Colorado Capital Coal Mining Co. v. Chatfield

Mr. Justice Gabbert delivered the opinion of the court: The most that can be claimed for the testimony on the part of plaintiff is that it was for the jury to determine whether negligence on the part of the company or its employees, or the negligence of the deceased in passing through the shaft and over the cage .instead of the man-way, was the proximate cause of his injury. [165] It is clear that the failure of the defendant to equip its mine with a speaking tube or telephone connection in no manner contributed to the injury of deceased. It does not appear that either of these appliances were necessary or were ordinarily used for signaling’ the engineer to hoist the cage. Bells were provided for this purpose and in working order. Failure on the part of the company to comply with the statute relating to speaking tubes and telephone connections, was negligence, but not actionable, when it appears that it did not cause or contribute to the injury of deceased.—Kent Mfg. Co. v. Zimmerman, 48 Colo. 388, 10 Pac. 187; Elkton Cons. G. M. & N. Co. v. Sullivan, 41 Colo. 241, 92 Pac. 679. In determining the vital question in the case the testimony relating to such negligence was in no sense pertinent, and its admission and the instruction of the court upon the subject presented a collateral matter which tended to confuse and mislead the jury, instead of informing them upon the issue they were to consider and determine.—Denver Tramway Co. v. Cowan, 51 Colo. 64. The judgment of the District Court is reversed and the cause remanded for a new trial. Judgment reversed. Mr. Chief Justice Musser and Mr. Justice Bailey concur.