Wells v. Coe

• Decision Date: 26 April 1886
• Citation: 9 Colo. 159,11 P. 50
• Court: Colorado Supreme Court
• Parties: WELLS and others v. COE.

11 P. 50

9 Colo. 159

WELLS and others v. COE.

Supreme Court of Colorado

April 26, 1886

Appeal from district court, Lake county.

This action was brought in the district court by appellee, under section 1031 of the General Statutes. Her husband, Robert H Coe, was employed by appellants upon a certain mine belonging to them in Lake county. While in the discharge of his duties Coe was struck and killed by a bucket used to hoist earth and water, descending in the shaft wherein he was working. The proximate cause of the accident was the breaking of a brake-rod and slackness in a tight belt forming a part of the hoisting apparatus. Appellee averred, and attempted to establish, negligence on the part of defendants in the purchase or in the repairing of the machinery in question. Appellants denied such negligence on their part, and averred and sought to prove, contributory negligence on the part of Coe. The verdict and judgment were for appellee, fixing her damages at the sum of $5,000. The remaining matters necessary to a full understanding to the opinion are stated therein.

Markham, Patterson & Thomas, for appellants, Thomas S. Wells and others.

T A. Dickson and L. B. Wheat, for appellee, Fannie Coe.

HELM J.

Appellee, who was plaintiff below, bases her right to recover in this action upon the ground that the death of her husband was caused by defective machinery or appliances, in the purchase or repairing of which defendants below did not exercise the degree of care required by law. The following legal propositions relating to the subjects of negligence and contributory negligence are deemed pertinent to the case.

First. In the purchase of safe machinery and appliances for use in his business, the master is required to exercise ordinary care and diligence; such care and diligence having reference to the hazards of the employment, and being proportioned to the dangers of the service. If, through the want of ordinary care in this respect, unsafe or defective machinery is procured, and the servant, without fault on his part, is thereby injured, the master is liable. Colorado Cent. R. R.. v. Ogden, 3 Colo. 499; Beach, Neg. § 123.

Second. The master is likewise charged with the further duty of maintaining in suitable condition the machinery and appliances used in his business. In this regard he is also required to exercise ordinary care and diligence, and is liable for injuries resulting from his ordinary negligence to the servant, without fault on the latter's part; the question as to what shall constitute such ordinary care having reference likewise to the danger which the service naturally imposes upon the employe. Hough v. Railway Co., 100 U.S. 213; Beach, Neg. § 124.

Third. Agents charged with the duty of procuring safe machinery, or agents charged with the duty of inspecting and keeping machinery and appliances in suitable repair, are not to be regarded as fellow-servants with those employed to labor in the business wherein such machinery or appliances are used, or, in some cases, even with those engaged to operate the same. The master is liable for injuries resulting, without contributory negligence, to other servants, through the ordinary negligence of his employe or agent thus charged with the duty of procuring or repairing, whether such negligence be in originally failing to purchase safe machinery or appliances, or in failing to keep the same in proper condition for use. Ford v. Fitchburg Ry. Co., 110 Mass. 241; Whart. Neg. § 211, 212. Also Hough v. Ry. Co., supra, and cases cited; Wabash Ry. Co. v. McDaniels, 107 U.S. 454; S.C. 2 S.Ct. 932; Brann v. Chicago, R.I. & P. R. Co., 53 Iowa 595, S.C. 6 N.W. 5, and cases cited; Chicago N.W. Ry. Co. v. Swett, 45 Ill. 197; Shanny v. Androscoggin Mills, 66 Me. 420.

But to the foregoing general doctrines there are some qualifications and exceptions, two of which will be mentioned: ( a) This duty, however, on the part of the master, either in purchasing machinery and appliances, or in keeping the same in suitable condition, does not, as to the employe, amount to a warrant of perfection therein, or a guaranty of absolute safety under all circumstances in the use thereof. Having exercised ordinary care in providing and keeping in repair the machinery used, the master's duty in the premises is discharged and his liability ended. For injuries produced through latent defects not discoverable by inspection, or by the usual and ordinary tests, or through defects which the requisite skill and watchfulness have failed to detect, or foresee and avoid, he is not answerable. See cases supra; Wilson v. Denver, S. P. & P. R. Co., 7 Colo. 104, S.C. 2 P. 1, citing Toledo, P. & W. Ry. Co. v. Conroy, 68 Ill. 567; Mad River & L. E. R. Co. v. Barber, 5 Ohio St. 565; Whart. Neg. § 212; Beach, Neg. §§ 126, 133. ( b) Where injury is suffered by an employe, through defects in the machinery or appliances furnished by his employer and used in the business, if the employe knew, or had means of knowledge equal to those of his employer, concerning such defects, yet continued in the latter's service, he cannot recover: provided no inducement, such as a promise to cure the defect, and thus remove the danger, led him to remain. The means of knowledge possessed by agents in cases covered by the third general rule above named are, of course, those of the principal or employer. Hayden v. Smithville Manuf'g Co., 29 Conn. 548, and cases; McGlynn v. Brodie, 31 Cal. 376, and case cited; Greenleaf v. Illinois Cent. R. Co., 29 Iowa 14; Stone v. Oregon City Manuf'g Co., 4 Or. 52; Mad River & L. E. R. Co. v. Barber, supra; Wright v. New York Cent. R. Co., 25 N.Y. 562; Central R. R. & B. Co. v. Kenney, 58 Ga. 485. See, also, Davis v. Detroit & M. R. Co., 20 Mich. 105; Texas & P. Ry. Co. v. Scott, 64 Tex. 552; Story, Ag. § 453, h; Beach, Neg. § 133. The reason for this exception is self-evident. It, with knowledge, or with means of knowledge equal to his employers, or defects in the machinery, the servant, without remonstrance, voluntarily continues in the service, a waiver of his claim for damages is said to have taken place, or his conduct is regarded as negligence contributing to the resulting injury. It is to be observed, however, that caution should be exercised in applying this rule to defenses where the employe's equal means of knowledge is the ground relied on. The nature of his employment, including his duties and responsibilities; the character of the machinery or appliance in question, and the acquaintance therewith he could reasonably be expected to possess; the proximity and relation of such machinery or appliance to his daily labors; the frequency of his opportunities for observation,--these and other matters, including, of course, the reasonable skill and ability which he guaranties by engaging in the service, may each or all enter into an appropriate consideration of the subject. And the conclusion reached, when this question is presented, must depend largely upon the peculiar facts and circumstances connected with each particular case.

It will be noticed that these propositions of law all recognize the doctrine of contributory negligence. This doctrine, as sanctioned in Colorado, is defined as follows: 'If the plaintiff, or party injured, by the exercise of ordinary care, under the circumstances, might have avoided the consequences of the defendant's negligence, but did not, the case is one of mutual fault, and the law will neither cast all the consequences upon the defendant, nor will it attempt any apportionment thereof. Colorado Cent. R. Co. v. Holmes, 5 Colo. 197; Cooley, Torts, 674. Again, in Colorado Cent. R. Co. v. Martin, 7 Colo. 592, S.C. 4 P. 1118: 'One of the well-known and well-settled principles of the law upon the subject of negligence is that when the plaintiff so far contributed to the disaster by his own neglect, or want of ordinary care and caution, that but for such neglect, or want of care and caution, on his part, the misfortune would not have happened, he is not entitled to recover.'

A brief examination of the record before us, in the light of these legal principles, discloses the fact that at least one error was made by the...