Town of Colorado v. Liafe

Mr. Justice Steele delivered the opinion of the court. There are twelve 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 does not show that the court’s attention was directed to the alleged misconduct, and we will not consider the assignment. It sufficiently appears from the record in the case that the street commissioner, who, under the ordinance of the town of Colorado City, has control of the city teams, was engaged in hauling gravel from the pit in question for the improvement and repair of the town property. The plaintiff was employed by the street commissioner as such, and at the time of the accident was working for the town; and the town is liable to the plaintiff for damages which he may have sustained by reason of the negligent act of the officer of the town while engaged in performing the duties of his office. The defendant contends that is was not within the power of the street commissioner, without express direction from the board of trustees of the town, to excavate in this gravel-pit, even for the purpose of obtaining gravel to repair the streets; but we cannot agree with counsel, and we are satisfied that it was not essential that, there should be express authority from the town board to work the gravel-pit in question, because the right and authority to obtain the dirt and gravel necessary for the repair of the streets are implied from the power given to the street commissioner “to superintend and direct the working of all teams in the employe of the town,” ás well as “under the direction of the town board, to take the general care and supervision of all streets, highways and ditches within the corporate limits of the town, and to direct and make such repairs and improvements as he may [474] deem necessary and as the Board may from time to time direct.’* The plaintiff assigns as error the admission of the record of the appointment of the street commissioner; and under this assignment attacks the sufficiency of the complaint, and says that the allegation in the complaint, “that the officers of said town were careless and negligent of their duty toward the plaintiff, and carelessly and negligently failed to notify plaintiff of said dangerous condition, but, on the contrary, ordered him to go to work at a place where he was so injured as aforesaid,” does not state a cause of action. And, by way of argument, says that the complaint should have stated which particular officer of the town was so negligent, and that an allegation that the plaintiff was employed by the proper officers of the town is not an allegation that he was employed by the town. The complaint, perhaps, should have been more specific. It should, perhaps, have stated that the plaintiff was employed by the street commissioner of the town, and that he was employed to work for the town; but we are satisfied that the defendant, by answering over, has waived the right to question the sufficiency of the complaint, and has supplied by its answer the defects in the complaint. The. conversation between Wilcox and Kinsman, the street commissioner, was properly admitted. Wilcox’s statement to the street commissioner was notice to him that the bank was in a dangerous condition; and upon being notified, it was the street commissioner’s duty to Liafe (who did not hear the conversation, and did not know of the condition of the bank) to inform him of the facts as stated by Wilcox. It was also his duty to make an inspection of the bank, and if it had cracked and was dangerous, to protect the workmen. The testimony shows that within a few moments after, the conversation with Wilcox, Liafe came to the bank, and was directed by Kinsman to -commence work. The testimony is conflicting as to whether Kinsman directed Liafe to work in a particular place or Liafe selected the place himself. In either event, Kinsman’s duty to Liafe was to put him in pos [475] session of all the facts within his knowledge which affected the safety of the place Liafe was working in. Kinsman did not notify Liafe that Wilcox had told him there was a crack in the bank on the surface, nor did he make an inspection of the bank. Kinsman testified that there was a constant sliding of the gravel down the face of the bank when the workmen dug under it, but that when the dirt fell which injured Liafe there was an unusually large amount of dirt and gravel came down; so that the jury was warranted in finding that the bank was in a dangerous condition when Liafe commenced work, and that Kinsman had. knowledge of it. We have not been advised by counsel, in argument, of the error committed by the court in refusing to give the instructions offered, and we must decline, therefore, to consider these assignments. The charge given by the court was a general one, and at the close of the charge, the defendant made a general objection to the charge and took an exception, but did not point out to the court any specific error in the instructions. This court has repeatedly held that under such circumstances exceptions will not be considered. The cross errors, we think, are not tenable. The plaintiff voluntarily remitted $15,000. It was not the less voluntary because the court declined to allow the verdict of $20,000 to stand, and intimated that unless there was a remitment he would grant a new trial; because the plaintiff had the alternative of submitting to a new trial or accepting a verdict for the sum of $5,000, and having accepted a verdict for the sum of $5,000, we think he cannot now complain that the court refused to enter judgment upon the verdict as rendered. The material facts necessary for recovery were, under the instructions of the court, found in favor of the plaintiff, — that the plaintiff was employed by the town of Colorado City to work in the gravel-pit; that the town had knowledge, through its street [476] commissioner, that the place where the plaintiff was directed to work was a dangerous place; that the plaintiff did not have knowledge that the place was dangerous, and that he went to work without such knowledge, under the direction of the street commissioner; that while so employed he was injured; that the injury was caused by the negligence of the officers of the town. And, there being a conflict in the testimony, we cannot disturb the verdict. The court properly instructed the jury in reference to the release ; and the jury found that the plaintiff did not, at the time of the signing of the release, comprehend what he was doing, and that, because of the effect of the accident as well as of the drugs which had been administered to him, his mind was not in such condition as to properly understand that he was making a settlement with the town for and on account of damages. Counsel claim that before Liafe was entitled to commence a suit for damages against the town, he shouldhavepaidbacktothe town the money expended by the town for his care and medical services. Without passing upon the question whether or not in cases of this character it is necessary, as a condition precedent to the commencement of the suit, that money paid- for and on account of the release should be refunded, in this case no money was received by Liafe, and he only accepted the services of a physician and treatment at a hospital, at the instance of the town, and we do not believe that it was necessary under such circumstances for Liafe to have ascertained the amount, if any, paid by the town to third persons in his behalf, and to have refunded it to the town before the commencement of the suit. The jury were instructed by the court, in rendering their verdict, to give the town credit for any sum shown to have been paid by the town for the benefit of Liafe under the terms of the release. We think this instruction was proper under,the circumstances of this case. We perceive no error in the record which would warrant us in disturbing the verdict of the jury, and the judgment is therefore affirmed. Affirmed.