jury? The defendant contends that it does. | round the employé at the time (D. & R. G. The lower court did, and for that reason directed the verdict. Second. Was notice given to the defendant of the time, place, and cause of the injury, if such notice is required by the act of 1901? Under the allegations of the complaint the negligence of the co-employé consisted of two acts: First, in negligently providing himself with improper, unsafe, and insufficient tools; second, with negligently using improper, unsafe, and insufficient tools with ack of ordinary care. To provide one's self with tools is one thing; to use those tools is another thing. One may select improper, unsafe, and insufficient tools, and yet use those tools, under the circumstances, with such ordinary care that no injury may result; on the other hand, he may select such tools and use them with such lack of ordinary care as to cause injury. To assume the risk of working with a co-employé who has selected improper, unsafe, and insufficient tools is one thing, while to assume the risk of working with a co-employé who uses improper, unsafe, and insufficient tools with a lack of ordinary care is another thing. If it be granted, for argument's sake (but not decided), that Dalra had provided himself with improper, unsafe, and insufficient tools, and that the plaintiff had assumed the risk of working with him, with such tools, that is not granting that the plaintiff assumed the risk of Dalra's using those tools with lack of ordinary care. The evidence in the case shows that Dalra, in an angry manner, suddenly drew back, and with his whole force struck the spike, which caused the injury to plaintiff. He did not do so before. His use of the tools before that did not arouse in plaintiff any apprehension of danger to any one but Dalra himself. True, the spikes frequently bounded before that, but it does not appear that they bounded in the direction of, nor as far as, plaintiff. Even the bounding of the two spikes at plaintiff's end of the plank, immediately preceding the bounding of the one that struck his eye, does not appear to indicate that plaintiff was in any apparent danger at the distance he was away if Dalra continued to endeavor to start the spikes as he had been doing, or if he would use ordinary care in so doing. Up to the time that Dalra struck the last spike he so used the tools he had, and the plaintiff was so situated, that the latter's danger was not so apparent or obvious as to warrant a court in saying that, as a matter of law, the plaintiff had assumed any risk. The most that can be said is that there was possible danger that Dalra would so attempt to start a spike that it would be driven with such force, and to such a distance, as to injure plaintiff. It is not the possible dangers or risks that are assumed in any case, but only such risks as are obvious to a person of ordinary intelligence, ability, and experience, and which R. R. Co. v. Sporleder, 39 Colo. 142-147, 89 Pac. 55; Dresser's Employers' Liability Act, § 95) or the ordinary risks incident to the service for which he is employed (Orman v. Mannix, 17 Colo. 564, 30 Pac. 1037, 17 L. R. A. 602, 31 Am. St. Rep. 340). From this record it fairly appears that in all probability the accident would not have happened if Dalra had not attempted to drive the last spike in such a violent manner. It follows from this that the negligence, if there was any, and this is for the jury to determine from all the evidence, arose out of the manner in which it was attempted to drive the spike which struck plaintiff. Can it be said that the plaintiff should have anticipated such sudden and violent action on the part of Dalra? Was it obvious, and can it be said. under such circumstances, that the plaintiff had assumed the risk that Dalra would do that? To say that the plaintiff had assumed the risk of Dalra's attempting to drive that spike in such a violent manner would be carrying the doctrine of the assumption of risk to an unreasonable extent, and far beyond that to which its most favorable advocates have carried it. To hold that the plaintiff had assumed the risk of Dalra's violent attempt to drive that spike, if such attempt was negligence, would be to nullify, to an extent, the statute of 1901, for then to every action for an injury, occasioned by the sudden and not to be expected negligence of a co-employé, could be interposed the defense of the assumption of risk. Before a man can assume the consequences of an action, it must be obvious that it will happen and the assumption be voluntary on his part. Before an employé can assume a risk, it must be understood and appreciated by him and the assumption must be voluntary in its character. Burgess v. Davis Sulphur Ore Co., 165 Mass. 71-73, 42 N. E. 501. In this case, the plaintiff did not know, nor can it be said that he should have anticipated or understood or appreciated, or that it was obvious, that Dalra was going to do what he did do, nor did he have any time to guard himself against such action on Dalra's part. It is plainly evident, therefore, that it cannot be held, as a matter of law, that the plaintiff had, or even could have, assumed the risk of such action. In 1893 our General Assembly passed an employer's liability act (Laws 1893, p. 129, c. 77), which provided that before an action can be maintained under it, a written notice of the time, place, and cause of the injury must be given to the employer within 60 days. The act of 1901 is an independent act, and is silent as to notice. The defendant contends that the language of section 2 of the act of 1901 makes the provisions of the former act, relative to notice, a part of the latter one. It need not be determined whether a notice is or is not necessary under the of the act of 1893, relative to notice, were substantially complied with in this case. On December 19, 1902, the attorney for plaintiff, as such attorney and on behalf of the plaintiff, addressed and mailed a letter to the resident manager of the defendant, wherein was stated the time and place of the injury, for which compensation was asked. In this letter the attorney referred to another letter from the plaintiff's physician as inclosed. The physician's letter was inclosed. It was addressed to the manager. In the letter of the physician it was said: "He [the plaintiff] was injured in the left eye on Nov. 14, 1902, in Camp Bird mine. The left eye was ruptured by the blow he received," etc. The cause is here stated, "the blow he received," and by reference became a part of the attorney's letter. It cannot be said that no cause was stated. It was a meager statement, but it was not an entire failure to state the cause. The section of the act of 1893 providing for notice says: "But no notice, given under the provisions of this section, shall be deemed invalid or insufficient, solely by reason of any inaccuracy in stating the time, place or cause of the injury: Provided it is shown there was no intention to mislead and that the party entitled to notice was not in fact misled thereby." But for the provision of our statute above quoted, the notice given by the attorney's letter would be clearly insufficient, under the decision in Stoors v. City of Denver, 19 Colo. App. 159, 73 Pac. 1094. In that case the charter provision, under which the notice was given, did not contain any provision to save a notice against omissions, defects, or inaccuracies, and therefore the decision is not applicable here. The English employer's liability act of 1880 provided for the giving of notice before an action can be maintained. Section 7 provided that the notice shall give the name and address of the person injured, the cause of the injury in ordinary language, and the date it was sustained, and further provided that a notice "shall not be deemed invalid by reason of any defect or inaccuracy therein," unless the trial judge shall be of the opinion that the defendant is prejudiced thereby, and that the defect or inaccuracy was for the purpose of misleading. Note to Carter v. Drysdale, 12 Q. B. Div. 91. In that case the omission of the date of the injury from the notice was held to be a defect or inaccuracy within the meaning of section 7. In Stone v. Hyde, 9 Q. B. Div. 76, the notice stated the date of the injury, and that plaintiff was at a hospital for an injury to his leg, and gave no further suggestion of the cause. The court held that the notice, although defective in stating the cause, was still a notice; and, as there was no evidence that the defendant was prejudiced thereby, the nonsuit was set aside. In Thompson v. Robertson & Co., 12 Rettie's Rep. 121, a let defendants, in which she said she needed money. That it was "five weeks since Adam got his accident. His jaw is so badly smashed that he will never be the same man again." That Adam had been advised to get damages, and as another man got some money, she could not see why Adam should not get some too. The court said that this letter gave notice to the defendants that the plaintiff was seriously hurt in their employment, and had been advised to claim damages. The only objection to the letter, as a notice, was its failure to state the cause of the injury. The court thought this objection too critical, and that under the provisions of section 7 the only question was whether the alleged inaccuracy in the notice prejudiced the defendant. In Previdi v. Gatti, 50 L. T. 762, the notice omitted to give the address of the person injured, or to state the cause, and the date of the injury was wrongly given. The trial judge found that the defendants had not been prejudiced by the defects and inaccuracies in the notice, and they were not for the purpose of misleading; and the court on appeal held that this finding rendered the notice good. Some of the judges in these English cases said that the notice is supposed to be given by a person not possessed of much knowledge, and, if it be construed with rigorous strictness, the act would be nugatory. The same can be said with regard to the notice required by our statute. The applicability here of these cases lies in the fact that they afford an admonition that under our statute more heed should be given in case of an inaccurate notice to the question whether such notice is intended to mislead, and did in fact mislead, than to the contents of the notice itself; and it is with this admonition in mind that an application of our statute to a given notice is approached. In Massachusetts, before an action could be determined against a city or town for damages for an injury in a highway, the statute provided that notice of the time, place, and cause of the injury should be given. In 1882 the statute was amended by adding a provision concerning inaccuracy, and this provision is almost, word for word, the same as the provision in our statute of 1893, quoted above. Note 2, Fortin v. Easthampton, 142 Mass. 486, 8 N. E. 328. In Gardner v. Weymouth, 155 Mass. 595, 30 N. E. 363, in construing this amendment, the court said that it would be too strict a construction to hold that the amendment applies only to cases of misstatement. With this we are in accord. The court then proceeds to say that the amendment can have no application at all where there is a total omission to state either all or any of the requirements of time, place, or cause. This does not appear to be in harmony with the decisions of the English courts. The court then says: "If there is a statement of the kind required which as to the time or the place or the cause of the in deficiency, whether through omission or er- | pears that this question of whether the inaccuracy is intended to mislead, and did in fact mislead, is one for the jury, under a statute like ours, the same as other facts are to be determined by a jury. If we investigate this matter in this record, we find that on December 22, 1902, defendant's attorneys wrote a letter to plaintiff's attorney, saying that the manager had handed to defendant's attorneys, for reply, the letter of December 19th, and that from the investigation which the company had made there seemed to be no liability on its part. The letter further stated that the defendant was carrying liability insurance, and suggested that plaintiff's attorney take the matter up with the attorneys for the insurance company, who had knowledge of all the facts. After the receipt of the letter of December 22d plaintiff's attorney delivered to the attorneys for the insurance company an affidavit of plaintiff, stating, in detail, the time, place, and cause of the injury. This affidavit was dated December 27th. It does not clearly appear when it was delivered, although it seems to be accepted that it was delivered within the 60 days in which notice must be given under the statute. From all this it plainly appears thus far in the record that there was no intention to mislead the defendant by the statement of the cause as made, and that the defendant was not in fact misled thereby. ror, the plaintiff may still recover if there was no intention to mislead, and if the inaccuracy did not in fact mislead." This holds that the inaccuracy may consist of a falsity, deficiency, error, or omission, and puts the final test of the sufficiency of the notice upon the question whether or not the inaccuracy was intended to mislead and did in fact mislead. This is in harmony with the English decisions, and in the cases which have gone forward the practical results have been virtually the same, although the Massachusetts court appears to hold that the omission must fall short of a total omission to state any of the three requirements. In Fortin v. Easthampton, supra, the notice read as follows, and was held sufficient: "Since falling on the sidewalk in front of the Button shop, Feb. 25th last, I have been unable to work, and am now under the doctor's care, and I hereby notify you to that effect. I request a settlement in some way. Please attend to the matter at once." The defendant argued that there was a total failure to state any cause, and that a total omission cannot be called an inaccuracy. In reply to this contention Mr. Justice Holmes said: "But a majority of the court are of the opinion that the argument, as applied to this case, construes the statute too narrowly. When a man states that he was hurt by falling on a sidewalk, and that he demands damages for it, he does imply, although indirectly and insufficiently, that there was something for which the town was responsible as the cause of the damage, and thus that there was something wrong about the way. And this is true, even though the reference to falling is, primarily at least, only for the purpose of fixing a time. It is hard to suppose that the statute intends to cure a misstatement of the cause, which, on the face of things, is more likely to mislead than no statement at all, and yet to allow a simple omission to remain fatal. However this may be, a very slight suggestion of the cause will be sufficient when the conditions of the statute are complied with." See, also, Canterbury v. Boston, 141 Mass. 215, 4 N. E. 808; Liffin v. Beverly, 145 Mass. 549, 14 N. E. 787; Veno v. Waltham, 158 Mass. 279, 33 N. E. 398; Conners v. Lowell, 158 Mass. 336, 33 N. E. 514; Fuller v. Hyde Park, 162 Mass. 51, 37 N. E. 782; Carberry V. Sharon, 166 Mass. 32, 43 N. E. 912. It is suggested in the brief that the affidavit delivered to the attorneys for the insurance company was a notice to the defendant, because delivered to the persons designated to represent the defendant in the whole matter of plaintiff's claim, and that notice was waived by the acts of defendant. There may be force to these suggestions; but, as it is not now necessary, they will not be determined. So far as the second cause of action is concerned, it cannot in reason be maintained that, if the defendant contracted at all, it contracted to do more than to furnish such reasonable care as the hospital at Ouray afforded. Such hospitals are not equipped with all kinds of specialists. The plaintiff will certainly not maintain that, if it became necessary for his proper treatment that he consult an eminent specialist in New York, the company was bound to furnish such specialist, either at the hospital at Ouray or in Without determining whether or not a no- New York. It is likewise too much to say tice which entirely fails to state any one that the company was bound to furnish a speof the three requirements would be suffi- cialist either at the hospital or in Denver. cient, bearing in mind the admonition af- The company furnished such care as the forded by the English decisions and the hold- hospital in Ouray afforded, and as could be ing of the Massachusetts court that a very reasonably expected-at least no complaint slight suggestion of the cause is sufficient, was made of it. This is all that can be reit appears that in the present case the sug-quired. The plaintiff has alleged expenses gestion of a cause in the attorney's letter is for medical services and care and loss of time sufficient, if it was not thereby intended to in his first cause of action. mislead the defendant, and the defendant was not in fact misled thereby. From the in this, he will no doubt receive such compensation for these expenses as he may show For the reasons above stated, the direction |2. STATUTES (§ 181*)-CONSTRUCTION-UNJUST of the verdict was wrong as to the first cause RESULT. of action and right as to the second. The judgment of the district court will therefore be reversed, and the cause remanded for such further proceedings on the first cause of action as may be in accordance with law. Reversed and remanded. STEELE, C. J., and CAMPBELL, J., con cur. PEOPLE ex rel. CALLAWAY v. (Supreme Court of Colorado. Dec. 6, 1909.) A construction of a statute which would be unjust, unreasonable, and absurd should be avoided unless its express terms imperatively require it. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 263; Dec. Dig. § 181.*] 3. CONSTITUTIONAL LAW (§ 12*)-CONSTRUCTION OF CONSTITUTION. An unjust, absurd, or unreasonable result should be avoided, if possible, in construing a constitutional provision. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 9; Dec. Dig. § 12.*] Campbell and Gabbert, JJ., dissenting. En Banc. Error to District Court, Montrose County; Sprigg Shackelford, Judge. Proceeding in the nature of quo warranto by the people, on relation of Michael A. Callaway, against Ed. De Guelle. Judgment for respondent, and relator brings error. Reversed, with directions to enter order as stated. T. was elected sheriff in November, 1906, for the term of two years, commencing with the second Tuesday of January, 1907, and was re-elected for a two-year term beginning on the At the annual election in November, 1906, second Tuesday of January, 1909, but died No-one James C. Taylor was elected sheriff of vember 23, 1908, before qualifying for the sec- Montrose county for the term of two years ond term, and on December 29, 1908, the board of county commissioners appointed respondent commencing on the second Tuesday of Jansheriff to fill the vacancy "until the next general uary, 1907. He duly qualified and entered election," and he duly qualified and entered into upon the duties of the office, which he conthe office on January 2, 1909; but on January 12, 1909, before the commencement of the second tinued to perform until the 23d day of Noterm, the board declared the office vacant and vember, 1908, when he died. He was, howappointed relator to fill such vacancy "until the ever, prior thereto, and at the general elecnext general election." Const. art. 12, § 1, pro- tion in November, 1908, re-elected for the vides that an officer shall hold until his successor is duly qualified. Article 14, § 9, provides term of two years, beginning on the second that, in case of vacancy in a county office, the Tuesday of January, 1909, but had not at county commissioners shall fill it by appoint- the date of his death qualified for the second ment, and the appointee shall hold such office until the next general election, or until the va- term. On the 29th day of December, 1908, cancy be filled according to law. Article 12, 8 the board of county commissioners of said 10, provides that an office is vacant if the county appointed the defendant in error person elected or appointed refuse or neglect to qualify within the time prescribed by law, and sheriff thereof, to fill the vacancy in said ofby section 11 the term of any officer elected fice "until the next general election," and to fill a vacancy terminates at the expiration said appointee thereafter qualified, and on of the term during which the vacancy occurred. Mills' Ann. St. § 848, requires a sheriff to be January 2, 1909, entered into said office, and elected for a term of two years, and to give bond has since performed the duties thereof. On before entering upon his official duties. Sec- the 12th of January, 1909, being the comtion 808 empowers the county commissioners, in case of vacancy, where the unexpired term 'ex- mencement of the two-year term for which ceeds one year, to fill such vacancy by appoint- James C. Taylor was elected in 1908, the ment until an election can be held as provided board of county commissioners, by a resoluby law. Section 924 makes every county office tion, declared the office of sheriff for said vacant upon the death of the incumbent, or his refusal or neglect to qualify. Section 1586 per- term vacant, and appointed the relator to mits officers appointed to fill vacancies to im- fill such vacancy "until the next general elecmediately qualify, but provides that, if appoint- tion." The relator on the same day qualified ed, they shall hold only until their successors are elected or qualified. Section 1589 requires and demanded of the defendant in error to vacancies in county offices to be filled by ap- be let into the possession of said office; but pointment by the county commissioners until the the latter refused to comply with said denext general election, when they shall be filled mand. the district attorney by election, subject to the provisions of Const. art. 6, § 29. Held, that the term "vacancy" ap- brought a suit in the nature of quo warranto plied to the term, and not to the incumbent, and, to have defendant ousted from, and the reunder Const. art. 12, § 10, T.'s neglect to qualify lator admitted into, said office. Judgment made a vacancy in the office, and relator was entitled to the office under his appointment of went against the relator and in favor of the January 12th; respondent being entitled, under respondent, and to review that judgment this his appointment, to serve until the second term suit is prosecuted. began. [Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. §§ 9-12; Dec. Dig. 5.* For other definitions, see Words and Phrases, vol. 8, pp. 7259-7264.] Thereupon Counsel have cited, as bearing upon, and necessary to a determination of, the case, several constitutional and statutory provisions, to wit: Const. Colo. art. 12, § 1: "Every person | eral counties of the state, except that of a holding any civil office under the state, or any municipality therein, shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified," etc. Id. art. 14, § 9: "In case of a vacancy occurring in the office of county commissioner, the Governor shall fill the same by appointment; and in case of a vacancy in any other county office, or in any precinct office, the board of county commissioners shall fill the same by appointment; and the person appointed shall hold the office until the next general election, or until the vacancy be filled by election according to law." Id. art. 12, § 10: "If any person elected or appointed to any office shall refuse or neglect to qualify therein within the time prescribed by law, such office shall be deemed vacant." Id. art. 12, § 11: "The term of office of any officer elected to fill a vacancy shall terminate at the expiration of the term during which the vacancy occurred." Id. art. 6, § 29: This section deals with the judiciary exclusively and is referred to in section 1589, Mills' Ann. St., post. Section 808, Mills' Ann. St.: "In case of any vacancy now existing or which may hereafter occur in any county office, except that of county commissioner or county judge, whose unexpired term of office shall exceed one year, or in any precinct office in any county of this state, by reason of death, resignation, removal or otherwise, the county commissioners of said county shall have power to fill such vacancy by appointment until an election can be held as provided by law." Section 924, Id.: "Every county office shall become vacant on the happening of either of the following events before the expiration of the term of office: First, the death of the incumbent; second, his resignation; third, his removal; fourth, his ceasing to be an inhabitant of the county for which he was elected or appointed; fifth, his conviction of any infamous crime, or any offense involving a violation of his official office; sixth, his refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath and bond within the time prescribed by law; seventh, the decision of a competent tribunal, declaring void his election or appointment." county commissioner, shall be filled by appointment by the county commissioners of the county in which the vacancy occurs until the next general election, when such vacancy shall be filled by election subject to the provisions of section twenty-nine, article six of the Constitution." R. M. Logan, Dist. Atty., Hugo Selig, and T. J. Black, for plaintiff in error. Bell, Catlin & Blake (P. W. Mothersill, of counsel), for defendant in error. WHITE, J. (after stating the facts as above). Defendant in error contends: That, in case a person holding office under proper election and qualification dies, his successor is to be appointed by the board of county commissioners for a term extending until the next general election, at which time his successor is to be designated by election; that between the first appointment and the next general election there can be no other appointment, unless a vacancy occurs by reason of the happening to the first appointee of one of the things mentioned in section 924, Mills' Ann. St.; and, in any event, Taylor having died, and defendant having been appointed to the vacancy occasioned thereby, the latter is entitled to hold the office, not only during the unexpired term of Taylor under the election of 1906, but until a successor appears who has been elected by the people of the county at large, and who subsequently qualvides the right to the office into certain terms, each of two years' duration; that inasmuch as Taylor did not appear on January 12, 1909, claiming and qualifying for the office under the election of November, 1908, the office for that term, under section 10, art. 12, Const., became vacant, and the board of county commissioners properly so declared, and under section 9, art. 14, Const., appointed him to fill such vacancy. ifies. The relator claims: That the law di It is argued that, under section 9, art. 14, of the Constitution, and sections 808 and 1589 of the statutes, a person appointed to fill a vacancy in such office, as here under consideration, would hold the same not only for the unexpired term in which the vacancy occurred, but also for the succeeding term, until the election of 1910, as no election can, according to law, be held until then. Adopting that interpretation, such would be the effect thereof, notwithstanding a sheriff-elect was then demanding, and ready to assume the duties of, the office to which he had been chosen by the people. That a person elected to an office for a specific term, to commence in futuro, should be deprived of the office to which he was elected, because a vacancy subsequently occurred in a preceding term, to fill which a person was appointed under a law declaring that such appointment shall be "until the next general election," is so Section 1589, Id.: "All vacancies in any unjust, unreasonable, and absurd that such Section 1586, Id.: "Any of the said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and if elected they may hold the same during the unexpired term for which they were elected, and until their successors are elected and qualified, but if appointed they shall hold the same only until their successors are elected and qualified." |