No. 5 is objected to because the judge directed the jury to find for the plaintiff if it should find that the injuries were occasioned by the negligence of the defendant; and it is insisted that by the use of the word "occasioned," instead of the word "caused," "the jury were left without warning, guidance, or limitation in fixing liability for appellee's injury." The judge undoubtedly used the word “occasioned" as the synonym of "caused," and we are satisfied that the jurors were not thereby misled. It is also urged that this instruction should have included the question of assumption of risk, but the court properly instructed the jury upon this question in instruction No. 10.

In instruction No. 6 the jury was told that, in estimating the plaintiff's damages, it "should also consider the nature of the injuries suffered, as to whether they are likely to prove permanent, or temporary only." The following appears in the bill of exceptions: "The defendant objected to the giving of instruction No. 6 of the instructions given by the court to the jury, and especially objected to the giving of that portion thereof as follows: As to whether they are likely to prove permanent or temporary only'; and, before said instruction was given to the jury, the defendant objected to the use of the word 'likely' in connection with the words 'to prove permanent, or temporary only.'" Although much space is devoted to a discussion of questions raised here for the first time, we shall consider only the objection called to the attention of the trial court. It is insisted that, by the use of the word "likely," "the jury are permitted and encouraged to indulge in conjecture and speculation in determining the extent of appellee's injuries; that the law forbids this, and requires that their finding as to the future or continuing consequences shall be confined to such only as the evidence shows to be reasonably certain to result." We do not think the jury was encouraged to indulge in conjecture by this instruction. It was told, in assessing damages, to consider the nature of the injuries, as to whether they were likely to prove permanent, or temporary only. The definition of "likely" given by the Standard Dictionary is "in all probability." There is always more or less conjecture as to whether injuries are permanent or temporary, and the determination of the question is usually based upon opinion testimony; and, while we cannot recommend "likely" or "in all probability" as interchangeable, or synonymous with the words "reasonably certain," the difference is but slight, and we do not feel warranted in reversing the case because of the failure to use the words "reasonably certain" in this instruction. Moreover, the plaintiff's injuries consisted mainly in the loss of his leg. This is a permanent injury; and, having seen the condition of the plaintiff, the jury did not indulge in speculation as to the permanent injury of the leg.

The appellant contends: (1) That there was no negligence on the part of the defendant; (2) that the conditions existing in the fourth level were not the proximate cause of the appellee's injury; (3) that the negligence if any, which caused appellee's injury, was the negligence of an independent contractor; (4) that the injuries were caused by the negligence of a fellow servant of the appellee; (5) that the appellee knew the condition of the fourth level when he accepted employment from the appellant, and that he assumed the risk of any injury which he might suffer resulting from the known condition. The determination of these questions will dispose of all other objections to instructions.

In reference to the fourth and fifth, it is sufficient to say that the injuries were not caused by the negligence of a fellow servant, and that the appellee did not know the condition of the fourth level, or, rather, that there was no testimony to show that the appellee know of the condition of the fourth level.

The law required the company to provide for its employés a reasonably safe place in which to perform their work. The testimony is silent as to who constructed the tram in the level, or who erected the barrier at its mouth. The testimony shows, however, that the level, when turned over by the company' to the lessee, was in the same condition in which it was in the day of the accident. The company, therefore, is responsible for the condition of the level.

The testimony of the witness Leffingwell as to the grade of the track in the level is not disputed; in fact, defendant's witness corroborates him in saying that the grade was unusual in some places. According to Leffingwell's testimony, the distance from the point where the ore was loaded on the car to the shaft is about 1121⁄2 feet. The level falls toward the shaft to the amount of 22 feet in its length. The grade is greater in some places than in others. "From a point five feet from the face to a point twenty-five feet from the face, the track falls nine inches in elevation." The experiments made by the defendant's witnesses demonstrated that a loaded car, if started, would run into the shaft. The witness Funk testified that the car which was precipitated into the shaft was not started or pushed by him. The facts are that, whether the loaded car was started by human agency or by the force of gravity, it started; and, there being no barrier of sufficient strength to stop it, the car and contents were thrown into the shaft, and fell to the bottom, killing two of appellant's employés and seriously injuring the appellee. We are of opinion that the company, in maintaining a track with the excessive grade which is shown to have existed in this level, and in not providing a barrier of sufficient strength to resist the force of a loaded car of ore running upon the track, was guilty of culpable negligence. The act

The

of maintaining a track with the excessive grade would not alone render the company liable for the injury in this case. A runaway car could be stopped by a sufficiently strong barrier at the mouth of the level. barrier provided was not for the purpose of preventing a car from running into the shaft, but to prevent the workmen from walking into it. The most ordinary foresight and prudence, it would seem to us, would have dictated some suitable protection at the mouth of the level. The most cautious man might lose control of a loaded car in a level such as the fourth level of this mine, and there was a breach of the positive duty of the company in not guarding against such an

Occurrence.

case.

Ac

But counsel contend, assuming the company to have been negligent, that the conditions existing in the fourth level were not the proximate cause of appellee's injuries, and that the negligence which caused appellee's injuries was that of an independent contractor. We shall consider these as one proposition. Wharton, at section 134 of his work on Negligence, says: "I am negligent on a particular subject-matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces." This section from Wharton is quoted by counsel in their brief as sustaining the position that an independent contractor had caused the accident, and that the company, for this reason, was not liable. cepting this as a correct statement of the law, it cannot be applied to the facts in this The facts are that this company was engaged in sinking a shaft on its Orpha May mine; that it employed the plaintiff to work in the bottom of the shaft; that it had leased the fourth level of its mine, about 700 feet above the place where the plaintiff was working, with the track as therein constructed; that the company, as part of the conditions of the lease, was to hoist the ore from the mouth of this level to the surface; that the track in the level was laid upon an excessive grade; that no barrier was erected at the mouth of the level to prevent the cars from running into the shaft; that a loaded car weighing nearly a ton fell down the shaft and upon the appellee; that, as found by the jury, the employé of the lessee could not, by the exercise of ordinary care, have managed the car with safety to the company's employés; that the car escaped from the employé of the lessee, and that he was unable to prevent its escape by the exercise of ordinary care. Here the causal connection was not broken. There was no interposition of independent responsible human agency. No third person, moving independently, came in, and either negligently or maliciously so

acted as to make the negligence of the company injurious; but the injury was the natural consequence of the wrongful act of the company, and "was such as might or ought to have been foreseen, in the light of the attending circumstances." Mr. Justice Strong, in Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, has this to say: "The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments; as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement; or as in the oft-cited case of the squib thrown in the market place. 2 W. Bl. 892. The question always is, was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted the rule is difficult of application; but it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." This court, in Investment Co. v. Rees, 21 Colo. 445, 42 Pac. 42, quotes with approval the following: "Negligence may, however, be the proximate cause of an injury of which it is not the sole or immediate cause. If the defendant's negligence concurred with some other event other than the plaintiff's fault to produce the plaintiff's injury, so that it clearly appears that, but for such negligence, the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible even though his negligent act was not the nearest cause in the order of time." And the following: "The act of a third person intervening, and contributing à condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise." In the case cited, the defendant was the owner and had full control of an elevator operated for the use of its tenants and patrons. A trespasser opened the door of the elevator cage and left it standing open. The

the open door on the ground floor. The plaintiff, believing the car was at the ground floor, walked through the door and fell to the basement. The court said: "It was the duty of the defendant, in operating the elevator in question, to exercise the utmost care and diligence, and to provide and maintain proper and secure fastenings to the doors opening into the elevator way that could not be opened or controlled from the outside. Therefore the court was correct in saying that it was 'wholly immaterial whether such door was opened by some third person or not, provided that such accident could not have happened but for the negligence of the defendant in keeping and maintaining the fastenings to its elevator door'; for, had it performed its duty in the premises, such interference by a third person would have been impossible; hence its negligence necessarily concurred in, and constituted an essential factor in, causing the injury. It is well settled by the adjudged cases, where an injury is the result of the combined negligence of the defendant and the negligent or wrongful act of a third person, for whose act neither the plaintiff nor the defendant is responsible, the defendant is liable when the injury would not have happened except for his negligence." Guided by these authorities, we can arrive at no other conclusion than that the proximate and efficient cause of the injury was the negligence of the defendant, and that it should be held liable to the plaintiff for the damages shown to have been sustained.

It is urged that the verdict is excessive. Counsel say that $15,000, loaned at 8 per cent. interest, will yield the plaintiff an income in excess of the amount he has ever earned or is able to earn, without touching the principal,-this without the slightest physical or mental exertion. This company, by its culpable and wanton negligence, has made a physical wreck of its employé, and it would now enforce this cruel rule against him by showing that the amount of the verdict at interest will yield him more than he could earn if he were in perfect physical condition. But, if his damages were measured by this unjust rule, the verdict is not excessive. In the first place, he cannot, "without making the slightest mental or physical exertion," cause his capital to yield 8 per cent. interest. After the payment of expenses and taxes, he will do well if he receives a net income of 4 per cent. on his money,-but little more than half of the amount he could earn before the injury. So that eliminating entirely the question of damages for the loss of his leg, the damages for the fracture of his skull, the amount of the verdict, if placed at interest, will return to him barely sufficient to live upon. The record does not disclose the exact nature of the appellee's injuries. The com

the testimony of the plaintiff in the bill of exceptions is that the foot was amputated. During the oral argument, the attention of counsel for appellee was directed to these apparently conflicting statements, and he asserted that the complaint correctly set forth the extent of the injuries, and that the leg was amputated above the knee. But, whether the leg was amputated above or below the knee, the jury saw the physical condition of the plaintiff, and, being properly instructed, awarded him the damages. "The law does not warrant us in disturbing the verdict, where no important error has occurred on the trial, unless the amount of damages allowed is so manifestly disproportionate to the injury received as to make it apparent that the jury were influenced by prejudice, misapprehension. or by some corrupt or improper consideration." Wall v. Livezay, 6 Colo. 474.

For the reasons given, the judgment is affirmed. Affirmed.

On Petition for Rehearing.

(July 5, 1902.)

PER CURIAM. In the petition for rehearing, counsel charge that we have determined "the nature and extent of appellee's permanent injury from matters dehors the record, and inconsistent with, and to a certain extent contradictory to, the evidence preserved in the record." Counsel are mistaken. At the trial the plaintiff testified: "My condition was that I had one foot crushed in such a way that it had to be amputated; I had thirteen cuts on my head, and my skull was fractured four inches, here. I have lost the use of that finger; and there is a cut across my knee that there was fifteen stiches taken in. My limb, from some unknown cause, gets very sore, and I cannot work on it; in fact, I am not able to work, anyhow. When trying to rise suddenly or turn around, I become dizzy, and have to get hold of something to stand up; otherwise I would fall over, and I have fallen over several times." It was from this testimony that we determined the nature and extent of plaintiff's injuries, and not from the allegations of the complaint and the statements of counsel. We do not regard a verdict for $15,000, as damages for injuries such as the plaintiff by his testimony is shown to have sustained, so excessive as to warrant the presumption that it was the result of oppression or prejudice. In the opinion it is stated that "the plaintiff's injuries consisted mainly in the loss of his leg." This is, perhaps, an inaccurate description of the plaintiff's injury, but our judgment that the verdict was not excessive was based upon the testimony of the plaintiff. The petition for rehearing is denied.

(30 Colo. 8) PEOPLE ex rel. SALOMON v. COURT OF APPEALS.

(Supreme Court of Colorado. June 2, 1902.) APPEAL-DECISION OUTSIDE OF ISSUES-JURISDICTION-CONTRACTS-CONSTRUCTION.

1. Plaintiffs claimed a vendor's lien, and on appeal the appellate court decided plaintiffs were not entitled to a lien, and decided there had been no sale. Held that, though the pleadings had not raised the question whether there was a sale, the decision as to there being no sale was not an excess of jurisdiction, as without the issue; the issue being whether plaintiff was entitled to the lien.

2. It was contended that the parties had treated the contract in suit as one of sale, and that hence the court of appeals had erred. in construing it otherwise. It was referred to in the pleadings as one providing for the payment of a "purchase price,' but it was not shown that it was anywhere conceded to have been a transaction for the passage of title. Held, that the contention was of no merit.

3. The authority of the court of appeals to construe a contract and determine whether it is a contract of sale is not limited by any admission of the parties as to the object of the contract.

Certiorari by the people, on the relation of Adolph Z. Salomon, as executor of the will of Fred Z. Salomon, to review a decision of the court of appeals (67 Pac. 25) in an action by the executor and others against Frederick L. Martin. Writ denied.

E. T. Wells, John C. Thompson, and John H. Chiles, for relator. Gunnell, Chinn & Miller, J. C. Helm, Colburn & Dudley, and C. M. Campbell, for respondent.

GABBERT, J. This is an original proceeding in certiorari instituted by relator for the purpose of bringing here for review the judgment of the court of appeals rendered in the case of Salomon v. Martin, 67 Pac. 25. Relator bases his right to such review upon two grounds: (1) The court of appeals rendered a judgment in the cause mentioned without its jurisdiction; (2) that in rendering such decision it refused to be guided or controlled by the law applicable to the case, as declared in the previous decisions of this court. Relator, with others, originally brought an action in the district court of El Paso county for the purpose of establishing a vendor's lien upɔn certain real estate superior to any lien on the same premises of those against whom the action was commenced. The trial court held that the parties bringing the action were not entitled to the lien claimed, and this judgment was affirmed by the court of appeals. In support of the proposition that the latter court rendered a judgment without its jurisdiction, counsel for relator assert that, in the pleadings filed by the parties who commenced the action in the district court, it appears the right to the lien claimed was based upon a contract entered into between the owner of the premises and other parties whereby such owner agreed to sell the premises to these parties; that this contract was treated in the complaint as one of sale; and that the defend

ants recognized by their pleadings it was of this character. Among other reasons assigned by the court of appeals why a vendor's lien was not established, it appears that court held the contract in question was not one of sale, and hence, it is argued by counsel for relator, the court decided the case upon an issue which was not made, thereby deciding a matter which was not submitted to it, and therefore exceeded its jurisdiction by rendering a judgment not within the issues. The premise is wrong, and it follows, as of course, that the conclusion deduced from an application of a correct proposition of law is also erroneous. It is true, a court has no power to render a judgment not within the issues. Whether it has exceeded its authority in this respect.is not determinable alone from the controverted or uncontroverted questions of fact which may be involved in any case, but from the object of the action. There may be many collateral issues involved which go to make up the main issue between the parties, but the determination of these collateral matters, although erroneous, or what matters of this character are involved, is not without the jurisdiction of the court. If the judgment pronounced is responsive to the relief sought in the action, even though erroneous because some collateral questions were not correctly determined, or is based upon an issue which in fact is not involved, it is not one without the jurisdiction of the court pronouncing it. The real contest between the parties was whether the plaintiffs in error were entitled to a vendor's lien superior to any lien of the defendants in error. In determining this question the vital point may have been whether the contract was or was not one of sale from the owner of the premises to the other parties to this contract. That the court may have held this contract was not one of sale, even though there was no such issue made by the pleadings, was not without its jurisdiction, for this was but a collateral question, upon which the right of the respective parties may have depended; and whether this question was correctly or incorrectly decided, or was an issue in the case, was a matter which the court of appeals had jurisdiction to determine, and its authority in this respect was not affected by the correctness or incorrectness of its decision of this question. The ultimate issue between the parties was the right of the plaintiffs in error to a vendor's lien; and, when it was decided that they were not entitled to such lien, that was a judgment, even if incorrect, because of an erroneous construction of the contract upon which it was based, or contrary to that given by the parties themselves, which was within the issues of the case submitted for its determination, and therefore within its jurisdiction. People v. Court of Appeals, 27 Colo. 405, 61 Pac. 592, 51 L. R. A. 105; Id., 28 Colo. 65 Pac. 42.

It is urged that the court of appeals refused to be guided or controlled by the law

as laid down in the prior decisions of this court, because, in view of the fact that the parties to the action treated the contract as one of sale, the court was bound by that construction. In support of this proposition we are cited to Mining Co. v. Tierney, 5 Colo. 582, in which it is held that where the language used by parties to a contract is indefinite or ambiguous, and therefore of doubtful construction, the interpretation by the parties themselves is entitled to great, if not controlling, influence. Here, again, the premises assumed by counsel, that the parties to the action by their pleadings treated this contract as one of sale, are not borne out by the record. It is referred to in the pleadings as one which provided for the payment of what is designated a "purchase price" to the owner from the parties with whom he entered into this agreement, but nowhere in the pleadings or in the briefs of counsel was it conceded by the parties that this contract was one of sale, in the sense that its purpose was to transfer title to the premises from the owner to the other parties to it. It is apparent from the opinion of the court of appeals that the question of the character of this contract was carefully considered. The learned judge who wrote the opinion, in considering this subject, says, in substance: It is true that this agreement is styled one to sell, and mentions the consideration to be paid, "purchase price"; but an examination of its terms and conditions, which alone determine its character, conclusively discloses that a sale of the real estate from the owner to the parties with whom he entered into this agreement was not contemplated, in that he was to transfer to them the title. The ownership of property sold passes from the vendor to the vendee, but in this contract the intent of the parties was that the owner should convey to other persons. The parties with whom the owner contracted simply obtained the right to control and handle the premises, and the right to retain a certain percentage of the net proceeds, accounting for the remainder to the owner,-and said (quoting from the opinion): "What the contract calls 'purchase price' was simply the consideration to be paid by them for the right to control and handle land, and have an interest in the proceeds of sales." The decision of the court, in so far as it was based upon this contract, is well stated in the syllabus to the case, which reads: "Where three persons are jointly and equally interested in the unpaid purchase price of land, one of them cannot claim and enforce a vendor's lien therefor." Whether or not the construction of this contract as given by the court of appeals was correct, or whether the conclusion with respect to the rights of the parties, as dependent upon this construction, was correct, is not a matter which we can consider in this proceeding. It was within the authority of the court of appeals to construe this contract, and apply the princi

ples of law which, in its judgment, appeared applicable, and its authority on these subjects was in no manner limited by any admissions of the parties as to what the object of this contract was.

The writ is denied, and proceedings dismissed. Writ denied.

CAMPBELL, C. J., not participating.

(30 Colo. 147)

FISHEL v. GODDARD et al.

(Supreme Court of Colorado. April 7, 1902.)

-

CORPORATIONS CREDITORS DIRECTORS PURCHASE OF CORPORATION PROPERTY BY

DIRECTORS-LIABILITY-PLEADING.

1. Where a director of a corporation purchases its stock of merchandise at a mortgage sale, he is liable to a judgment creditor whose claim was in existence at the time of the purchase for profits made, measured by the value of the goods less the sum paid.

2. The director of a corporation purchased its stock of merchandise at a mortgage sale for $2,000, and, in a suit against him by a judg ment creditor of the corporation to hold him liable for profits made on the transaction, one of the directors testified that goods purchased were worth $30,000. There were introduced two trial balances, dated a few weeks prior to the sale, in which the property was stated to be worth over $25,000; and there appeared to have been no change in the stock, unless it were increased, between that time and the time of sale. Defendant testified the stock was not worth more than $7,000 or $8,000. Held, that a finding that the stock exceeded the purchase price was warranted.

3. A supplemental complaint alleged that, on a date subsequent to the purchase, plaintiff procured a further judgment against the corporation, which was returned nulla bona, and prayed that the allegations in such respect might be taken in connection with the allegations in the original complaint contained therein. Held, that a contention that the supplemental complaint failed to state a cause of action, in that it did not appear that the indebtedness was in existence when the purchase was made, was of no avail; such fact appearing from the original complaint.

4. On cross-examination, defendant was required to produce his books of account. It appeared that prior to the trial a notice had been secured for the production of the books. Held, that whether the court erred in requiring the defendant to produce his books, or whether the notice was sufficient upon which to base an order, there was no reversible error.

5. On cross-examination, defendant was examined as to what his books showed with respect to the amount he had realized from the stock. Held that, defendant having stated that the stock was not worth more than he paid, the examination was proper, to test his knowledge and the correctness of his statement, and to show as a fact what had been realized.

6. There being a conflict in the testimony regarding the value of the stock, it was entirely proper, as corroborative testimony, for the court to consider what sum had been subsequently realized from the goods, for the purpose of determining their value.

7. A contention that the court did not find what the goods were worth at the time of sale was of no avail; it not appearing that the value found was of any other date than that of sale;

1451.

1. See Corporations, vol. 12, Cent. Dig. §§ 1384,