Vindicator Consol. Gold Mining Co. v. Firstbrook

• Decision Date: 04 June 1906
• Citation: 36 Colo. 498,86 P. 313
• Parties: VINDICATOR CONSOL. GOLD MIN. CO. v. FIRSTBROOK.
• Court: Colorado Supreme Court

86 P. 313

36 Colo. 498

VINDICATOR CONSOL. GOLD MIN. CO. v. FIRSTBROOK.

Supreme Court of Colorado, En Banc.

June 4, 1906

Rehearing Denied July 2, 1906.

Appeal from District Court, Teller County; William P. Seeds, Judge.

Action by Kate Firstbrook against the Vindicator Consolidated Gold Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thomas Bryant & Lee, Milton Smith, and Chas. R Brock, for appellant.

James J. McFeely (John M. Waldron, of counsel), for appellee.

GABBERT C.J.

Appellee as plaintiff, commenced an action against the appellant, as defendant, to recover damages for the death of her husband, resulting from injuries sustained by falling down the shaft of a mine owned and operated by the defendant, in which he was employed. The jury returned a verdict for the plaintiff. From a judgment thereon the defendant appeals.

We shall consider the errors assigned by the defendant in the order presented by its counsel. The facts upon which these errors are based will be stated in connection with the questions considered and determined.

1. In examining the jurors on their voir dire, counsel for plaintiff was permitted, over the objection of the defendant, to ask them whether or not they were interested, as agent, or otherwise, or ever had been interested, in the Frankfort Marine Accident & Plate Glass Insurance Company. In the selection of jurors counsel are allowed considerable latitude, not only for the purpose of ascertaining whether grounds exist for challenges for cause, but, also, for the purpose of intelligently exercising peremptory challenges. Such questions are for the purpose of eliciting from and not inmparting information to, the jurors. They are not barred, however, though directed to matters not in issue, provided it appears they are pertinent, are made in good faith, and for the purpose of excluding from the panel partial or prejudiced persons, or who, by reason of interest in the result, would be incompetent. U. P. Ry. Co. v. Jones, 21 Colo. 341, 40 P. 891; Swift & Co. v. Platte (Kan.) 72 P. 271. The fact that the defendant may have been insured in the company named against loss resulting from the death of an employé was not an issue; nor would such insurance affect its liability to the plaintiff; but where, as in this instance, the inquiry of the jurors was limited to their interest in the insurance company named, and nothing more, it was not error to allow such inquiry as would develop their interest in the result of any judgment which might be obtained by the plaintiff any more than any other which might show such an interest in the result of the action as to render them incompetent as jurors. In announcing this rule, we must not be understood as departing in the slightest degree from the salutary one announced in Coe v. Van Why, 33 Colo. 315, 80 P. 894, where it appeared that the statement of counsel in argument that the defendant was insured in an employer's liability company was made for the purpose or prejudicing and influencing the jury in favor of the plaintiff, and not to elicit information touching their competency to sit as jurors in the case. In this connection, it is also urged that the court erred in permitting counsel for plaintiff to bring out, on cross-examination of the witness, Brooks, the fact that whatever judgment should be rendered against the defendant would have to be paid by the insurance company. The defendant had pleaded a release. The witness was offered to prove its execution by the plaintiff. It appears that he was not employed by the defendant, to secure this release; but, in doing so, was acting as the agent of the insurance company. There was a conflict in the testimony with respect to the circumstances under which this release was obtained, and it was competent for the plaintiff to bring to the attention of the jury the interest which the witness, by virtue of his relation to the insurance company, had in securing the release, as well as in the result of the action. Matters brought out on cross-examination, which are legitimate for the purpose of enabling the jury to determine the credibility of a witness, are not objectionable, although they may relate to questions not in issue in the case.

2. The complaint contained two counts. The first alleged that the injury which caused the death of plaintiff's husband resulted from the negligence of the defendant in failing to furnish the deceased with a safe place in which to work. The second count was based on the co-employé act, found in Sess. Laws 1901, at page 161, and alleged that the death of the husband was caused by the negligence of a co-employé. At the conclusion of the introduction of testimony on the part of the plaintiff, the defendant moved to compel her to elect upon which count she would rely for recovery. This motion was denied, and the defendant assigns error on the ruling. Section 49 of our Code requires that the complaint shall contain 'a statement of the facts constituting the cause of action in ordinary and concise language, without unnecessary repetition.' Under provisions of this character the tendency of the courts is to restrict within the narrowest limits possible the right of a plaintiff to state a cause of action in more than one count. The plaintiff had but one cause of action. The liability of the defendant was based either upon its negligence, or the negligence of a fellow servant of the deceased in the employ of the defendant. The two counts were not inconsistent in a legal sense. They state different grounds of liability for the same ultimate act, from which different legal reasons, dependent upon the proofs, could be deduced why the defendant might be liable in damages for the death of the plaintiff's husband. Whether the proximate cause of his death was the negligence of the defendant, or the negligence of a fellow servant, depended upon developments at the trial. If plaintiff had relied upon the negligence of the former, and the proofs established that her right of action, if any, depended upon the negligence of a fellow servant under the act in question, she must necessarily have suffered a nonsuit, unless permitted to amend her complaint; a question, however, upon which we express no opinion. It must therefore follow that, notwithstanding the provision of our Code, a plaintiff may state a cause of action, growing out of the same transaction, in more than one count when it appears that such pleading may be necessary to meet the possible proofs which will, for the first time, fully appear at the trial. Cramer v. Oppenstein, 16 Colo. 504, 27 P. 716; Leonard v. Roberts, 20 Colo. 88, 36 P. 880; Manders v. Craft, 3 Colo.App. 236, 32 P. 836; Beauregard v. Webb Granite, etc., Co., 160 Mass. 201, 35 N.E. 555; Brinkman v. Hunter, 73 Mo. 172, 39 Am.Rep. 492; Pomeroy's Rem. & Rem. Rights, § 576; Bliss' Code Pleadings, §§ 119, 120. Tested by this rule, it is apparent that the court did not err in overruling the motion of the defendant to require the plaintiff to elect upon which count she would stand, because, having the right to plead her cause of action in two counts, she had the right to submit to the jury for their determination which count was established, subject, of course, to such control of the court as might be proper upon the evidence.

3. Over the objection of the defendant the court permitted witnesses on the part of the plaintiff to testify that the rails guarding the entrance to the shaft down which the husband of plaintiff fell were constructed or arranged differently from those intended to serve the same purpose in other mines in the vicinity. This is assigned as error upon the ground that proof of a custom or usage cannot be shown to establish negligence. In the circumstances of this case it is not necessary to pass upon the proposition raised by this assignment of error. According to the undisputed testimony it appears that the injury to the deceased was caused by the negligence of a co-employé unless it appeared that deceased was guilty of contributory negligence. The deceased and several others had congregated near the shaft in a level waiting for the cage to be lowered to elevate them to the surfance. The cage at this time was suspended in the shaft several feet above the level in which they were standing. These rails were intended to guard the entrance to the shaft, and were so constructed that raising one raised the other on the opposite side of the shaft. A co-employé on the opposite side of the shaft from which the deceased was standing, who must have known that the deceased was at this point, and with full knowledge of the manner the guard rails were constructed, raised them before the cage had descended to the level in which the deceased and his co-employés were standing, thus leaving the entrance to the shaft wholly unprotected. It was not necessary to raise the guard rails until the cage had landed, nor was it customary to do so These facts were established by undisputed testimony, and from them there can be but one conclusion, viz., that it was culpable and inexcusable negligence for the employé to raise the guard rails at the time he did, so that it was wholly immaterial whether the defendant was negligent as charged in the first count or not. The important question for the jury to determine was whether or not the deceased was guilty of contributory negligence, and therefore the reception of the testimony of which the defendant complains was not prejudicial. The reception of incompetent testimony which it affirmatively appears did not prejudice the party objecting thereto does not constitute reversible error. Mr. Justice Campbell concurs in the conclusion, that if the...