Tanner v. Harper

• Citation: 75 P. 404,32 Colo. 156
• Parties: TANNER et al. v. HARPER.
• Decision Date: 01 February 1904
• Court: Colorado Supreme Court

75 P. 404

32 Colo. 156

TANNER et al. v. HARPER.

Supreme Court of Colorado

February 1, 1904

Error to District Court, Teller County; Wm. P. Seeds, Judge.

Action by Lewis Harper against S. J. Tanner and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Action by defendant in error to recover damages for personal injuries claimed to have been caused by the negligence of plaintiffs in error. From a verdict and judgment in the sum of $5,500, the defendants bring the case here for review on error. The errors assigned are permitting an amended complaint to be filed, refusal to strike certain testimony overruling motions for nonsuit and to direct verdict for defendants, the giving and refusal of instructions, alleged improper statements of counsel, and the examination of the jurors on their voir dire.

T. J. Lock and Thomas, Bryant & Lee, for plaintiffs in error.

Henry H. Clark and S.D. Crump, for defendant in error.

GABBERT C.J. (after stating the facts).

Plaintiff was in the employ of defendants, who were engaged in operating a mine under a lease, and while in the discharge of his duties growing out of such employment was injured by a truck falling down a winze in which he was at work. The complaint filed averred that the injury sustained was caused by the negligent manner the defendants operated their mining property and the defective construction of certain specified appliances therein. To this complaint an answer was filed, to which the plaintiff replied. Afterwards, over the objection of the defendants, plaintiff was permitted to file an amended complaint, which, in addition to the negligence pleaded in the original complaint, further alleged that the injury was caused by reason of defects in the condition of the ways, works, and machinery connected with and used by defendants in operating the mine, and that their superintendent was incompetent. The amended complaint did not change the cause or character of action. Both were based upon the alleged negligence of the defendants. It does not appear that defendants were prejudiced by the amendment. The granting of leave to amend a complaint, which does not change the cause of action, is within the discretion of the court and, unless it affirmatively appears that this discretion has been abused to the prejudice of the defendant, its action will not be interfered with on review. Cascade Ice Co. v Water Co., 23 Colo. 292, 47 P. 268; Davis v. Johnson, 4 Colo.App. 545, 36 P. 887.

During the progress of the trial a witness on behalf of the plaintiff was being interrogated regarding a track constructed from the mouth of the winze upon which a truck that caused the injury to plaintiff was operated. Over the mouth of the winze trapdoors had been placed, which, when closed, constituted a part of the track. The construction of this track, as well as the way the trapdoors opened, was relied upon by plaintiff to establish the negligence of the defendants. the witness, after being interrogated with respect to his inspection of the track, was asked what, if anything, he observed in regard to it, and in reply answered: 'I observed that the trapdoors were, according to my judgment, put in wrong; that is, that would be my judgment.' The defendants moved to strike this answer upon the ground that it was not responsive, which motion was overruled. The trapdoors were a part of the track, and the way they opened was claimed to be faulty. In these circumstances it cannot be successfully urged that the answer was not responsive to the question. The principal objection now called to our attention is that the answer did not state facts, but the opinion of the witness, which was improper. That objection was not called to the attention of the trial court by the motion made, and cannot be raised for the first time on review.

At the conclusion of the testimony for plaintiff, defendants moved for nonsuit, and at the close of all the evidence for a verdict in their favor. These motions, as now argued, were based substantially upon the following grounds: (1) Plaintiff knew, or should have known, of the defects which he claimed caused his injury; (2) there was a failure of proof that the defendants were negligent; and (3) the proximate cause of the injury was the negligence of a fellow servant. Under the pleadings the issues were the negligence of the defendants, the contributory negligence of the plaintiff, and the negligence of a fellow servant. All these issues, by the verdict returned, were resolved in favor of plaintiff, and the several questions presented by the motions can best be determined by a consideration of the sufficiency of the testimony to sustain the general finding on the issues presented, and the province of the jury in cases of this character.

According to the testimony, plaintiff was engaged in working at the bottom of a winze. From the collar of this shaft a track was constructed along the level in which it was sunk, upon which a truck was operated to move the ore and waste hoisted from the winze to the level. Over the mouth of the winze trapdoors were placed, upon which this track was extended, so that the truck could be run upon the doors when closed. These doors opened parallel with the track. If they had opened crosswise the door next to the stationary track, when open, would have lain across or against the track at right angles. When the bucket used in hoisting from the winze was raised sufficiently high above the level of the doors, they were closed, the truck run on the track thereon, the bucket lowered onto the truck and unfastened from the rope used in hoisting it from the winze. The truck was then pushed along the track to the point where the bucket was taken up by another hoisting apparatus and conveyed to the surface. When the bucket was returned to the truck, the latter was again run upon the trapdoors, the bucket fastened to the rope and elevated sufficiently to clear the truck, when it was pushed from the doors to the stationary track, and the doors opened, so as to permit the bucket to descend into the winze. This track, it is claimed, for a distance of 10 or 12 feet from the mouth of the winze, was constructed on an incline towards the winze. In fact, counsel practically concede that this was the fact. To prevent the truck being precipitated into the shaft when the doors were open, a timber was fastened to a pivot attached to one of the uprights, which it was intended should be dropped across the track near the mouth of the winze, and, when down, it is claimed by some of the witnesses, was sufficient to prevent the truck from being precipitated into the shaft, while others said that it was not, because of its insufficient strength, or because the end not fastened had no support against a pressure towards the shaft. The person engaged in operating the truck had returned with the empty bucket, fastened it to the rope, and as soon as the bucket was clear of the truck, shoved or kicked the latter onto the track and hoisted the trapdoors. Just at this moment an accident happened to the lights, and, without paying any attention to the truck or putting down the bar, he proceeded to attend to the lights, with the result that the truck, by force of gravity on account...