Richardson v. El Paso Consol. Gold Min. Co.

• Decision Date: 06 November 1911
• Parties: RICHARDSON et ux. v. EL PASO CONSOL. GOLD MINING CO.
• Court: Colorado Supreme Court

118 P. 982

51 Colo. 440

RICHARDSON et ux. v. EL PASO CONSOL. GOLD MINING CO.

Supreme Court of Colorado, En Banc.

November 6, 1911

Error to District Court, Teller County; W. A. Morris, Judge.

Action by Allen T. Richardson and wife against the El Paso Consolidated Gold Mining Company. Judgment for defendant on a directed verdict, and plaintiffs bring error. Reversed and remanded.

Charles C. Butler, for plaintiffs in error.

Chinn &amp Strickler, for defendant in error.

GABBERT J.

On July 2, 1907, Allen Richardson, Jr., a boy of nine years, was killed by falling down a shaft belonging to the El Paso Consolidated Gold Mining Company. His parents brought suit to recover damages based upon the ground that the negligence of the defendant caused the death of their son. At the conclusion of the testimony the defendant moved the court to instruct the jury to return a verdict in its favor for the reason: 'First, because the pleadings are not sufficient to support a judgment in favor of the plaintiffs or either of them; and second, Because the evidence is not sufficient to authorize a judgment in favor of the plaintiffs, or either of them.' The motion was sustained, and plaintiffs bring the cause here for review on error.

The complaint charged that the shaft in question was abandoned that it belonged to the defendant; that it negligently failed to securely fence or cover the shaft; that plaintiffs and their children lived within 110 feet of the shaft; that it was in close proximity to roads and highways extensively used by miners and others in going to and from their work; and that the ground in the near vicinity of the shaft was used by the children of the neighborhood without any objection on the part of the defendant as a playground of which fact the defendant had notice and knowledge. It is also alleged that the defendant is a corporation created and existing under the laws of this state, and engaged in mining gold and other precious metals; that the shaft in question was located upon mining property known as the Australia lode mining claim, belonging to the defendant, and situate in the Cripple Creek mining district. For answer the defendant admitted the ownership of the shaft, but denied the negligence charged, and pleaded contributory negligence of deceased and his parents. It also denied that the shaft was abandoned, and alleged that long prior to July 2, 1907, it had, at the request and solely for the accommodation of the plaintiffs, and without receiving any compensation therefor granted them permission to erect and occupy during its will and pleasure, the house wherein plaintiffs were living at the time their son was killed, which house was located on the mining premises of the defendant about 110 feet from the shaft; that plaintiffs placed their house on the premises and commenced to reside therein with full knowledge of the condition of the premises and the shaft; that at no time during the period mentioned did the defendant alter or change the condition of the premises or shaft, and that during the whole of this time the plaintiffs, as well as deceased, were thoroughly familiar with the condition of all the shafts, dumps, excavations, and paths in the immediate vicinity of their residence, and of the shaft referred to in their complaint. To these defenses, so far as affirmative, a replication was filed.

The laws of this state require (section 18, p. 364, Laws 1903; section 4297, Rev. St. 1908) 'that all abandoned mine shafts, pits, or other excavations endangering the life of man or beast shall be securely covered or fenced.' What specific questions were urged in support of the motion for a directed verdict, the record does not disclose.

On behalf of the defendant it is now contended that the complaint does not state a cause of action; that the law upon which the plaintiffs predicate their rights is unconstitutional; that the section in question is so indefinite and uncertain as to render it unenforceable; that neither deceased nor plaintiffs belong to the class of persons for whose benefit the law was enacted; that the evidence does not establish that the shaft was abandoned; that the law does not apply except as to shafts abandoned after it went into effect; and that plaintiffs were mere licensees whose rights were not violated by a failure of the defendant to protect the shaft by suitable covering or fences.

The act in question is entitled 'An act to regulate the construction, equipment and operation of metalliferous mines, mills and metallurgical plants, providing penalties for violations thereof, and repealing all acts or parts of acts in conflict herewith.' Based upon this title, it is urged that in the absence of an allegation that the shaft was upon a metalliferous mine, the plaintiffs have not stated a cause of action, within the provisions of the statute. Conceding that the act only applies to mines yielding metals, it is apparent from the complaint that the Australia was of this character. The name of the defendant indicates that it is engaged in mining gold ores. The complaint alleges that it is, and that defendant was the owner of a certain mining property known as 'the Australia Lode Mining Claim, situate on Beacon Hill, in the Cripple Creek mining district, county of Teller, state of Colorado.' The statutes of this state on the subject of mining claims located upon veins speak of them as 'lode claims,' which it is well understood means a mining claim containing a vein of metallic ore; so that the averment that the Australia was a lode mining claim is, in effect, an averment that it is a metalliferous mine.

An express averment of a fact is not necessary, when from the complaint such fact can be inferred.

In support of the contention that the statute is unconstitutional, it is urged that the Legislature is without authority to require the owner of a mining claim to keep it safe for intruders, and that doing so is, in effect, taking property for the use of another without compensation. Neither of these propositions are applicable to the facts of this case. The Legislature has the power, within reasonable limits, to prescribe regulations for the safety of the public. We think the act comes within that authority. Mining claims are not inclosed by fences. Their boundaries are only usually marked by posts, one at each corner, and one at the center of each side line. They are located in the mountains in the vicinity of unoccupied and uninclosed government lands. They are crossed and recrossed by miners going to and from their work; by prospectors searching for other mines; in fact, by all classes of persons, following their usual vocations in the vicinity where located, including children of tender years. In such circumstances, an open, unprotected shaft is a menace to life and limb. In the nighttime, or in a storm, persons may fall into it, or children may thoughtlessly approach too near the edge and be precipitated to the bottom. Reasonable provisions requiring an abandoned shaft to be so protected as to prevent such casualties come clearly within the police powers of the commonwealth. The statute is not unconstitutional. Platte & Denver C. & M. Co. v. Dowell, 17 Colo. 376, 30 P. 68.

The claim that the statute is unenforceable for ambiguity is based upon the assumption that the person upon whom the duty rests to cover or fence an abandoned shaft is not designated. The person upon whom the duty of complying with the statute devolves is the person to whom it applies. The different relations of parties to the property upon which a shaft is located might be necessary to consider in determining the person upon whom such duty is imposed. In the case at bar, however, there is no difficulty in determining that party. The defendant was the owner of the Australia; and as we understand the record, had excavated the shaft in question.

It is said the plaintiffs and deceased do not belong to the class of persons for whose benefit the law was enacted, because it was only intended to protect persons engaged in operating mines. The statute is not susceptible of so narrow a construction. On the contrary, from the very nature of mining claims, and the dangers to be guarded against from the presence of unprotected, abandoned mining shafts, it was intended to afford protection to the public generally. It is contended that a mine shaft is not abandoned unless it appears the owner left it without any intention of again using it, and that the evidence does not establish such intention on the part of the defendant. For a long time prior to the time when the boy was killed, the defendant had not used the shaft. There is no evidence tending to prove that it had been abandoned according to the legal definition of that word, in the sense that defendant had ceased to utilize it with the intention of never using it in the future. This, however, is not the test.

The intent of a statute is the law. The cardinal rule of statutory construction is to discover and enforce its intent.

In construing a statute the cause and necessity for it, the object in view, and the evil which it is intended to remedy should always be taken into consideration in determining its intention; consequently, words employed should be given that meaning, when possible, which will result in effecting the object for which it was enacted.

As we have pointed out, an uncovered and unprotected shaft is a menace to life and limb. The purpose of the Legislature was to minimize danger from this source by requiring that shafts not used for working through from the surface should be protected in the manner indicated. As applied to the facts of this case, that was the character of shafts which was meant by the expression 'abandoned mine shafts.'

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