McGonigle v. Kane , 20 Colo. 292 ( 1894 )

Chief Justice Hayt

delivered the opinion of the court.

This is an action for personal injuries alleged to have been received by plaintiff, Samuel Kane, while in the employ of the defendant, James A. McGonigle.

McGonigle was at the time engaged in the construction of the Pueblo Opera House, as contractor, and Kane was in his employ. The injuries made the basis of this suit resulted from the falling of an elevator provided by the defendant, to be used by plaintiff and others for raising stone and other building material to the upper stories, to be there used in the construction of the building. The elevator was furnished with appliances called “ dogs,” which were intended to catch above and hold the elevator in place during the time of unloading. Upon the dajr of the accident, and immediately prior thereto, the elevator had been used in hoisting a building stone, weighing about 250 pounds, to the fourth floor. It was a part of plaintiff’s duty to unload this stone, and while so engaged the fastenings above gave way, the elevator and its contents, including plaintiff, were precipitated to the basement below, a distance of about seventy feet. Plaintiff, as the result of this fall, was rendered unconscious for three weeks, his spinal cord was -injured and his brain affected.. At the time of the trial, three years after the injuries were received, plaintiff was still unable to do any physical labor, and was then, and had been for a period of one year, growing worse instead of better.

The first error relied upon in this court challenges the sufficiency of the amended complaint. This was raised in the trial court in various ways, viz, by demurrer, by objections to the admission of evidence, a motion for a nonsuit, etc. The demurrer, in addition to the general objection that the complaint did not state a cause of action, contained specific objections to the pleading. The latter were waived, however, by the defendant answering over.

The only question, therefore, presented upon the sufficiency of the amended complaint upon this review is the general one, viz: Does the pleading state a cause of action ? The particular objection urged in argument is that the allegations of the employer’s negligence are, by reason of their generality, insufficient to warrant a recovery. If it be conceded that the allegations of the complaint are not as definite and certain as good pleading requires, it does not necessarily follow that the pleading is so indefinite and uncertain as to entirely fail to state a cause of action.

The complaint sets up the relation existing between the parties. It describes the elevator and the manner of its construction and operation; it describes with great particularity the fastenings by which the elevator was held in position when it was raised to the upper floors. It sets forth the duty of the master to provide safe and suitable appliances and states that he neglected his duty in this behalf, and built and constructed the elevator in a careless, negligent and unskilb ful manner, and that he used in 'the construction thereof material so unsuitable, insecure and unsafe, that the said elevator was not safe for the uses for which it was provided, as the defendant well knew, but the plaintiff did not know. It is alleged that the accident was caused by the elevator breaking from its fastenings. The manner in which the accident happened is set forth in detail, and it is averred that the same resulted from the negligence, unskillfulness and carelessness as above set forth. The specific defect of the machine is pointed out, so that one cannot read the complaint without being advised of the exact cause of action relied upon by the plaintiff.

As a rule, negligence may be pleaded generally. It is an ultimate fact and only ultimate facts are to be pleaded. Bliss, in his work on Code Pleadings, sec. 211 a., says: “ The general allegation of negligence is allowed as qualifying an act otherwise not wrongful. It is not the principal act charged as having caused the injury, but it gives color to the act, makes it a legal wrong; it is the absence of care in doing the act.” Negligence being the ultimate fact to be established, a general allegation is sufficient. “To allege more,” says Rothrock, J., in Grinde v. The Milwaukee & St. Paul R. Co., 42 Iowa, 376, “ would be to plead the evidence, which is not allowable.” Upon principle and authority, we conclude that the negligence of the defendant is sufficiently charged and that the complaint states a cause of action.

The motion for a nonsuit was based upon other grounds in addition to the insufficiency of the complaint. There seems to be no foundation for the claim of a variance between the allegations and the proof. Proof that the elevator was removed from the stage and set up in the tower, where it was being operated at the time of the accident, and of the changes that were then made in its construction, Avas competent under the allegations Avith reference to its construction. In fact, the proof in this respect MIoavs very closely the-allegations of the complaint. That this issue was well understood by the defendant is also apparent from the denials of his answer.

The evidence of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff Avas for the jury and not for the court to Aveigh. The proof tends to sIioav that the accident was due to the faulty construction of the apparatus employed to hold the elevator in place, and that the defendant’s attention was repeatedly directed thereto, Avhile the proof of contributory negligence is so slight that it Avould have been a matter of surprise if the jury had decided other than they did upon both questions.

It is claimed that the plaintiff was guilty of negligence in . riding up on the elevator after he had been warned not to do so, but it is entirely unnecessary to determine this question, as the accident was in no Avay attributable thereto, the proof being that the accident occurred while the plaintiff Avas engaged in unloading the stone, some ten or fifteen minutes after he had been landed in safety upon the upper floor.. That it was proper and necessary for him to go upon the elevator to unload material therefrom stands admitted by the pleadings. And there is little foundation for the claim that plaintiff was negligent in not- observing the defect in the elevator as he took no part in its construction, and it does not appear that he had any knowledge of its defective condition. Asa general rule, questions of negligence are questions of fact for the jury and not for the court to determine. There is nothing in the evidence to make this case an exception.

A number of errors are assigned upon the admission and rejection of testimony. The plaintiff, Samuel Kane, in his evidence was allowed, against objection, to relate the following conversation had with the engineer at the time he was about to take the elevator and go above, viz :

Q. “ Proceed and relate what occurred — you say you asked the engineer if he had full steam ? A. I asked if he had steam to hoist this stone and me, and he said ‘jump on.’” The witness then proceeded to relate what took place from that time up to the time of the accident. This question was merely preliminary to what followed. The answer could not have had any effect upon the verdict, for, as we have heretofore seen, the plaintiff was hoisted with safety and the accident did not occur until he had been upon the upper floor for some minutes. The plaintiff was also asked two questions, which he was allowed to answer over objections, in regard to whether he had ever been advised or knew of the condition of the elevator as to its being safe or unsafe. We think these questions were entirely proper.

The witness Evans was allowed to give his opinion in regard to the condition of the elevator, with reference to its being a safe or unsafe appliance for the purposes for which it was intended, .and this is assigned as error. The witness had previously described the elevator to the jury, giving evidence tending to show that when it was changed from the stage to the tower, certain crossheads on the elevator had been beveled, as directed by the superintendent, Moring, and giving it as his opinion that, after this beveled change had been made, the “ dogs ” did not take effect in holding the rods up. He then said:

“ I called Moring’s attention to the fact that it did not fit, and asked him if I should change it, and he said he didn’t think it was necessary.

Q. “ At the time that that elevator was erected in the tower, with the crosshead ■ beveled in the manner which jrou have shown to the jury, and the ‘ dogs ’ beveled in the manner which you have shown to the jury, was that a safe and proper appliance for the purpose of raising material to the different floors of that building and lodging the same upon the different stories as it was raised? Objected to by defendant as incompetent, immaterial and irrelevant, and because it was the province of the jury to answer the question put to the witness. Objection overruled. Defendant excepts. A. Well, I did not consider it safe or I would n'ot have asked the question should I cut the ‘ dog ’ to fit the elevator here (indicating on model).

Q. “This elevator as it was actually constructed, with the beveled crosshead and the beveled ‘ dogs,’ was that in your opinion a safe or an unsafe machine or appliance for raising stone? Objected to by defendant as incompetent, irrelevant and immaterial. Objection overruled. Defendant excepts. A. I consider it unsafe, for the simple reason that the ‘ dogs’ didn’t fit the head, and the head being beveled, it would naturally have a tendency to slip when taking the load off the elevator and shaking it like that (illustrating, on model). The elevator had play between the leads.

“The defendant moved the court to strike out the last portion of the witness’ answer. The court denied the motion. Defendant excepts.”

The objections to these questions, except the first, like all other objections to the evidence, are general in character. The witness had testified that he was a carpenter by trade, and that he, with an assistant had removed the elevator from the stage and set the same up in the tower a few days before the accidentthat he was consequently familiar with the machine and particularly so with the device intended to hold the elevator in place at the top. The witness was examined as an expert and no objection was raised as to his competency. We shall assume, therefore, that his competency as an expert was conceded. We are of the opinion that the questions and answers taken together were competent under the circumstances. The questions were with reference to matters not of common knowledge, but in which men may become expert by study, observation or experience, and their opinions allowed to go to the jury. See Colorado Midland Railway Company v. O'Brien, 16 Colo. 219. The O'Brien Case was likewise an action for personal injuries alleged to have been caused by the defendant’s negligence in the construction and repair of its roadbed. A civil engineer of experience was asked, upon the hypothesis that certain facts were established, if in his opinion the road at the place of the accident was “ safe or faulty ” for the purposes for which it was then being used. The question was held proper upon appeal, although if the opinion of the witness was accepted by the jury, the principal element going to show negligence on the part of the defendant was established. See, also, Rogers on Expert Testimony, secs. 1-6; Carpenter v. Central Park R. R. Co., 11 Abb. Pr. (N. S.) 416-419; Muldowney v. Ill. Cent. Ry. Co., 36 Iowa, 462; Tinney v. The New Jersey Steamboat Co., 5 Lansing, 507; Hayward v. Draper et al., 3 Allen, 551; Wiggins v. Wallace, 19 Barbour, 338; Sheldon v. Booth, 50 Iowa, 209.

The instructions given by the court to the jury were full and explicit and we think covered every question of law involved in the case. The instructions asked by the defendant were therefore properly refused.

Finding no error in the proceedings, the judgment will be affirmed.

Affirmed.