Smuggler Union Mining Co. v. Broderick

• Decision Date: 24 December 1897
• Citation: 25 Colo. 16,53 P. 169
• Parties: SMUGGLER UNION MIN. CO. v. BRODERICK.
• Court: Colorado Supreme Court

53 P. 169

25 Colo. 16

SMUGGLER UNION MIN. CO. v. BRODERICK.

Supreme Court of Colorado

December 24, 1897

Appeal from district court, Arapahoe county.

Action by Martin Broderick against the Smuggler Union Mining Company. From a judgment for plaintiff, defendant appeals. Reversed.

Wolcott & Vaile, for appellant.

Joseph W. Taylor, for appellee.

CAMPBELL J.

The plaintiff brought this action to recover damages for personal injuries sustained by him while working as a helper for a timberman in a certain stope of the defendant's mine which were alleged to have been caused by the negligence of the defendant in failing to construct and carry up the stope in which the injuries were received, in an ordinarily safe and prudent manner. The answer denied the alleged negligence, and pleaded negligence of plaintiff contributing to the injury. Upon the evidence submitted, and under the instructions of the court, the jury returned a verdict for the plaintiff upon which the court entered judgment, to reverse which the defendant company prosecutes this appeal. A number of errors have been assigned and discussed, but, in our view, it is necessary to consider only one of them, for its commission necessitates a reversal of the judgment. Some of the other questions argued are not properly in the case, and still others may not again arise hence a determination of them is not required. Counsel for the plaintiff called as a witness a miner, qualified to speak in that behalf, to testify as to the proper manner to carry up a stope, and the witness told how it should be done. Then in the form of a hypothetical question, based upon the testimony showing the manner in which the stope in question was constructed, asked of the witness if he considered such a place, thus made, an ordinarily safe place for a man to work in, to which the witness replied that it was not a safe place. Substantially the same questions were asked of other witnesses by the plaintiff, and the same answers given. Such evidence was inadmissible, and the rulings of the court thereupon were erroneous. After the witnesses had fully testified what was the right, and what the wrong, way to run a stope, and then how this stope was run, and had accurately described the place in which plaintiff was working, the jury were just as well qualified to determine whether it was reasonably safe as were the witnesses themselves. Indeed, it was the very thing which the jury were impaneled to determine. It was not, as was the question in Railway Co. v O'Brien, 16 Colo. 219, 27 P. 701, a question involving peculiar skill and science. In such cases, under a well-recognized exception to the general rule, the opinion of an expert may be given. This is because of the necessities of the case. But where, as here, the...