Monarch Mining & Development Co. v. DeVoe

Mr. Justice Maxwell delivered the opinion of the court: Defendant in error, 31 years of age, having had about 4 years’ experience as a miner, was employed by plaintiff in error as a trammer at the Caledonia mine in the Cripple Creek mining district. The mine workings in which he was employed consisted of a shaft 220 feet deep, from the bottom of which a drift was driven. The shaft was timbered with, square sets of timbers. The first 100 feet were tightly lined; the second 100 feet were lined so as to partially cover the sides; the last 20 feet were wholly unlined. It was defendant in error’s duty to take the empty buckets from the hoisting cable in the shaft, place them on a truck, run them to the breast of the drift, load them, tram the loaded buckets to the shaft, and attach them to the cable. In taking an empty bucket from the cable it was necessary for him to take hold of it by the rim to settle it squarely on the truck. While in the performance of this duty, his right hand resting on the rim of the bucket, a falling rock struck his hand, injuring three fingers so as to necessitate amputation of the two middle fingers. — 273 — This suit is to recover damages for the injury occasioned thereby. At the close of plaintiff’s testimony, defendant, plaintiff in error here, moved a directed verdict which was denied. The errors assigned and discussed are based upon this ruling. The negligence charged was the failure to properly timber the shaft. The defense was, contributory negligence and assumed risk. The doctrine of assumed risk by an employee is settled in this jurisdiction. As applicable to the facts in this case it is thus stated in Denver Tramway Co. v. Nesbit, 22 Colo. 408, 411: “An-employee assumes all the risks naturally and reasonably incident to the service in which he engages, and those arising from defects or imperfections in the thing about which he is employed that are open and obvious, or that would have been known to him had he exercised ordinary diligence. By voluntarily continuing’ in the service with knowledge, or means of knowledge equal to his employer’s, of any defect in the appliances or the machinery used, and ivithout objection, or promise on the part, of the employer to remedy the defect, the employee assumes all the consequences that result from such defeet, and waives the right to recover for injuries caused thereby. ” ♦ See also Wells v. Coe, 9 Colo. 159; Iowa G. M. Co. v. Diefenthaler, 32 Colo. 391; Harvey v. Mountain Pride G. M. Co., 18 Colo. App. 234; Dickson v. Newhouse et al., 34 Colo. 228. ' All the authorities recognize an exception to the above rule, which exception is recognized by this court in the italicized portion of the foregoing quotation. — 274 — See also Colo. Cent. R. R. Co. v. Ogden, 3 Colo. 499; B. & C. R. R. Co. v. Lieke, 17 Colo. 280; C. F. & I. Co. v. Cummins, 8 Colo. App. 541. ■ Hough v. Railway Co., 100 U. S. 224 — a leading case — was an action by the representatives of a locomotive engineer against the railroad company. The negligence complained of and to -which was attributed the death of the engineer, was the defective condition of the pilot of the engine, of which the engineer had given notice to the proper officers of the company, and they promised that it should be remedied. Justice Harlan, in the course of the opinion, quoted with approval Shearman & Bedfield on Negligence, §96: “But there can be no doubt that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept.” Citing cases, and also the following from Cooley on Torts, 559: “If .the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary. care unless or until he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant by continuing the employment engages to assume the risks. ’ ’ In Indianapolis, etc., Ry. Co. v. Watson, 114 Ind. 20, 27, cited by-plaintiff in error, Judge Elliott states the rule and the exception as follows: — 275 — “The rule, which we regard as sound in principle, and supported by authority, may be thus expressed: The employee who continues in the service of his employer, after notice of a defect augmenting the danger of the service, assumes the risk as increased by the defect, unless the master, expressly or impliedly, promises to remedy the defect. ’ ’ And again at pag'e 32:. “Where there is a promise to repair which induces the employee to continue in the service, then, doubtless, he may, for a reasonable length of time, rely on the promise and continue in the service, unless the danger of continuance, without a removal of the cause 'of it, is so great that a reasonably prudent man would not assume it.” See also Conroy v. Vulcan Iron Works Co., 62 Mo. 35; Mfg. Co. v. Morrisey, 40 Ohio St. 148; Mo. Furnace Co. v. Abend, 107 Ill. 44, and Colorado eases above cited. Here, the plaintiff testified, that a few days preceding the accident he noticed that the unlined portion of the shaft, about 15 feet from the bottom, had a somewhat shattered and broken appearance; that it looked dangerous; that two days befoie the accident, he told the defendant’s superintendent that the shaft was not safe, and said: “Don’t you think it ought to be lined clear down?” The superintendent replied: “Yes, and I am going to do it at once. ’’ ‘ ‘ I am going to do it right away, ’ ’ that he continued to work in. the shaft relying upon this promise; that at the time the injury was received he had not abandoned the expectation that the promise would be kept. We think this promise of the employer brought the plaintiff within the exception to the rule above stated. — 276 — It is contended by plaintiff in error, that plaintiff’s testimony disclosed that the danger was so great, continuous and imminent that plaintiff’s continuance in the employment with knowledge of such danger was, per se, such contributory negligence as would prevent a recovery, and that where such imminent danger exists, there is no such thing as a reasonable time to repair,. other than presently and before the work proceeds further.' The plaintiff testified, in substance, upon this point, that the shaft looked as though it was dangerous; “it had a somewhat shattered appearance”; he “did not consider it real safe”; that he had worked there 13 shifts preceding the accident and no rock had fallen; that 8 or 9 more experienced men than himself were using the shaft; that he did not expect it to fall untij. the superintendent would have time to timber it; that it did not look as though the whole shaft would cave in; that while it looked as though rock could fall at any time, it did not look as though it would fall. The motion for a directed verdict admits the truth of plaintiff’s evidence and every legitimate inference which might be drawn from it. It is only when the facts are undisputed, as they are in this case, and are such that reasonable, intelligent men can fairly draw but one conclusion therefrom, that the question of negligence or contributory negligence is ever considered one of law for the court. There have been repeated decisions by the courts of this state, as to when, in cases of this character, a court is warranted in granting a nonsuit or directing a verdict at the close of plaintiff’s case. The rule here established is, in substance, that the court must not invade the province of the jury, except in the clearest of cases, and will not grant a — 277 — nonsuit or direct a verdict unless the evidence, in the most favorable light in which it may be considered in behalf of plaintiff, shows that plaintiff was guilty of contributory negligence. —Moffatt v. Tenney, 17 Colo. 191; R. R. Co. v. Martin, 7 Colo. 599; Lord v. Pueblo S. & R. Co., 12 Colo. 393; Empson Packing Co. v. Vaughn, 27 Colo. 66; D. & R. G. R. R. Co. v. Spencer, 27 Colo. 313; Denver v. Soloman, 2 Colo. App. 540; Allen v. Florence & C. C. Ry. Co., 15 Colo. App. 213. In Denver v. Soloman, supra, it is said: “In order to justify the court in' withdrawing the case from the jury, the facts of the case should not only be undisputed, but the conclusion to be drawn from those facts indisputable. ’ ’ In D. & R. G. R. R. Co. v. Spencer, supra, this court said: “When the question of negligence is dependent upon inferences to be drawn from acts and circumstances of that character that different intelligent minds may honestly reach different conclusions on the question, it is for the jury to determine, under appropriate instructions, whether or not. negligence has been established. (Citing cases.) * * * When on the question of contributory negligence, the facts and circumstances are such that different minds may honestly draw different conclusions therefrom, on this subject, it is within the province of the jury to determine that question.” (Citing cases.) The only negligence, if any, imputable to plaintiff, was his continuance in the employment - with knowledge that the danger arising from the defect complained of and which the master had promised to remedy, was so imminent, constant and great that no one but a reckless person, utterly regardless of his personal safety, would venture upon it. Thus the degree or character of the danger, arising from the278 defect, became a question of fact to be determined as any other fact in the case. Otherwise stated, the imminency of the danger, due to the defect, is a question of fact to be determined as any other fact in the case, upon the testimony adduced, and when the facts or circumstances presented by the testimony and the inferences to be drawn therefrom are such that honest, intelligent men may draw different conclusions therefrom, this question should be submitted to the jury. Quoting again from Hough v. Railway Co., supra: “We may add, that it was for the jury to say whether the defect in the cow-catcher or pilot was such that none but a reckless engineer, utterly careless of his safety, would have used the engine without it being removed. If, under all the circumstances, and in view of the promises to remedy the defect, the engineer was not wanting in-due care in continuing to use the engine, then the company will not be excused for the omission to supply proper machinery, upon the ground of contributory negligence. That the engineer knew of the alleged defect was not, under the circumstances, and as matter of law, absolutely conclusive of want of. due care on his part. * * * In such a case as that here presented, the burden of proof to show contributory negligence was upon the defendant.” “Running through all the eases examined on this subject is the principle that if the danger from continuing in the master’s service is so imminent that no one but a person utterly reckless of his personal safety would venture upon it, the master is not responsible. Under such circumstances the law holds-it to be negligence on the part of the servant that will bar any recovery in case of accident. It is, however, a question of fact to be found as any other — 279 — fact in the case, whether the servant is guilty of- negligence by continuing to use defective machinery for a reasonable time for the fulfillment of the promise after the master has promised to make the needed repairs.”—Mo. Furnace Co. v. Abend, 107 Ill. 44-53. The inferences to be drawn from the facts that no rocks had previously fallen, and that 8 or 9 men, more experienced miners than plaintiff, presumably of ordinary intelligence and prudence, with facilities for discovering the defect in the shaft equal to those possessed by the plaintiff, used the shaft without complaint and without apprehending danger from the untimbered portion thereof, speak potently in plaintiff’s behalf, upon the question of his prudence or recklessness. We cannot say that the plaintiff’s testimony and the inferences to be drawn therefrom disclosed that the danger from the defect in the lining of the shaft was so imminent that none but a reckless person, utterly careless of his safety, would have continued in the employment, and that, by so continuing in the service, relying upon the promise of the master, the plaintiff was guilty of such contributory negligence as would, as a matter of law, prevent recovery. No authority has been cited, and we have found none, to the effect that mere knowledge of the defect itself, as matter of- law, is conclusive of want of due care upon the part of the servant. Having arrived at the conclusion that the undisputed evidence did not warrant the court in ruling-, as matter of law, that the danger arising from the defect was so great, continuous and imminent, as to preclude a recovery by plaintiff, it follows, under all the authorities, that the master would have a reasonable time after complaint within which to remedy the defect, and, during such time, the plain — 280 — tiff, -relying upon the promise, did not assume the risk. The plaintiff testified that he made complaint of the- defect to the superintendent two days before the accident occurred; that he continued in the employment with the expectation that the promise made by the superintendent to remedy the defect would be complied with. The time intervening the promise and the accident was not unreasonable, and it sufficiently appears that the promise induced the plaintiff to continue in the employment. It is unnecessary that the servant notify the master, at the time he makes complaint, that he would leave the employment if the defect is not remedied.—Rothberger v. N. W. Con. Mill. Co., 57 Minn. 461. It is sufficient if it appears from the evidence that the promise of the master induced the servant to continue in the employment.—Hough v. Railway Co., supra; Indianapolis, etc., Ry. Co. v. Watson, supra. It is said that there was an entire absence of proof as to the cause of the injury. Plaintiff testified that, a short time previous to . receiving the injury, he had cleaned up the loose rock and debris on the floor of the drift; that while his right hand was on the rim of the bucket, a falling rock struck it and caused the injury; that he did not see the rock; that no work was done in the drift after the injury was received until the next shift. A ’ witness called by plaintiff testified that he worked at the mine in question when plaintiff was hurt, but on the opposite shift; that he went to work on the first shift after plaintiff was hurt — the following morning — and made a search for the rock which was supposed to have hurt plaintiff’s hand, and — 281 — found, right close to the shaft, some small rock— gravel — and one rock about two or three inches thick and six or eight inches long. This was sufficient proof of tbe cause of the injury to submit the question to the jury under proper instructions, and did not invite the jury to invade the realm of conjecture, as contended by plaintiff in error. D. & R. G. Co. v. McComas, 7 Colo. App. 121, cited in support of this proposition by plaintiff in error, owing to a dissimilarity of facts, is not in point. We have very carefully examined the very large number of authorities cited by counsel for plaintiff in error. Many of them are clearly distinguishable from the case under consideration. A review of the authorities cited would unnecessarily prolong this opinion and accomplish no commensurate benefit. The court did not err in refusing to direct a verdict. The judgment will be affirmed. Affirmed. Chief Justice Gabbert and Mr. Justice Gunter concurring.