Metallic Gold Mining Co. v. Watson

Mr. Justice Garrigues delivered the opinion of the court; 1. Plaintiff was an experienced miner, and timbering was part of his employment. He had worked at the mine about five months and was as familiar with the condition of.the drift as Blanchard, the superintendent. Defendant concluded to make an upraise in the drift to stope out the ore, and to make it a reasonably safe place to work, it was necessary to timber. The rule that where one employs another, he must exercise ordinary care to furnish the employe with a reasonably safe place to perform the services, has no application to this case. Plaintiff was engaged in making a dangerous place reasonably safe. Timbering for the upraise was necessary to make a reasonably safe place to work. To require a safe place to work while timbering, before timbering, to make it safe, would mean no timbering. Some one had to assume the risk in the beginning. Plaintiff was under no obligation to timber for the upraise, but if he did, and was injured, without negligence upon the part of the defendant, he assumed the risk, and cannot recover. The trial court should have decided as a matter of law, that plaintiff assumed the risk. — Poorman Silver Mines v. Devling, 34 Colo. 37; City of Greeley v. Foster, 32 Colo. 293; Denver Tramway Co. v. Nesbit, 22 Colo. 408; Wells v. Coe, 9 Colo. 159; Iowa Gold M. Co. v. Diefenthaler, 32 Colo. 391; Dickson v. Newhouse, 34 Colo. 228; Victor Coal Co. v. Muir, 20 Colo. 320; Colo. Coal & Iron C. v. Lamb, 6 Colo. App. 266; Stiles v. Richie, 8 Colo. App. 393; Harvey v. Mountain Pride G. M. Co., 18 Colo. App. 234; Finlayson v. Utica M. & M. Co., 67 Fed. 507; Walker v. Scott, 67 Kan. 814; Christienson v. Rio Grande, 27 Utah 132; Naylor v. C. & N. W. Ry. Co., 53 Wis. 661; Morbach v. Home M. Co., 53 Kan. 731; Skidmore v. W. Va. Co. 41 W. Va. 293; Hassie v. Peel Co., 41 W. Va. 620; Reed v. Stockmeyer, 20 C. C. A. 383; Aldridge v. [285] Furnace Co., 78 Mo. 559; Smith v. Hecla M. Co., 38 Wash. 454; Watson v. Coal Co., 52 Mo. App. 368. 2. Where one, hired to work for another, is injured in an accident, primarily there is no reason why the employer should be liable for the injury. The mere fact that one man gives employment to another is no legal reason why the employer should be liable for an injury received in an accident. We must not lose sight of the universal law of cause and effect. Plaintiff must show that defendant’s negligence caused his injury. Negligence, and not employment, is the basis of liability. There is no proof of . any negligence in this case, upon which to base a verdict. Plaintiff was not suddenly ordered by a superior into a dangerous place about which he knew nothing, and had no time to examine. He was doing the work for which he was employed, and with which he was familiar. He knew the place, and the purpose for which the work was being done. The best timbers and the most approved method of timbering was adopted. He had not only equal means of knowledge, but equal knowledge with the defendant. He and Blanchard examined the place together and both agreed it was safe. If with his years of mining experience he thought it was safe, it cannot be said that the company was guilty of negligence when the superintendent examined it and coincided with him. It is useless to consider the supposed case; had plaintiff been injured by a rock fall while going through the drift as a passageway to or from his work. Such is not the case. The complaint does not state The ultimate facts truthfully. -It is drawn to get past the court to the jury, and is remarkable in what -it fails to state. If plaintiff had truthfully stated the ultimate facts as he proved them on the trial, he would have stated himself out of court. No cause of action, based upon negli [286] gence, can be stated on the facts proven. The court should have held as a matter of law, that there was no negligence proved, upon which to base a-verdict. 3. Filing a replication instanter was a matter that rested in the sound discretion of the court, and was not abused in this case. 4. Litigants are entitled to have their cases tried to fair minded, impartial jurors. The code provides as a ground of challenge for cause, the existence of a state of mind in the juror evincing bias to either party. The examination of the juror Holmes, showed a state of mind evincing strong bias in favor of one of the parties. It showed that he would require a reversal of the order of proof and place upon the defendant, the burden of disproving the plaintiff’s case. The challenge for cause should have been sustained. — Ancient Order of United Workmen v. Taylor, 44 Colo. 373. 5. The court instructed the jury: 2. “Where several acts or conditions of things,— one of them the wrongful act or omission of the defendant, — produce the injury, and.it would not have been produced but for such wrongful act or omission, such act or omission is the proximate cause of the injury, if the injury be one which might reasonably be anticipated as a natural consequence of the act or omis- ■ sion.” This aptly illustrates an instruction containing correct principles of law, without application to the evidence in the case on trial. It seems to be copied from the syllabus in the case of City of Denver v. Johnson, 8 Colo. App. 384, where the question was, whether an act of the city or of the Tramway Company, was the cause of the injury. The principle of law announced in that case is right; embodied in an instruction in this case, it is wrong. In this case the act of some third person or agency is not involved. Instructions should be based upon the evidence, and no instruction should as a rule [287] be given, which is not relevant to facts which there is some evidence tending to prove. This instruction, applied to the facts in this case, is misleading, and should not have been given. Reversed. Chief Justice Campbell and Mr. Justice Musser concur.