DocketNumber: No. 8772
Citation Numbers: 62 Colo. 211
Judges: Chiee, Gabbert, Scott, Teller
Filed Date: 9/15/1916
Status: Precedential
Modified Date: 7/20/2022
Opinion by
The defendant in error, a minor 20 years of age, brought suit, by his father, against the plaintiff in error
The answer denied that defendant was negligent, and alleged contributory negligence on the part of the plaintiff.
The jury found for the plaintiff, fixing his damages at $1,000, and judgment was entered on the verdict.
Plaintiff in error contends that its motion for a directed verdict should have been sustained, the ground thereof being that the evidence sustained the defense of assumed risk, or contributory negligence, treating both of these defenses .as included in the answer.
The argument in favor of this contention is that from the evidence it appears that the plaintiff had been working there for five months, with full opportunity to observe the curtain and know of its length. Witnesses'who had worked in the mine testified that they had noticed that the curtain lapped on the floor, though, the plaintiff asserted that going through on his car he had'never observed the length of the curtain. He also testified that
The motion for a directed verdict, being in effect a demurrer to the evidence, admits the truth of the evidence. The question, then, is this: Does the evidence show, as a matter of law, that plaintiff assumed the risk of injury from the condition of the curtain?
Plaintiff in error, to support its contention, invokes the rule that “a servant assumes hot only such risks as from the nature of the business, as ordinarily conducted, he must have known, but also those which the exercise of his opportunities for inspection would have disclosed to him.” There is no dispute that such is the law.
It is true, also, that a servant, to be held to have assumed a risk, need not have knowledge of the risk, if it is such that an ordinarily prudent man, under the circumstances, could by reasonable diligence have discovered it.
In this case the plaintiff denies that he knew that the curtain was too long; hence, to affect him with knowledge of the curtain’s excessive length, it must be found that an ordinarily prudent man would, under the circumstances of this case, have noticed that the curtain was too long.
This is a question on which from the evidence fair minded men might reasonably differ. It was, therefore, for the jury to determine.
Again, if it were found that knowledge of the curtain’s length should be imputed to the plaintiff, there still remains the question whether or not he recognized, or should, under these circumstances, have recognized that there was danger to him in the length of the curtain. The danger was not obvious, and it cannot be said that reasonable men might not draw different conclusions as
There was no error in overruling the motion for a directed verdict. The only other point argued is that there was evidence which contradicted plaintiff’s testimony as to the precise manner in which he was injured. If that be true, it was the province of the jury to determine which testimony to accept, and find accordingly.
Finding no error in the record, the judgment is affirmed.
Judgment affirmed.