Carleton Mining & Milling Co. v. Ryan

Mr. Justice Gabbert delivered the opinion of the court. This action was commenced by appellee to recover of appellant damages resulting from the death of her son, caused by the alleged negligence of the company. The latter denied that it was guilty of negligence, and contended that the death of the son was the result of his own negligence and that of his fellow servants. From a judgment in favor of plaintiff, he defendant appeals. — 403 — Deceased was killed by a stull falling down a shaft, in which he was employed by the company. The vital proposition involved, as presented by the assignment of errors, argued by counsel for appellant, is, whether or not the testimony tends to establish that neglect to properly secure this stull was negligence for which the company is responsible. The complaint was framed and the cause tried by plaintiff upon the theory that the defendant was guilty of negligence in failing to provide a reasonably safe place for deceased to work in, while the defendant contends that the failure to secure the stull was the neglect of the deceased, or that of his fellow servants. In order to determine these questions, it is necessary to briefly review the evidence bearing on the issue of negligence, as made by the pleadings, not, however, for the purpose of determining the facts from conflicting testimony, but to ascertain if there is evidence tending to prove that the proximate cause of the death of the son was negligence for which the company is responsible, or conclusive on the question of contributory negligence on the part of the deceased, which would bar a recovery. The company was engaged in sinking a shaft, and it became necessary to extend the water pipe connected with the pump used in keeping the shaft clear of water. For this purpose deceased asssited in placing two stulls some distance from the bottom of the shaft the purpose of which was to support the proposed extension of pipe. One stull was securely fastened, and the other not. As to what occurred when the work reached this stage, the evidence is in some respects conflicting. There is testimony to the effect that the principal timberman who was assisting, or had charge, sent one of the parties engaged in the — 404 — work to the pumpman, to ascertain how far apart the stuMs should be placed; that the latter replied that one stull could not be permanently fastened until the pápe was put in; that the timberman then left, cautioning deceased and a co-employee who was assisting “to be sure and nail the stull when they got their pipes down through.” From this time it does not appear that the timberman had anything further to do with the work in question. Immediately after he left, deceased and others went to work under the direction of the pumpman, to put in the pipe. When this was completed, inquiry was made of the pumpman if the unsecured stull should not be nailed, to which he replied, in substance, that he would do so, and on being told by the party making this inquiry, that he would not go down in the shaft unless it was nailed, stated that .he would attend to it. The pump-man denies making any such promise. This conversation, it is said, occurred in the presence and hearing of the deceased. The foreman of the company testified that putting down the pipe was part of the pumpman’s duty, and that this work was under his supervision. Three days after the pipe had been put in place, the water having been pumped out in the meantime, deceased and others went to the bottom of the shaft, and in moving the pump, dislodged the unsecured stull, which fell and killed him. Asa matter of fact, the stull never was nailed, nor do we understand it is contended that it was otherwise properly secured. The material and simple question of fact was, whether the fall of the stull was the result of the negligence of deceased and those who immediately assisted him in placing it, or the negligence of the pumpman. If by the former, there could be no recovery; if by the latter, then the proposition pre — 405 — sented is, does the testimony tend to establish a state of facts from which it can be inferred in law that the relationship of the pumpman to the company was such, that his alleged declaration that he would secure the stull, render the company liable for- his failure to do so? As applied to the conditions proper to consider in this case the law is, that an employer is required to exercise ordinary care in providing a reasonably safe place for his employees to work in. The employee to whom he delegates the performance of work which necessarily involves this duty, becomes his representative, and negligence in the performance of such work by such employee is the negligence of the employer, as to other employees engaged in different work in another place, which the employer is required to make reasonably safe. Grant v. Varney, 21 Colo., 329; D. & R. G. R. R. Co. v. Sipes, 23 Colo. 226; D. & R. G. R. R. Co. v. Sipes, 26 Colo., 17. Thus tested, it was the duty of the company to exercise ordinary care in rendering the shaft reasonably safe for the performance of the work in which deceased was engaged when killed. If it delegated to the pumpman the supervision of putting down the pipeline, and he had control of this work, he would not, in its performance be a co-employee or co-ser vant with others working in the bottom of the shaft in the legal sense of these terms, and negligence upon his part in doing this work, which was the proximate cause of the son’s death would be the negligence of the company. In other words—in such circumstances, the pumpman, as the representative of the company, would have supervision and control of the placing of a timber which, if not properly secured, would render the shaft dangerous to those working — 406 — at the bottom. In placing such timber he was bound to exercise ordinary care in making it secure, and his negligence in not doing so, if that was the proximate cause of the son’s death would be negligence for which the company must answer. The next question to determine is, whether or not the deceased was guilty of negligence which will bar a recovery. If deceased and his co-employes (omitting, of course, the pumpman) were alone responsible for the condition in which the stull was left, then plaintiff could not recover, because the results following were caused by their own negligence. Deceased knew that the stull had been left unsecured. According to the testimony, however, he was advised that it would be nailed by the pumpman. Three days elapsed between the time when this promise was made and the date when the accident occurred, if, therefore, the promise to nail the stull was made by the pumpman, as claimed, and he was charged with the supervision of putting in the pipeline, deceased would certainly have a right to rely upon the promise that the stull would not be left unfastened. There is no evidence which tends to show that he had any reason to believe that this promise had not been fulfilled. If, on the other hand, he and those assisting him were told by the timberman to secure the stull, and, without any intervention on the part of the pumpman, left it unsecured, then he and his co-employees were guilty of such . negligence as would preclude a recovery in this case. Thus it appears from a discussion of the legal propositions bearing on the issues of negligence made by the pleadings, in connection with the testimony, that there is evidence tending to prove culpable negligence on the part of the company, and the absence — 407 — of contributory negligence on the part of the deceased. Of course, it will be understood by counsel, from what we have already stated., that we express no opinion as to what the testimony does, in fact, establish, on the issues of negligence, our purpose being merely to ascertain if the testimony sustains the verdict, if the jury was properly instructed. ' Thus far the conclusions announced on the propositions considered are in harmony with similar ones discussed and determined in the original opinion. The only remaining question we shall determine relates to an instruction given by the court, which reads as follows: “The jury is instructed that the. rule which obtains in the state of Colorado is, that for the acts of the vice-principal done within the scope of his employment, and such as properly devolve upon the master in his general duty to his servants, the master is liable; while for all such acts as relate to the common employment which are on a level with the acts ©f the fellow-laborer, except such acts as are done by the vice-principal against the reasonable objection of the injured servant, the master is responsible. In other words—the test of the liability is the character of the act, rather than the relative rank of the servant.” To this instruction an exception was noted as follows: “Defendant then and there, and at the time, duly excepted to the court’s giving the foregoing instruction to the jury, and to the giving of each paragraph thereof.” There is no question but what the instruction above quoted is erroneous, in that it omits the word ‘not” before the word “responsible,” In the origi — 408 — nal opinion it was thought that the exception to this instruction was insufficient to raise the question of the incorrectness of the instruction on account of the omission of the word “not,” mainly because it might be said that the omission was an inadvertence. Upon further reflection, we are satisfied that the views then expressed on this subject are incorrect. Exceptions of the import of that taken to this instruction have bren recognized by an unbroken line of decisions of this court to be sufficient. The distinction between an exception which goes to an entire charge, and one which is directed to a specific instruction, must not be lost sight of. If the exceptions to instructions are so taken that they direct the attention of the court specifically to the proposition of law challenged, then the correctness of the instruction thus pointed out may be determined. In other words —the office of an exception is to point out specifically the proposition of law in the instruction which, it is claimed, is incorrect. It is for this reason that in numerous cases it has been held, that where an exception or exceptions were only directed to an entire charge, a part of which is correct, they are insufficient, because they fail to specifically point out that part of the charge which, it is claimed, is incorrect. Such, however, is not the case with this instruction; It contained, on the whole, but one distinct proposition of law which is not correctly stated. It has never been held by this court that the reasons why an instruction is incorrect must appear in the exception thereto. Therefore, because the exception fails to note the omission of the word “not” as' the basis of the exception, is immaterial. True, as argued, the omission of this word is all that can be successfully urged against the instruction, but that renders — 409 — it as radically wrong on the proposition of law attempted to be stated as it is possible to express it. Correctly stated, it would present the very essence of the law controlling this case; incorrectly stated it was fatally misleading to the prejudice of defendant. The jury was bound to take the law as stated by the court. It would have no right to supply a word which would result in declaring the law exactly the opposite of that stated in the instruction as given. Hence, it cannot be said that the omission was a mere clerical misprision, or inadvertence of that character that the jury, in examiningthe instruction, would detect the mistake and supply the omitted word, or would have the right to do so. Nor can we say in this instance, the error is so patent that it will be presumed the attention of the trial court was not called to it. We must presume that counsel direct the attention of the court to the alleged errors in an instruction to which an exception is taken, and we cannot establish a rule of' practice which would measure the sufficiency of an exception by the test of whether the error to which it is directed is manifest or not. Such a regulation would require this court to exercise an arbitrary judgment in passing upon instructions to which exceptions have been preserved without a guide which would serve as a uniform rule. Other questions are discussed in the briefs of counsel as well as in the original opinion, which we do not deem it necessary to determine at this time. The original opinion is withdrawn, the judgment of the district cou"t is reversed, and the cause remanded for a new trial. Reversed and remanded,