any point in the shaft, the piston was 'centered,' so that the force of the steam, acting equally and simultaneously upon each side of the piston, held the machinery fast. The hoist was further controlled by a shoe-brake, operated by the same lever, which locked the main wheels attached to the same shaft, upon which was the small gear or pinion wheel, so that when the engine was 'centered' and the shoe-brake applied the shaft to which the small gear wheel was attached became immovable, thereby also rendering the gear wheel immovable and holding the drum stationary. The small gear or pinion was attached to the shaft by means of a key driven into grooves cut into the shaft and the small pinion. On the day of the accident the deceased and two other men, composing his shift, had been engaged up to a few minutes before the accident in drilling holes in the bottom of the shaft preparatory to placing blasts therein. The holes were loaded, fuse inserted and lighted by Van Why and his co-worker, one Stewart, both of whom then got into the bucket and gave the signal to hoist. They were hoisted about half way to the surface when the key locking the gear or pinion wheel on the main shaft became unseated, leaving the pinion loose upon the shaft and releasing the drum from the control of the lever shoe-brake, by reason of which the bucket containing Van Why and his companion fell to the bottom of the shaft, and either the exploding blasts, or the fall, killed them, and their bodies were partially buried beneath the débris at the bottom. Except as above noted, the hoist in question had no safety band, band brake, friction clutches or other safety appliances whatsoever. The testimony shows that a band or friction brake could have been easily and readily attached to the hoist as constructed.

The theory upon which plaintiff sought to recover in this case, and upon which she did in fact prevail, is stated in the following allegation of the first paragraph of her second amended complaint, upon which pleading issue was joined and the case tried:

'That said plant of hoisting machinery, apparatus and appliances was not such as was in common use by mining companies or persons engaged in mining, and was unsafe, defective, dangerous and insufficient, for the reason that the same was an old, weak and patched up machine and was not provided with safety bands, brakes, clutches or other frictional appliances to guide and govern the said drum while in operation; but the defendants, with full knowledge of the dangerous, defective and unsafe character and condition of said hoisting plant and appliances, carelessly and negligently furnished the same for use by its employés, and negligently and carelessly failed to keep said hoisting plant, apparatus and appliances in proper and necessary repair.'

From the testimony, the hoist appears to have been complete in itself. Negligence on the part of the defendants cannot be predicated alone on the fact that the key in question came out and left the drum loose and uncontrollable, and thus permitted the bucket to descend the shaft, as there is no proof to establish it. How or why the key came out the record fails to disclose, and that matter still remains unexplained. So that the main ground upon which a recovery may be based is that the hoist furnished was not a reasonably safe piece of machinery, in and of itself, for the purpose for which it was furnished, intended and in fact used, because it had no safety band brake, clutch or other frictional appliance to guide and govern the drum upon which was wound the cable attached to the bucket, and that such unfitness was the direct or a contributing cause of the injury.

C. W. Waterman, for appellant.

W. O. Temple and Crump & Allen, for appellee.

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

The first point urged for reversal is that the second amended complaint, upon which issue was joined and trial had, was not verified and was therefore a nullity, because the original complaint was verified, as were the original answer and replication. This amended complaint was without verification. The objection is that it is a nullity, since under the Code (Rev. St. 1908, § 67), as the original complaint was verified, all subsequent pleadings must be. This objection is not good. Plaintiff, by filing an unverified amended complaint, waived verification of all subsequent pleadings, as she might well do, without violation of the Code requirement. 'Subsequent pleadings,' as used in the Code, mean subsequent in logical sequence, or order of pleading, not subsequent in time. The fact that plaintiff verified her original complaint gave defendant no legal right to insist that she verify a new statement of her cause of action in an amended complaint. It means simply that where a prior pleading is verified, any subsequent pleading responsive thereto, other than a demurrer, shall also be verified. If, for example, plaintiff, upon her original verified complaint, had been, for some technical reason, put out of court, it would be equally logical to contend that upon bringing her suit anew she could only do so by verified complaint. No one will, we apprehend, contend for such a rule.

In support of their position, counsel have cited no authority that even suggests, that where a plaintiff states again his cause of action, by way of an amended complaint, such amended pleading must be verified because the original was. All the decisions offered by them simply announce the rule, about which there is no controversy, that a pleading responsive to a prior verified one must itself be verified.

The case of Hempstead v. Hempstead, 7 How. Prac. (N.Y.) 8, cited by appellee, is in point. There objection was made to the filing of an amended unverified complaint, the original complaint having been. In commenting upon the objection the court said:

'It was not necessary to verify the amended complaint. 'Subsequent pleading' in section 156 of the Code means subsequent in the order of pleading; not subsequent in time. It applies only to pleadings in answer to the pleading verified, or to those which follow in the order of pleading.'

This conclusion appears so sound in point of reason and logic that further discussion is unnecessary. To compel a plaintiff to verify an amended complaint, contrary to his desire, is against the manifest spirit of the Code. The purpose of the requirement is to enable a party, by verifying his own pleading, to compel his adversary to plead truthfully by responding thereto under the restraint of an oath. This privilege may be waived by either party.

The next point urged for reversal is that, on June 16, 1901, a motion was sustained by the then judge, to strike from the original complaint the allegations thereof to the effect that the hoist in question was unprovided with safety bands brakes and clutches to guide and govern its drum when at work and in operation, as being irrelevant, incompetent and immaterial, since other allegations of the complaint show conclusively, as is said, that the sole proximate cause of the accident was the falling out of the key which locked the small pinion wheel to the main shaft of the hoist. That afterwards, and on July 9, 1901, by leave of court first had, another judge then sitting, the amended complaint, on which trial was had over defendant's objection, was allowed to be filed, containing in substance the allegations which had been theretofore stricken. A like motion was again interposed on July 17, 1901, to strike these allegations from...