Town of Colorado City v. Liafe

• Decision Date: 17 June 1901
• Parties: TOWN OF COLORADO CITY v. LIAFE.
• Court: Colorado Supreme Court

65 P. 630

28 Colo. 468

TOWN OF COLORADO CITY v. LIAFE.

Supreme Court of Colorado

June 17, 1901

Appeal from district court, El Paso county.

Action by William F. Liafe against the town of Colorado City. From judgment in favor of plaintiff, defendant appeals. Affirmed.

William F. Liafe was employed by the street commissioner of Colorado City to work in a gravel pit as an ordinary laborer, and while so employed the gravel bank caved in and fell upon him injuring him to such an extent that he was compelled to have his left leg amputated just below the knee. In the complaint the plaintiff charges that his injury was due to the negligence of the officers of the town; that the officers knew that the gravel bank was in a dangerous condition, and knew that the plaintiff was not aware of its danagerous condition; and that said officers negligently failed to notify plaintiff of the dangerous condition of the bank, but ordered him to go to work at the place where the injury occurred. The defendant denies generally the allegations of the complaint, and, for a second defense, alleges, in substance, that the injuries to the said plaintiff were not due or owing to or caused by negligence on the part of the defendant, but were due to and caused by negligence on the part of the plaintiff, and that 'without such negligence on the part of the plaintiff the said injuries would not have happened'; and, for a further defense, that on the 9th of December, 1897, the plaintiff, in consideration of the payment by the town of Colorado City of certain charges for surgical and medical treatment, and for his care at a hospital, executed a formal, written release of the town and of its officers from all damages on account of the injuries received by him on the 8th of December, 1897,--being the injuries complained of in this suit. The replication puts in issue the second defense of the answer, and alleges further that the said agreement was signed by Liafe while he was under the influence of drugs, opiates, and medicines administered to him for the purpose of allaying pain, and while he was incapacitated from attending to business and was ignorant of the contents of said agreement. Upon the trial W. H. Watson was permitted, over the objection of the defendant, to testify to a conversation alleged to have occurred between the street commissioner and a man named Wilcox, in the absence of Liafe, in reference to the existence of a crack in the gravel bank above the place where Liafe afterwards worked. The testimony, in substance, was as follows: 'I know Wilcox by sight. I saw him there at the bank that morning. He went down street, and then came back. Q. What did he say when he came back to the bank? A. He told them to hand him up a shovel, and he would knock the bank down. Q. State all that he said. A. He said that if they would hand him a shovel he would knock the bank down, and he said there was a crack about an inch wide on top. Q. What did Mr. Kinsman say? A. Mr. Kinsman said for him to come down and drive his team in and load it up, so as to get the wagon out and then knock it down.' The witness Watson did not see a crack in the bank, and there is no testimony showing the existence of the crack in the bank; and the witness Kinsman who was the street commissioner, denied having had any such conversation with Watson. A witness (Harry High) testified that he was a city teamster, and was in the employment of the town, and was working at the gravel pit, at the time of the accident. The plaintiff testified that he was employed on the morning of the 8th of December, 1897, the day of the accident, by Kinsman, the street commissioner, to work in and about the gravel pit in question; that when he went to the place he was directed by the street commissioner to commence the shoveling of gravel; that within a very few minutes after he commenced to work there was a cave-in, and a large quantity of dirt fell upon him; and that, as the result of the accident, he was compelled to have his left leg amputated just below the knee. The trial resulted in a verdict for the plaintiff in the sum of $20,000. Upon motion for new trial, the plaintiff, upon the statement by the judge of the court that, unless the sum of $15,000 was remitted, a new trial would be granted, remitted the sum of $15,000. The motion for new trial was overruled, judgment was rendered in favor of the plaintiff for the sum of $5,000, and the defendant appeals to this court. Cross errors are assigned by the plaintiff upon the action of the court in requiring that the sum of $15,000 be remitted.

John W. Sleeper and John R. Watt, for appellant.

J. K. Vanatta and Murat Masterson, for appellee.

STEELE, J. (after stating the facts).

There are 12 assignments of error; the assignments principally discussed being those relating to the admission of the conversation as testified to by the witness Watson, and the giving and refusal of certain instructions. Misconduct of the attorney for the plaintiff in his address to the jury is alleged as a ground for reversal, and an affidavit concerning the alleged misconduct appears in the record; but the record...