Thomas v. People

Citation2 Colo.App. 513,31 P. 349
PartiesTHOMAS v. PEOPLE.
Decision Date24 October 1892
CourtCourt of Appeals of Colorado

Error to criminal court of Arapahoe county; WILBUR F. STONE, Judge.

D.G Thomas was convicted on a joint indictment with two others of the killing of four men, whose death was caused by the caving in of an excavation in which they were at work, and brings error. Reversed.

T.M Patterson and C.S. Thomas, for plaintiff in error.

Joseph H. Maupin, Atty. Gen., for the People.

BISSELL J.

D.G Thomas was jointly indicted with Fay and O'Hara for the killing of four men in December, 1888. It is now quite universally conceded that there may be a criminal responsibility for the grossly negligent performance of a lawful act. Law writers and jurists agree as to what must be disclosed by the proof in order to hold an individual criminally liable for the death of another, when, aside from considerations of negligence, the act would otherwise be lawful. When the defendant is accused because of his neglect to do a particular thing, the duty must be a plain one requiring no discussion to establish its obligatory force and concerning it there must be a general consensus of opinion. It is likewise essential that the party charged must be obligated to do what he omitted to perform by the terms of some contract by which he is bound, or the law must have cast on him the obligation of performance. U.S. v. Knowles, 4 Sawy. 517; Reg. v. Hughes, 7 Cox, Crim.Cas. 301; Rex v. Allen, 7 Car. & P. 153, 155, 32 E.C.L. 548; Rex v. Green, 7 Car. & P. 156, 32 E.C.L. 549; 2 Whart.Crim.Law, § 1002; Cooley, Torts, p. 84. Manifestly the proper resolution of the present inquiry mainly depends on an accurate ascertainment of what Thomas was bound to do, the extent of that obligation, and what negligence, if any, was exhibited in his acts. In December, 1888, the Denver Gas Company, a corporation operating in the city of Denver, was engaged in relaying its pipes along Fifteenth street. Before this company commenced its work, the Denver Tramway Company, which was also a corporation operating in the city of Denver, had constructed a line of cable railway along that street. This cable road had been built in the ordinary way. The slot line through which the grip runs, and the surface rails along which the wheels move, rested on iron yokes, bedded in cement, with the ususal sewer pipes and drip boxes connected. Above the cement bed in which the yokes rested, and which was the basis of the structure, the course of the road had been filled with earth to the surface, and it was paved between the rails. This structure covered the gas main as it was laid beneath the surface for a portion of its general circumference. The gas main was from one to two feet below the bottom of the cement bed. To overcome the difficulties readily apparent from this situation, the gas company commenced to move the pipe, and to place it outside of the line of the railway, presumably for the purposes of safety and convenient repair. It is not apparent from the testimony whether the plan adopted for the change was determined on by the governing board of the corporation, or whether it was left entirely to the superintendent and managing engineer, Fay, who was a codefendant. Whichever is true, this fact remains: that the execution of the plan and the mode of doing the work were left to his sole determination, and were executed directly under his orders. Thomas had nothing whatsoever to do in any of these particulars. The removal of the pipes was accomplished substantially in this wise: A long trench, some 2 1/2 feet wide, was dug along the line of the railway, and outside of a perpendicular produced by a line running at right angles with the surface of the tracks to the required depth. The work had been done for quite a long distance on Fifteenth street without misadventure or mishap. At the time of the act which is charged to have been a felonious killing, a trench of this description had been run between Tremont street and Court place, on Fifteenth street, for a distance of probably 150 feet. As is usual in such cases, the work was done by a large gang of men, distributed along the line, who worked in sections of from 8 to 10 feet, as they might happen to lay out their own work; each man taking about the same amount. The trench was not of uniform depth. It was quite superficial at one end, and at the other it varied from 4 to 5 1/2 feet. The...

To continue reading

Request your trial
2 cases
  • State v. Smith
    • United States
    • Idaho Supreme Court
    • February 7, 1914
    ... ... accordance with secs. 7677, 7678, and 7679, Rev. Codes ... (State v. Sly, 11 Idaho 110, 80 P. 1125; People ... v. King, 27 Cal. 507, 87 Am. Dec. 95; People v ... Cronin, 34 Cal. 191; People v. Walters, 1 Idaho ... 271; Territory v. Evans, 2 Idaho 425, ... R. A. 277; People ... v. Beardsley, 150 Mich. 206, 121 Am. St. 617, 113 N.W ... 1128, 13 Ann. Cas. 39, 13 L. R. A., N. S., 1020; Thomas v ... People, 2 Colo. App. 513, 31 P. 349.) ... J. H ... Peterson, Attorney General, J. J. Guheen and T. C. Coffin, ... Assistants to ... ...
  • State v. Brace
    • United States
    • Idaho Supreme Court
    • July 17, 1930
    ... ... circumstances." (45 C. J. 1371, sec. 951; Sullivan ... v. State, 21 Okla. Crim. 410, 209 P. 181; People v ... Rosenheimer, 209 N.Y. 115, Ann. Cas. 1915A, 161, 102 ... N.E. 530, 46 L. R. A., N. S., 977, at 981; People v ... Seiler, 57 Cal App. 195, 207 P. 396; Thomas v ... People, 2 Colo. App. 513, 31 P. 349; Brimhall v ... State, 31 Ariz. 522, 53 A. L. R. 231, 255 P. 165; ... People v. Adams, 289 Ill. 339, ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT