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but we do not consider that their decision would be of any importance, or in any wise affect the proper judgment to be pronounced in this case.

The judgment of the district court is affirmed.

Affirmed.

(37 Colo. 423)

CRIPPLE CREEK MINING CO. v. BRABANT.

(Supreme Court of Colorado. July 2, 1906. Rehearing Denied Dec. 3, 1906.)

1. PLEADING COMPLAINT STATEMENT OF CAUSE OF ACTION PLEADING DOUBLE STATEMENT.

While, as a general rule, the practice of pleading a double statement of the case so as to meet the exigencies of the proofs is not permitted, the rule is not inflexible, and it is sometimes permissible to duplicate statements for the same cause of action where there is cause to believe that plaintiff cannot go safely to trial on a single statement.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 114.]

2. JURY--EXAMINATION OF JURORS-CONNECTION WITH INSURANCE COMPANY.

In an action for injuries to a servant employed in a mine, it was proper for plaintiff's counsel to ask jurors on their voir dire if they were interested in a certain guaranty insurance company.

3. MASTER AND SERVANT-FELLOW SERVANTS -MINING.

One who had entire charge of the work of timbering in a mine, and was in full control of the timbermen, was not a fellow servant with one working under him in the work of timbering. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 427-430.] 4. SAME-INSTRUCTIONS.

Where, in an action for the death of a miner, owing to a fall of rock, the evidence was conflicting as to whether the work in which he was engaged was that of making safe a dangerous place, and plaintiff's evidence tended to show that decedent first worked in the place on the day of the injury, and that the danger was not obvious, though there were some indications that it was not entirely safe, which had been communicated by decedent to his overseer, and that the latter had assured him that the place was safe, it was proper to instruct that the doctrine as to a safe place was applicable to the case made by plaintiff's evidence.

Appeal from District Court, Teller County; Louis W. Cunningham, Judge.

Action by Minnie V. Brabant against the Cripple Creek Mining Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wolcott, Vaile & Waterman, H. H. Dunham (Wm. W. Field, of counsel), for appellant. Stimson & Smith and James J. McFeely, for appellee.

CAMPBELL, J. Action by Minnie V. Brabant, widow of Fred Brabant, deceased, to recover damages for personal injuries resulting in her husband's death through de fendant's negligence. From the judgment in plaintiff's favor, defendant appeals.

1. It is urged that the complaint is subject

to the vice of duplicity in that it contains two separate counts relating to the same state of facts, and that the court erred in not compelling plaintiff at defendant's request to As elect on which she would go to trial. stated in Spaulding v. Saltiel, 18 Colo. 86, 88, 31 Pac. 486, the practice of pleading a double statement of the case so as to meet the exigencies of the proofs is not, as a general rule, permitted under the Code. The rule. however, is not absolutely inflexible. In Cramer v. Oppenstein, 16 Colo. 504, 27 Pac. 716, it was said that it sometimes becomes necessary, and therefore permissible, to duplicate statements for the same cause of action where there is reasonable cause to believe that plaintiff cannot safely go to trial upon a single statement, as where he cannot reasonably be expected to anticipate the evidence in advance of the trial. We think the case in hand comes under this exception to the general rule. Leonard v. Roberts, 20 Colo. 88, 36 Pac. 880; Manders v. Craft, 3 Colo. App. 236, 32 Pac. 836; Rucker v. Smelting & Refining Co., 18 Colo. App. 487, 72 Pac. 682; Vindicator Cons. G. M. Co. v. Firstbrook (Colo.) 86 Pac. 313.

2. At the close of her case in chief, plaintiff was allowed, over the objection of defendant, to amend her complaint by inserting allegations as to the amount of wages her deceased husband was receiving at the time of his death, and that defendant assured him that the place where he received his fatal injuries was safe. Possibly the usual formalities were not complied with by plaintiff in making the request, but we do not think, in the circumstances disclosed by the record, that the court abused its discretion in permitting the amendment to be made. Indeed, the court by its ruling promoted a leading object of the Code, viz., to assist the parties in obtaining justice.

3. The objections to rulings of the trial court in admitting and excluding testimony and in curtailing, as alleged, the right of defendant to cross-examine plaintiff's witnesses, we do not find to be well taken. Possibly technical errors may have been committed in some particulars, but they were not of serious consequence, and clearly not prejudicial, and some of them were cured by subsequent rulings. For these reasons, we do not notice them in detail, and for the additional reason that they fall within the range of the legal discretion of the trial judge which was not abused.

4. In the examination of some of the jurors on voir dire plaintiff's counsel asked them if they were interested in a certain guaranty insurance company. The defendant vigorously asserts that this constituted prejudicial error inasmuch as the attention of the jurors was unnecessarily directed to the supposed fact that an insurance company, and not the defendant, was the real party in interest, since it is matter of common notoriety that mining companies usually insure against

such accidents. We do not find from the We do not find from the record that there was any intention by plaintiff's counsel to make prominent this connection of the insurance company with the case, but are of opinion that he might thus obtain the information as a guide for the exercise of a challenge for cause or peremptorily. This point was so ruled by this court in the Firstbrook Case, supra, and the case in hand comes within that decision.

5. The appellant's assignments of errorthat the evidence fails to show negligence of defendant, and that the proofs are conclusive that plaintiff's husband assumed the risk of the danger incurred and was guilty of Contributory negligence, and that the doctrine of safe place does not apply-are best considered in connection with the objections which it makes to the charge to the jury. To an understanding of these objections, the issues should be stated and a summary of the evidence given.

The two principal specifications of negligence averred in the complaint are that defendant violated its duty to plaintiff's husband in that it failed to provide a reasonably safe place for him to work, and that, without fault upon his part, he obeyed the commands of defendant's representative to work in a dangerous place, which was known to be so by defendant, and unknown to, and could not have been ascertained by, him in the exercise of reasonable care. The defenses pleaded were a denial by the defendant of negligence on its part, and the affirmative pleas of assumption of risk and contributory negligence. The court submitted the case to the jury upon the theory that the doctrine of safe place was applicable to some of the facts of the case-that is, if they believed the evidence of plaintiff's witnesses on that point-and that if, in this respect, the defendant violated its duty, plaintiff was entitled to recover, unless the jury found that the risk was assumed by plaintiff's husband, or that his own negligence contributed to the injury. On the other hand, the jury were properly instructed that this "safe place" rule did not apply to such a case as that made by defendant's evidence. The appellant maintains that the doctrine of safe place is not applicable to the case as made because the place of work was temporary and transient in character, and plaintiff's husband was employed to do, and was engaged in, the very work of making safe for others to work in, a temporary place obviously dangerous, and known to be so by him. Appellant says that such was the nature of deceased's service, that he was employed as a timberman in defendant's mine, and, at the time of the injury, was engaged in the work of placing in a stope stulls for the very purpose of making its walls safe and preventing the rock and earth thereof from falling. The learned counsel for appellant unqualifiedly assert that the evidence is uncontradicted to this effect, and that, such

being the case, the jury should have been instructed, as matter of law, that the doctrine of safe place did not apply, and that the defendant had voluntarily assumed the risk of his employment, and, as the evidence showed that he was as well informed of the dangerous character of the place in which he was working as the appellant itself, a nonsuit should have been granted. The difficulty with this contention is that the evidence is seriously in conflict as to all these particulars. It is true, as appellant says, that the deceased was employed as a timberman, and some of the evidence tended to show that the work which he was prosecuting at the time of the accident was, at least in some measure, for the purpose of making safe a dangerous place. Upon the other hand, there was evidence just as positive that placing stulls in the stope was for the purpose of a foundation upon which to place lagging for a floor or support upon which workmen might stand in pushing on the stope-which was intended to be as permanent as the stope itself-and as a receptacle for rock and earth which was broken down in the prosecution of the work of stoping out ore. In other words, there was evidence to sustain both the theory and claim of the plaintiff and that of the defendantevidence tending to establish a case analogous to the class of cases well represented by City of Greeley v. Foster, 32 Colo. 292, 75 Pac. 351; Finalyson v. Utica M. & M. Co., 67 Fed. 507, 14 C. C. A. 492; C., C. & I. Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251; Sampson M. & M. Co. v. Schaad, 15 Colo. 197, 25 Pac. 89, in which the "safe place" doctrine is held not to apply; and also that class of cases represented by Faulkner v. Mammoth M. Co., 23 Utah, 437, 66 Pac. 799, in which it is pertinent.

An examination of the instructions shows that the court fully and properly instructed the jury upon both of these theories, and certainly those given upon the supposition that defendant's evidence is true were as favorable as could be asked. Indeed, defendant's objections to the charge given are not that the separate instructions are wrong, if the facts to which they are legally applicable were present, but that they are not germane to the evidence actually produced in the case, and therefore constitute prejudicial

But, as we have seen, the evidence was in hopeless conflict, and the instructions of the court bore upon the theories of both parties to the case in support of which there was some evidence. It is unquestionable that the evidence is in irreconcilable conflict, and we might, for our present purpose, even go further and suggest that the jury might have found abundant reason for a verdict in accordance with the evidence of defendant. The difficulty with its case, however, is that the jury, under proper instructions, rejected its evidence and saw fit to believe the testimony of plaintiff's witnesses.

The contention that whatever may have

neen the orders of defendant's foreman to deceased to work in this place, and irrespective of his assurance that it was safe, is immaterial because the foreman was only a fellow servant, we do not think is well taken. The foreman's testimony was that he had entire charge, and was overseer, of the work of timbering in the mine, and was in full control of the timbermen. We are of opinion that this was a distinct department of work, and therein such overseer was the representative of the defendant itself.

The testimony is so conflicting as to the condition of the stope where the injury occurred, as to its being safe or dangerous, and as to deceased's knowledge of it, that no use ful purpose would be subserved by considering it in detail. We merely remark that, while there was positive testimony that the place was obviously known to be dangerous, and that deceased, an experienced miner, was as much aware of it as was defendant itself, and voluntarily entered upon the work and assumed the risk after being warned of the danger; on the other hand, there is testimony that the deceased first saw and worked in this place on the day of the injury, that the danger was not obvious, although there were some indications that it was not entirely safe which had been communicated by deceased to defendant's overseer, and the latter, after a personal examination which he then made and from previous knowledge and inspection of the stope, and with fuller and more complete knowledge of the character of the ground in which it was being run, assured deceased that the place was perfectly safe, in relying upon which the latter was justified, and that there was no danger of the falling of rock or earth from the walls of the stope, from which later the particular rock fell which crushed him. In this state of the evidence, we do not see how the court could have done otherwise than charge, as it did, that the doctrine of safe place was applicable to the case as made by plaintiff's witnesses. Perceiving no prejudicial error in the record, the judgment is affirmed.

Affirmed.

GABBERT, C. J., and STEELE, J., concur.

(37 Colo. 431)

CRIPPLE CREEK MINING CO. v. ESTEB. (Supreme Court of Colorado. July 2, 1906.) Rehearing Denied Dec. 3, 1906.)

Appeal from District Court, Teller County; Louis W. Cunningham, Judge.

Action by Paul W. Esteb against the Cripple Creek Mining Company. From judgment for plaintiff, defendant appeals. Affirmed.

Wolcott, Vaile & Waterman and H. H. Dunham (Wm. W. Field, of counsel), for appellant. Stimson & Smith and James J. McFeely, for appellee.

CAMPBELL, J. This action for the recovery of damages for personal injuries caused by defendant's negligence was submitted to the same jury that tried the case of Cripple Creek M. Co. v. Brabant, 87 Pac. 794. The plaintiff's injury was inflicted at the same time, the issues in the two actions were substantially the same, and the evidence identical. The same questions of fact and law are involved in the two cases. The ruling there is controlling here, and accordingly the judgment in this case is affirmed. Affirmed.

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(Supreme Court of Colorado. July 2, 1906. Rehearing Denied Dec. 3, 1906.)

1. CRIMINAL LAW-PROOF OF CORPORATE EXISTENCE-SECONDARY EVIDENCE.

On a trial for larceny, it is not necessary to produce the articles of incorporation to prove the corporate existence of the corporation from which the goods are alleged to have been stolen, but the incorporation may be proved by reputation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 884.]

2. SAME-SUFFICIENCY OF EVIDENCE-REVIEW. Where, on a trial for the larceny of the goods of an alleged corporation, the question of the insufficiency of the proof of the existence of the corporation was not raised by motion to discharge at the close of the people's case, or by motions for a new trial or in arrest, the question cannot be considered by the Supreme Court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2680.]

3. LARCENY-IDENTIFICATION OF GOODS STOLEN-EVIDENCE-QUESTION FOR JURY.

Evidence, on a trial for larceny of the goods of a corporation, examined, and held that the question whether the goods found at or near the home of accused were identified as the goods of the corporation was for the jury. 4. SAME-ADMISSIBILITY.

Where, on a trial for larceny, it was shown that certain goods answered the general description of the goods stolen, it was proper to permit a witness to state that he found the goods in the trunk of accused.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, § 144.]

5. CRIMINAL LAW-EVIDENCE-REBUTTAL.

Where, on a trial for larceny, accused undertook to explain his possession of a gun found with the goods alleged to have been stolen, and testified that the gun was his own, and that he had owned it for four years, it was competent for the state to prove in rebuttal that the gun had been stolen a few weeks before the arrest of accused.

6. SAME ADMISSION OF EVIDENCE — PREJUDICIAL ERROR.

On a trial for larceny, the admission of the statement of a witness that he went to the home of accused, and that before he came there he came in contact with other persons who were on their way in search of goods supposed to, be at the home of accused that should not have been there, was not prejudicial to accused; the statement being so indefinite that it could not be said that the witness was permitted to state that accused was thought to have been guilty of stealing other goods.

7. SAME-EVIDENCE-INSTRUCTIONS.

Where, on a trial for larceny, the court admitted in evidence only the goods positively identified and described in the information, and instructed the jury properly as to the goods alleged to have been stolen and exhibited in evidence, accused could not complain that the court did not limit the goods exhibited in evidence to the goods described in the information and alleged to have been stolen, but allowed the jury to go outside of the issues.

8. SAME-REASONABLE DOUBT-INSTRUCTIONS. An instruction, on the subject of reasonable doubt, that if the jury believe as men their oath imposes on them no obligation to doubt where no doubt would exist if no oath had been administered, was proper.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14. Criminal Law, §§ 1904-1922.]

9. SAME-VERDICT-SUFFICIENCY.

An information charged burglary and larceny. The jury found accused guilty as charged and found the value of the goods stolen. Held that, as the offenses were of the same grade, the verdict was sufficient as a verdict finding accused guilty of larceny.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2099.1

10. SAME- NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

Several persons were tried for burglary and larceny. The jury found them guilty of larceny. One of them. in support of a motion for new trial in behalf of the others, made an affidavit in which he confessed to the burglary and the larceny, and averred that he committed the crimes without the knowledge of the others. The others filed affidavits alleging that they had no knowledge of the commission of the offenses, and did not know until the trial that their codefendant was guilty. Held, that the motion was properly denied because it could not be said that the new evidence ought to produce a different result.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2336.]

Error to District Court, Mesa County; Theron Stevens, Judge.

Warren Perry and others were convicted of larceny, and they bring error. Affirmed. Carnahan & Van Hoorebeke, for plaintiffs in error. N. C. Miller and W. R. Ramsey, for the People.

STEELE, J. Separate informations were filed against each of the defendants; one charging him with having feloniously and burglariously broken and entered the shop and storehouse of the W. F. White Mercantile Company, a corporation, etc., with intent to commit larceny, and another charging him with having, on the same day, feloniously stolen, taken, and carried away various articles of personal property, "of the goods, chattels and personal property of the W. F. White Mercantile Company, a corporation under the laws of the state of Colorado." The cases were consolidated for trial, and the defendants were convicted and sentenced to a term in the penitentiary.

The verdict, upon which the conviction was had, is as follows: "State of Colorado, County of Mesa-ss.: In the District Court. The People of the State of Colorado v. George Perry, Warren Perry, Ben Perry, and Andrew Perry, Defendants. We, the jury in

the above-entitled cause, do find the defendants guilty as charged in the information. We further find the value of the goods and property taken to be the sum of seventy dol

W. W. Wilson, Foreman." After the trial, and before the filing of the motion for a new trial, the defendant Andrew Perry made an affidavit in which he said that he alone committed the burglary and larceny complained of. The writ of error was issued on behalf of but three of the defendants.

The second assignment of error relates to the reception of testimony over defendants' objection. The witness W. F. White was asked if he was president and manager of the W. F. White Mercantile Company on the 21st day of November, 1904. The objection to this question was that "it does not call for the best evidence, and for the reason that there is no evidence showing that there is such a firm or corporation as the W. F. White Mercantile Company." The following was propounded to the witness Cropsey: "Q. I will ask you if on November 21, 1904. your company was dcing business in this county and state as the W. F. White Mercantile Company?" This was objected to because not the best evidence. The objection to this testimony was properly overruled. In criminal cases it is not necessary to produce the articles of incorporation for the purpose of proving the corporate existence of a concern from which goods are alleged to have been stolen, but the incorporation may be proved by reputation. proved by reputation. It is now claimed that there was no proof of the existence of the W. F. White Mercantile Company, a corporation, alleged in the information as the concern from which the goods were stolen. and that the defendants were entitled to a new trial because of such failure of proof. If the question had been presented to the trial court and an adverse ruling given, we should probably direct a new trial; but nowhere was the point made that it was not shown that the W. F. White Mercantile Company was a corporation. Advantage of this might have been taken by motion to discharge at the close of the people's case, by motion for a new trial, or by motion in arrest of judgment; but, as the question was not presented, we cannot consider it here.

Subdivision 5 of plaintiffs' second assignment is as follows: "In admitting testimony of the witness Cropsey as to the existence of the corporation of the W. F. White Mercantile Company, it not being the best evidence." From this it would seem that counsel was of opinion that the existence of the corporation had been established by secondary evidence. We are of opinion that the testimony did not show the existence of a corporation or of a concern doing business as a corporation, as required by the decision in Miller v. People, 13 Colo. 168, 21 Pac. 1025; but, as the objection to this testimony was properly overruled, we must hold that there is no merit in plaintiffs' contention.

ing to the White Mercantile Company, but were not identified as belonging to the company. The defendants undertook in defense to show how they obtained possession of the goods. The state introduced witnesses in rebuttal to contradict the defendants' witnesses. It is claimed that the testimony proved another larceny. We are of opinion that the testimony was competent and relevant, even though it did prove another larceny. One of the defendants testified that one of the guns found on the ranch was owned by him, that he had owned it for four years, that the man of whom he bought it had gone to Idaho. In rebuttal, a witness was permitted to testify that his store was burglarized during the month of November, a few weeks before the defendants were arrested, and that the gun was taken from his store at that time. This testimony we regard as entirely proper in rebuttal.

Witnesses had testified to having made a search of the premises where the defendants resided, and to having found two overcoats in a creek near their house. A bundle of new socks and a box of cartridges were found in a trunk belonging to one of the defendants, and several rifles were found in a seamless sack buried in a pile of stone near the house. The rifles were positively identified as the property of the W. F. White Mercantile Company. One of the persons connected with the store testified with reference to the overcoats: "This overcoat, marked People's Exhibit J,' would be pretty hard to identify. It is one of the stock of overcoats-I mean to say that it is one of a stock from which we missed one that morning. The manufac-| turer's tag has been torn off. It does not look to me that it is an overcoat that has been worn. *** This overcoat, marked 'Exhibit K'-we missed an overcoat of that same pattern from our store that morning. I could not say positively that that is our coat, because the tags are torn off. I have examined it carefully for tags." Another witness, when shown the overcoats, said, when asked if they belonged to the store: "I believe they came from there." This, we think. was a sufficient identification to have submitted the question to the jury. One of the witnesses said: "My attention was called to a place that day where the overcoats were found." The defendants' counsel objected, "for the reason that no overcoats are charged in the information." The district attorney then said: "I want to show what the defendants did. I am not going to identify the overcoats." The objection was then overruled. The objection was properly overruled. The information charged that two overcoats had been stolen by the defendants. Moreover, they were identified with sufficient certainty to have submitted the question of their ownership to the jury. The testimony show-ground that, in our opinion, it was not preju

ed that certain articles were missed from the store of the White Mercantile Company. Many articles of the same kind were found concealed on or near the ranch of the defendants. Certain of the articles were positively identified as being the property of the mercantile company, other articles could not be positively identified. We think it was for the jury to determine from all the facts and circumstances whether the property found on the ranch of the defendants had been stolen.

The defendants objected to testimony regarding socks found in the trunk of one of the defendants because the socks had not been identified. We think the objection was properly overruled. The socks were found in a defendant's trunk. They answered the general description of socks taken, and it was proper for the witness to state where they were found. In one or two instances witnesses were permitted to testify in rebuttal concerning certain articles found at the time search was made of of defendants' ranch. These articles were found with goods belong

One of the witnesses stated: "I went to the Perry place on the morning of the 29th by request, and before I came there I came in contact with probably a dozen other parties that were on their way, and we proceeded up Mesa Creek canon and began to search for goods, hides, heads, feet, etc., of animals that were supposed to be there and that should not have been there." Counsel for defendants objected to the latter part of this statement, and moved that it be stricken, and the objection and motion were overruled. The witness was told by the district attorney to state "what you did, without referring to what anybody said," and in response he made the above statement. Counsel did not state what his objection was, nor state, except in a general way, what portion he desired stricken, and the ruling of the court might be sustained upon the ground that proper objection was not made; but we shall sustain the ruling of the court upon the

dicial error to permit the statement to stand. The statement is so indefinite that we are unable to say that the witness was permitted to state over objection that the defendants were thought to have been guilty of cattle stealing.

Instructions Nos. 3, 4, and 6 were objected to, and when given exceptions were duly saved. The objection to instruction No. 3 is that the court did not "limit the goods exhibited in evidence to the goods alleged and described in the information and alleged to have been taken and stolen, and therefore allows the jury to go outside of the issues involved in this case." The objection is not well taken. The court admitted in evidence only those goods positively identified and described in the information, and instructed the jury properly as to the "goods alleged to have been stolen and exhibited in evidence." In instruction No. 4 the following sentence is found: "If you believe as men your oath imposes upon you no obligation to doubt where no doubt would exist if no oath had been ad

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