Volume 37 — Colorado Reports

<p>1. Bills and Notes — Indorsed Before Delivery — Liability of Indorsers.</p> <p>A director of a corporation who indorses his name upon notes, before delivery, issued by the corporation, without having any interest in the proceeds derived, therefrom and who is promised protection from liability by the president of the corporation, is merely a surety. — P. 7.</p> <p>2. Principal and Surety — Release of Surety by Principal.</p> <p>Where a creditor has in his hands, or under his control, property of the debtor which can be applied to the satisfaction of the debt, the surety for such debt has the right to have the property so applied, and any 'affirmative act of the creditor which prevents such application releases the surety to the extent he is injured. — P. 7.</p> <p>3. Bills and Notes — Principal and Surety — Diversion of Security —Release of Surety.</p> <p>The holder of notes, on which defendant was a surety, brought suit upon them and attached stock belonging to the maker, which was pledged to secure another claim against the latter which had been purchased by the former; and pursuant to an agreement with such maker, he then foreclosed the lien created by the pledge, purchased the stock himself, and later obtained judgment in the attachment suit and bought in on execution sale, at a nominal price, the debtor’s equity of redemption in the pledged stock. The maker of the note had agreed to save the surety harmless,' and the stock which the holder had thus acquired was ample to satisfy both the claim for which it was pledged and the amount of the note. Held, that as the holder by his acts had obtained control of property which the surety was entitled ta have applied to the payment of the notes, and he had thus prevented the surety from being subrogated to the holder’s rights in such property, the surety was released from liability. —P. 8.</p> <p>4. Appellate Practice — Bills and Notes — Erroneous Theory of Case Below.</p> <p>Where an action against a surety was tried on the assumption,. by both parties and the court, that it was immaterial whether plaintiff, the holder of notes, had, in a prior transaction affecting property held as security for the payment of said notes, notice of the fact that the alleged principal was a principal, a judgment for plaintiff will not he affirmed on the ground that the record does not show that plaintiff had notice of the relationship of principal and surety. — P. 9.</p> <p>5. Bills and Notes — Principal and Surety — Pleading—Burden of Proof.</p> <p>Where a party to a note desires to interpose a defense based upon the ground that the relationship between another party to the note and himself is different from that exhibited by the note itself, he must ordinarily plead and prove this relationship, as well as knowledge on the part of the payee or holder of its existence, for the obvious reason that such defense is affirmative in its character. — P. 11.</p> <p>6. Appellate Practice — Judgment Based on Wrong Reason — . Prejudicing Rights of Parties — Question Raised for First Time on Appeal.</p> <p>A judgment may he affirmed upon a ground other than that which influenced the court, and should not he reversed merely because it is based upon a wrong reason. If, however, it appears that a wrong reason adopted by the trial court prevented the defeated party from properly presenting his case, or prejudiced his rights, then the error of the court should be corrected on review. Appellate courts should be careful to prevent injustice resulting from the affirmance of a judgment upon a question not presented to the trial court, or which it ignored, and which might have been avoided had attention been directed to it. A question raised for the first time on appeal is not favored. Hence, an appellate court should not ordinarily affirm a judgment which is erroneous, as tested by -the reasons assigned for its rendition by the trial court, upon a ground involving a question of pleading or fact not fully developed at the trial, and to which attention of neither court nor counsel was called, when its affirmance might result in a miscarriage of justice. — P. 13.</p> <p>7. Principal and Surety — Inaction of Creditor — Non-release of Surety.</p> <p>The mere omission of a creditor to issue execution on a judgment against the principal, and to sell the principal’s property, does not discharge a surety in the absence of a request by the latter to do so, as it is the affirmative acts of the creditor, with' respect to the property holden for the debt of the principal, which destroys the security, and not mere inaction, which is nothing more than an omission to enforce collection from the property pledged. — P. 15.</p> <p>8. Bills and Notes — Principal and Surety — Duty of Holder— Knowledge Subsequently Acquired.</p> <p>The duty of the payee of notes, holding security for the payment thereof, toward the surety, must be determined from his knowledge of the rights of the parties at^the time he acquired the notes and property, and his liability is not affected or enlarged by knowledge subsequently acquired respecting these matters. — P. 17.</p> <p>9. Principal and Surety — Practice in Civil Actions — Estoppel.</p> <p>Where a creditor and the principal debtor treated property as belonging to the principal, and entered into arrangements by which the creditor obtained title through such debtor to the property and received the proceeds thereof, and credited such proceeds upon the indebtedness, the creditor cannot assert as against the surety, that such property did not belong to the principal, in order to avoid the discharge of the surety because of the destruction of his right to be subrogated to the creditor’s rights in such property. — P. 17.</p>

<p> Error to the District Court of Logan County. </p> <p> Eon. E. E. Armour, Judge. </p> <p>Action by Cudabeck Griswold against Dixson Buclianan, substituted for A. G. Quest. From a judgment for plaintiff, defendant brings error.</p>

• Appeal from the District Court of San Miguel County. Hon. Theron Stevens, Judge. Action by Charles A. Smith, John E. Conn and V. St. John, on an adverse to the location of a mining claim by Piter Oberto. From a judgment in favor of plaintiffs, defendant appeals.

<p>1. Mines and Mining — Location of Claim — Order of Steps.</p> <p>The order fn which the various steps requisite to make a valid location of a mining claim are taken is immaterial, provided they are completed before the rights of third parties intervene. Therefore, a discovery, though made after staking and record, will inure to the benefit of the locator, but only as of the day of such discovery; provided, of course, that others have not previously acquired rights to the premises upon which such discovery is made. — P. 28.</p> <p>2. Mines and Mining — Adverse Suits — Nature and Purpose.</p> <p>An action in support of an adverse against an application for patent partakes of the nature of one in ejectment, but some of the rules pertaining to that character of action are modified. The prime purpose of such a suit is to determine, for the information of the officers of the land department, which, if either, of the parties thereto is entitled to be vested with the fee of the premises in dispute by purchase from the government. — P. 28.</p> <p>3. Mines and Mining — Adverse Suits — Notice of Application for Patent — Nature and Effect.</p> <p>The notices required to be given of an application for patent are, in effect, a summons to all adverse claimants, and the latter must assert their rights by filing an adverse within ’the sixty days’ publication of notice of application for patent in accordance with U. S. Rev. Stats., § 2325, and unless filed within that period, it will be conclusively presumed that none exists. —P. 29.</p> <p>4. Mines and Mining — Adverse Suits — Subsequent Discovery.</p> <p>The rights of an adverse claimant to a mining'location are limited to those existing at the time of filing his adverse; and if he had no claim then, he will not be heard to assert a right to the premises in dispute by virtue of one brought into existence thereafter; otherwise, he would be permitted to assert title to the disputed premises by virtue of rights other than those upon which his adverse is based. — P. 29.</p> <p>5. Mines and Mining — Adverse Suits — Practice in Civil Actions • — Pleading—Evidence.</p> <p>Where, in a suit in support of an adverse of a mining location; plaintiff was not entitled to the judgment in accordance with the facts existing at the time of- filing his adverse, defendants are not precluded .from, objecting to such judgment by the fact that the jury found there had been no discovery made by them on the claim on which their application for a patent was based, as otherwise plaintiff, by complying with U. S. Rev Stats., § 2326, would be entitled to a patent for the premises awarded by the judgment, to which from the record he is not entitled by virtue .of any adverse filed. — P. 30. '■</p>

Hon. Chas. C. Holbrook, Judge. . . On Rehearing. Proceeding by Gfeorge A. Carpenter, Christian Keck and Jobn Beiger for a decree authorizing the transfer of a portion of the appropriation or water belonging to a certain, ditch. Prom such decree, Moses Hallet appeals.

<p>Trusts and Trustees — Express Trust — Parol Agreement — Enforcement.</p> <p>A husband furnished funds for the purchase of lots and improvements thereon, the conveyance, without any evidence of fraud, being taken in the name of the wife under a parol agreement that the property should be held for their joint benefit. The defendant declining to recognize such agreement, the husband cannot enforce it, as parol evidence is not competent in this state to establish an express trust. — P. 37:</p>

Hon. Chas. C. Holbrook, Judge. Proceedings by Jacob Gredig and Fritz Botefnr for a decree authorizing the transfer of a portiofi of the appropriation of water belonging to a certain ditch. From such decree, Moses Hallet appeals.

Hon. M. 8. Bailey, Judge. Action by Milton Virden, as administrator of the estate of Nancy M. Bryan, deceased; against 'Alfred L. Hubbard and Clyde Clinton Hubbard, minors, and Lovell S. Bailey, guardian of tbe estate of said minors, and Adelbert C. Hubbard. From a judgment construing tbe will, administrator appeals.

<p> Appeal from the District Court of Fremont County. </p> <p> Hon. M. 8. Bailey, Judge. </p> <p>Action by William S. Jackson against E. L. Gumaer and A. E. Gumaer. From a judgment in favor of plaintiff, defendants appeal.</p>

<p> Error to the District Court of the City and County of Denver. </p> <p> Hon. N. Walter Dixon, Judge. </p> <p>Russell Boles was convicted of murder in the first degree. He brings error.</p>

<p>1. Public Highways — Establishment—Direct Attack.</p> <p>In an action to enjoin the obstruction of a public highway, a cross-complaint attacking the legality and validity of the proceedings establishing such highway is a direct attack on the action of the board of county commissioners in 'establishing it, as the right to attack a judgment for judicial infirmity or for fraud is not confined to the complaints — P. 58.</p> <p>2. Pleading — Demurrer—Admission of Allegations Weil Pleaded.</p> <p>A general demurrer to a cross-complaint admits all its allegations which are well pleaded. — P. 59.</p> <p>3. Public Highways — Establishment—Notice—Sufficiency.</p> <p>A notice of proceedings before the board of' county commissioners to establish a highway posted more than a mile from the proposed road, is not a sufficient compliance with Mills’ Ann. Stats., § 3934, requiring the posting of notices along the proposed néw road. — P. 59.</p> <p>4. Same — Pleading—Cross-complaint—Sufficiency.</p> <p>A cross-complaint attacking the validity of proceedings for the establishment of a public highway is sufficient, where the allegations that one of the notices, required by Mills’ Ann. Stats., § 3934, to be posted in the most public place along the road, was posted over a mile from the nearest point of the road, although it does not allege that the notices were posted in the most public places; nor is it necessary in such cross-complaint to allege fraudulent purpose in failing to post such notices, or that parties complaining did not see or read them, or that the parties had no notice of the proceedings. — P. 60.</p> <p>5. Same — Establishment by County Commissioners — Conclusiveness of Decree.</p> <p>A recital in the decree of the board of county commission'ers establishing a highway, that notices were duly posted according to law, is not coliclusive when a direct attack is made thereon. — 1?. 61.</p> <p>6. Equity — Grounds of Jurisdiction — Remedy at Law — Laches.</p> <p>Parties aggrieved by irregularities in the proceedings of county commissioners establishing a highway, are without remedy at law, by appeal, or certiorari; and one who, at all times, objected to an establishment of a highway through her premises, is not guilty of laches precluding her from having the proceedings vacated by a court of equity. — P. 61.</p>

<p>1. Practice in Civil Actions — Submission of Facts to Jury.</p> <p>Where the facts, though undisputed, are such that honest men may honestly differ as to the conclusions to be drawn therefrom, the matter, should be submitted to the jury. — P. 68.</p> <p>2. Practice in Civil Actions — Negligence—Question for Jury.</p> <p>Negligence in a particular case is generally a matter for the jury to determine, and it is always SO' when the measure of duty is ordinary and reasonable care. In such cases, the standard of duty is variable. — P: 69.</p> <p>3. Master and Servant — Duty of Master to Furnish Safe Place in Which to Work.</p> <p>An employer must exercise ordinary care to provide a reasonably safe place in which the employee may perform the services required of him. It is his duty to use diligence to keep his place in a reasonably safe condition, so that the servant may not be exposed to unnecessary'risks. The care and diligence required differ as circumstances differ, but in all cases it is such as a reasonably prudent man would exercise under like circumstances in order to protect, the persons of his employees from destruction or injury. — P. 69.</p> <p>4. Master and Servant — Duty of Master — Degree of Care in Furnishing Safe Place in Which to Work,</p> <p>A far higher degree of care is necessary in the case of an employer whose employees are far under ground, with but scant means of escape in case of danger, than where the employees are not subject to unseen dangers, or are in such a position that escape may be readily effected. The master is bound to use such care as circumstances %emand from a reasonably prudent man; and if he fails to do so, he is negligent. — P. 69.-</p> <p>5. Master and Servant — Duty of Master to Furnish Safe Place in Which to Work — Dangers Patent and Latent.</p> <p>It is the duty of the master to furnish a safe place in which the servant is to perform his labor. It must not alone be safe from such dangers as are patent, but also from such' as are latent; not alone from those in the place, but from such extraneous matters as menace its safety, and which could he ascertained upon reasonable inquiry. — P. 70.</p> <p>6. Master and Servant — Mines and Mining — Duty of Master to Furnish Safe Place in Which to Work.</p> <p>A mining company, knowing of the existence of water in a neighboring mine in such quantities as to become dangerous to its employees, is in justice bound to make such investigations as would suggest themselves to one using ordinary care and prudence; and if, upon making such investigations, it learns that ■there is danger of the mine becoming flooded, it then becomes its duty to make such provisions for the safety of its employees as would occur to a person of ordinary prudence, or to inform the employees of the impending danger so that they may assume the risk or'waive the negligence of the master. — P. 70.</p> <p>7. Practice in Civil Actions — Master and Servant — Negligence of Master — Question of Law — Question of Fact for JuryNonsuit — Directed Verdict.</p> <p>Whether a mining company, knowing of the existence 'of water in a neighboring mine in .such quantities as to become dangerous to its employees, used ordinary care to prevent the mine from' becoming flooded and made reasonable provisions for the safety of its employees, cannot be determined as a matter of law, for what may be negligence under some circumstances and conditions, may not be under others. It is not a fact to be testified to, but can only be inferred from the res gestae; hence, it may generally be said to he a conclusion of fact to be drawn by the jury under proper instructions from the court, and it is always so where the conclusion is fairly debatable or rests in doubt; and it is only where there is an entire absence of testimony tending to establish the case that a nonsuit may properly be ordered or a verdict directed. — P. 70.</p> <p>8. Practice in Civil Actions — Master and Servant — Negligence of Master — Evidence Sufficient for Jury.</p> <p>In an action for damages for the death of an employee in a mine, caused by flooding, evidence reviewed and held sufficient to submit to the jury to determine the alleged negligence of the employer. — P. 72. . .</p> <p>9. Practice in Civil Actions — Master and Servant — Contributory Negligence — ^Evidence Sufficient for Jury.</p> <p>In an action for damages for the death of an employee in a mine caused by flooding, evidence reviewed and held sufficient to submit to the jury to determine the alleged contributory negligence o'f the employee. — P. 73.</p> <p>10. Practice in Civil Actions — Master and Servant — Negligence —Burden of Proof.</p> <p>In an action for damages for the death of an employee in a mine, caused by flooding, the employer has the burden of proving that the employee knew of the danger; and plaintiff, to recover, need not prove that the employee did not know of the danger, or that the employer had not informed him of its existence. — P. -76.</p> <p>11. Practice in Civil Actions — Master and Servant — Death of the Servant — Assumption of Risk — Question for Jury.</p> <p>In an action for damages for the .death of an employee in a mine, caused by flooding, evidence reviewed and held sufficient to submit to the jury to determine the alleged assumption of risk by the employee. — P. 76.</p> <p>12. Master and Servant — Comparative Negligence of Master.</p> <p>Where a servant, knowing the hazard of the employment and the manner in which the business is conducted, is injured while employed in such business, he cannot maintain an action 'against the master on account of such injury, merely because he may be able to show that there was. a safer mode in which the business might have been conducted, and that, if it had been conducted in that manner, he would not have been injured. —P. 76.</p> <p>13. Practice in Civil Actions — Master and Servant — Negligence —Evidence.</p> <p>In an action for damages for the death of an employee in a mine, caused by flooding, evidence of the lack of ladders and bulkheads in the mine at places where they should have been, is admissible for the purpose of showing that, if the defendant knew, or, in the exercise of ordinary care should have known, of the existence of such danger, it further neglected to exercise reasonable care to make the place ordinarily safe. — P. 77.</p> <p>14. Practice in Civil Actions — Evidence—Stenographer’s Transcript.</p> <p>Where, on the second trial of a cause, it was shown that witnesses who testified at the former trial were dead or absent, although such former testimony was taken by a stenographer and certified to-be correct, their testimony was properly excluded in the absence of other proof that it was correctly taken or correctly transcribed, or that the paper offered was a correct copy of the testimony of the witnesses a’s actually given. — P. 77.</p>

<p> Appeal from the District Court of Arapahoe County. </p> <p> Son. P. L. Palmer, Jiidge. </p> <p>Action by Adolpb Coors against Tbe A. S. Ripley Building Company and Tbe American Surety Company. From a judgment for plaintiff*, defendants appeal.</p>

<p> Error to the District Court of Arapahoe County. </p> <p> Hon. C. P. Butler, Judge. </p> <p>Action by Smith IT. Hastings against Gordon P. Pringle. Prom a judgment in favor of defendant, plaintiff brings error.</p>

<p> Error to the District Court of Arapahoe County. </p> <p> Hon. Frank W. Owers, Judge. </p> <p>Action by Philip Garretson against Scott Ash-ton. Prom a judgment in favor of plaintiff, defendant brings error.</p>

<p>Principal and Agent — Factors—Rights as to Third Persons — Sale of Goods.</p> <p>Where the owner of goods stored them with a warehouse company and authorized the latter to sell for cash to defendant, and the warehouse company delivered a. portion of the goods on time to defendant, and, on his failure to pay, sold all the goods and paid the owner in full, the warehouse company, or its assignee, was entitled to maintain an action against defendant for the goods sold to him. — P. 94.</p>

<p>1. Chattel Mortgages — Bills of Sale — Evidence.</p> <p>In an action to have a bill of sale declared a mortgage, evidence of offers to purchase the property made by third parties at a price nearly double the consideration set forth in the bill oír sale, is admissible for the consideration of the court in ascertaining the true purport of the transaction. — P. 102.</p> <p>2. Practice In .Civil Actions — Complaint—Chattel Mortgages— Bills of Sale — Fraud—Extrinsic Evidence.</p> <p>Extrinsic evidence is admissible to show that a bill of sale was intended as a mortgage, although the complaint contains no allegation of fraud in the making of the hill of sale. — P. 104.</p> <p>3. Practice in Civil Actions — Chattel Mortgages — Bills of Sale— Parol Evidence to Contradict Recitals.</p> <p>In an action to have a hill of sale of shares of stock declared a mortgage, parol evidence is admissible to deny recitals in such instrument that the plaintiff was afraid that a sale of the stock, pursuant to authority given by a previous assignment by him, would not produce enough to pay the debt, and that he feared a deficiency judgment, for such recital is but a declaration of a fact that constitutes no essential term or condition of the transaction, and, at most, was a circumstance which, if true, might be shown in explanation of his action, and as evidencing the intent with which he made the bill of sale; and parol evidence is also admissible to deny the receipt of a cash consideration recited in such instrument. — P. 107.</p> <p>4. Practice in Civil Actions — Chattel Mortgages — Bills of Sale— Evidence — Recitals in Instrument — Not Conclusive.</p> <p>In an action to have a bill of sale declared a mortgage, a recital therein that it is made in consideration of the surrender and cancellation of a note made by the person executing the bill of sale, is not conclusive that such instrument was not intended as a mortgage, for although the surrender and cancelling of the note is a circumstance favoring the theory of the sale, it is only a circumstance to be considered in connection with all other facts and circumstances in determining the intent and purpose of the transaction between the parties. — P. 108.</p>

Original Application for Writ of. Certiorari. Application by E. H. Martin, as warden of tbe state penitentiary of Colorado, for an original writ of certiorari to review tbe” action of tbe district court of tbe second judicial district of Colorado and of John I. Mullins, one of tbe judges thereof, in releasing William Moran from tbe penitentiary.

Original Application for Writ of Certiorari. Application by E. IT. Martin, as warden of the state penitentiary of Colorado, for an original writ of certiorari to review the action of the district court of the second judicial district of Colorado and John I. Mullins, one of the judges thereof, in releasing Jake Thomas from the penitentiary.

Original Application for Writ of Certiorari. An application by E. H. Martin, as warden of the state penitentiary, for a writ of certiorari to review the action of the district court of -the second judicial district of Colorado- and of John I. Mullins, one of the judges thereof, in releasing John Yaughn from the penitentiary.

<p>1. Courts — Statutory Construction — Statutes of Other States.</p> <p>In an action based upon the statutes of another state, this court is bound by the construction placed upon such statutes by the supreme court of such state. — P. 128.</p> <p>2. Railroads — Death of Employee — Action by Personal Representative — Statutory Construction.</p> <p>Section 3216 of the Comp. Laws of New Mexico provides that every corporation operating a railway within that territory shall be liable for damages sustained by any employee in consequence of mismanagement, carelessness, neglect, default or wrongful act of any agent or employee of such corporation while in the exercise of their duties, when such mismanagement, etc., could have been avoided by such corporation through the exercise of reasonable care in the selection of competent employees or agents, or by not overworking them an unreasonable number of hours; and §3218 provides, in substance, that a cause of action arising under this section shall be brought by the personal representative of the deceased. Held,' that such sections confer a right of action upon the personal representative for the death of a railroad employee caused by defendant company’s failure to select a sufficient number of competent employees to properly inspect its tracks and the hillsides adjoining, and to guard against falling rocks. — P. 128.</p> <p>3. Damages for Death — Killed in Another State — Action by Personal Representative — Statutes of Another State — Distribution of Proceeds.</p> <p>The laws of New Mexico require actions for death caused by the negligence or neglect of any railway company to be brought in the name of the personal representative of the deceased, and the proceeds obtained thereby to be distributed to the heirs, as designated by statute; and although by the laws of Colorado the personal representative has no right of action in such cases, but such right accrues to the heirs direct according to the preference fixed by statute, yet such an action, being transitory, may be brought in Colorado by the personal representative for a death caused in New Mexico, and the proceeds recovered thereby distributed to the persons entitled under the statutes of the latter place. — P. 129.</p> <p>4. Railroads — Master and Servant — Death of Servant — Negligence of Master — Question for Jury.</p> <p>Where in an action for the death of a railroad employee killed by the overturning of a locomotive, caused by a large rock rolling down the mountain side and displacing the rails, it appeared from the evidence that the rock came from a point beyond the right of way but plainly visible therefrom; that a few days before another rock had similarly rolled down on the track about 50 feet distant therefrom; that a short time prior thereto a large quantity of dirt and small rock had come down in the same canyon and completely covered the track; that the wreck occurred during the spring when these disturbances were more likely to occur; that the company did not have the track patrolled at night; that no inspection was made at this point after 5:30 p. m., and the wreck occurred at 11:30 p. m. Held, that the question of whether defendant was chargeable with negligence was properly submitted to the jury. — P. 137.</p> <p>5. Instructions — Evidence—Credibility of Witness.</p> <p>An instruction that “if you believe that any witness has wilfully testified falsely to any material fact in the case, you may disregard the whole of his or hfer testimony,” is proper.; — P. 142.</p> <p>6. Instructions — Duty of Jury — Knowledge Common to Mankind.</p> <p>An instruction that “you have a right, in elucidating or explaining the testimony and arriving at your verdict, to take into consideration any knowledge which you may have which is common to mankind generally, touching the matters testified about,” only permits the jury to use the knowledge common to mankind, and does not authorize it to go beyond the evidence. —P. 142.</p> <p>7. Railroáds — Master and Servant — Death of Servant — Negligence of Master — Question for Jury — Instructions.</p> <p>In an action for the déath of a railroad employee killed by the overturning of a locomotive, caused by a large rock rolling down the mountain side and displacing the rails, and such wreck happened during the spring of the year and at a place where such disturbances were more liable to occur, and the track at such point had not been inspected for about six hours prior to the overturning of the engine, it is not error for the court to submit the question to the jury of whether the railroad company was chargeable with negligence in not patrolling the track or making other necessary inspection for the protection of the passage of its trains, and in not protecting the particular train upon which deceased was riding. — P. 143.</p> <p>8. Railroads — Master and Servant — Death of Servant — Instructions — Equivalent Words.</p> <p>In an action for the death of a railroad employee killed by the overturning of a locomotive, caused by a large rock rolling down the mountain side and displacing the rails, the court instructed that if defendant, “in the exercise of ordinary care, prudence, and foresight, could have reasonably apprehended that boulders were liable to roll down from the mountain side onto the track, and that any track walkers in that immediate vicinity, in passing over the point in question in front of this train, might have discovered that the boulder or rock had rolled down * * * and .warned the train in time to have avoided the injuries,” plaintiff was entitled to recover. Held, that the word “might” did not impose a higher degree of care upon the company than the law imposes, as the use of the words “might have discovered,” have no greater significance, taken in connection with the testimony and the other instructions, than .the words “would have discovered.” — P. 144.</p> <p>9. Railroads — Master and Servant — Death of Servant — Assumed Risk — Instructions.</p> <p>In an action for the death of a -railroad employee killed by the overturning of a locomotive, caused by a large rock rolling down the mountain side and displacing the rails, the court instructed that the jury should decide whether the deceased had or had not assumed the risk of a boulder rolling down the mountain side and injuring the track, and that the law excuses a master where the injury results to the servant from the ordinary hazards which are incident to the nature of the employment, but not from a cause which the master, by the exercise of proper care and prudence, could have foreseen and guarded against. Held, that, as the danger was not so obvious as to warrant the court in declaring as a matter of law that the deceased assumed the risk, the question was properly submitted to the jury. — P. 145.</p> <p>10. Railroads — Master and Servant — Death of Servant — Rules of Company — Evidence—I nstructions.</p> <p>In an action for the death -.of a railroad brakeman while riding on the engine, an instruction that if deceased was riding in such a position upon the engine as a head brakeman usually assumes in the discharge of his duty, and that such place was a'reasonably safe one, then the mere fact of his riding on the engine would not be such contributory negligence as to defeat a recovery, is not objectionable on the ground that it ignores or abrogates defendant company’s rules, in the absence of introducing such rules in evidence or tendering an instruction covering such subject. — P. 146.</p> <p>11. Railroads — Master and Servant — Death of .Servant — Negligence of Master — Instructions.</p> <p>In an action for the death of a railroad employee killed by the overturning of a locomotive, caused by a large rock rolling down the mountain side and displacing the rails, an instruction that if the defendant in the exercise of reasonable and ordinary care could not have discovered that the rock was liable to fall on the track, the plaintiff is not entitled to recover, unless the jury further find that the defendant was negligent in-not properly inspecting its track prior to the passage of the train, and that such negligence was. the proximate cause of the injury, is not erroneous. — P. 147.</p> <p>12. Same. ■</p> <p>In an action against a railroad company for the death of an employee, an instruction that “the company should have used all reasonable precaution and'ordinary care to secure the safety of its employees by keeping a sufficient force at command, and of sufficient capacity to keep its roadway reasonably safe for the passage of its trains and the employees in charge thereof, and it cannot, for want of watchfulness, expose its employees to unreasonable risk and escape liability, but the duty imposed is that of ordinary care, and the ordinary care required must be measured by the danger of the service and proportioned by it,” is not erroneous as in effect charging that the sole and principal aim of the operation of a railroad is the safety of its employees, as it is the duty of a railroad company to use all reasonable precaution to secure the safety of its employees, and to keep a sufficient force at command to keep its roadway reasonably safe for the passage of its trains' and the employees in charge thereof. — P. 146.</p> <p>13. Railroads — Master and Servant — Assumption of Ordinary Risks — Negligence of Master.</p> <p>A railway employee assumes only the “ordinary” risks of his employment, and not the risks arising from the negligence or • want of reasonable care on the part of the railway company in inspecting its track or maintaining it in proper condition.- — P. 148.</p>

<p> Error to the' District Court of Gilpin County. </p> <p> Hon. A. H. De France, Judge. </p> <p>Action by The Rocky Mountain National Bank of central City, Colorado, against John Best, Byron J..Smith and Joseph H. Smith. From a judgment in favor of plaintiff, defendant Best brings error.</p>

<p> Appeal from the District Court of Teller County. </p> <p> Hon. William P. Seeds, Judge. </p> <p>Action by Lee Glenn, Frank Hart, Gay Glenn and A1 Pleasant against Tbe Isabella Gold Mining Company. From a judgment for plaintiffs, defendant appeals.</p>

Hon. Peter L. Palmer, Judge. Action by Alice J. McCombe, administratrix of John McCombe, deceased, Rowena E. McCombe by Alice J. McCombe, her next friend, and George R. Elder, successor in interest to Samuel McMillen, deceased, against TingleyS. Wood, impleaded with Mary M. Bullard, Anna L. Finnerty and Cecilia L. Wahrer. From a judgment in favor of plaintiffs, defendants appeal. '

<p>1. Mines and Mining — Adverse Suits — Location on Appropriated Ground.</p> <p>In an action in support of an adverse claim, the defendant may show that the plaintiffs location was • made upon ground embraced within a prior, valid, subsisting location, and if he succeeds in doing so, it is a bar to plaintiff’s recovery. — P. 186.</p> <p>2. Appellate Practice — Refusal of Competent Offer of Proof.</p> <p>The refusal of a competent offer of proof by the trial court is reversible error, and although the evidence might not have been sufficient to prove the offer, the adverse party cannot avail himself of such fact on appeal. — P. 186.</p>

<p>1. Water and Water Rights — Statutory Construction — Waste Water.</p> <p>Mills’ Ann. Stats., § 2269, providing that all ditches constructed for utilizing the waste, seepage or spring waters of the state shall be governed by the laws relating to ditches taking water from running streams, does not apply to a ditch built to catch the surface drainage from the irrigation of adjoining lands. — P. 189.</p> <p>2. Water and Water Courses — Surface Drainage — Appropriation.</p> <p>Defendants own and irrigate, from a natural stream,' a tract of land, the natural slope of which is towards plaintiff’s land: Plaintiff, by constructing a ditch upon her own land parallel with the common boundary line, has for many years intercepted the surface drainage from defendants’ land and used it for irrigating her lands. Defendants later constructed'upon their own land a ditch parallel to plaintiff’s ditch, intercept such surface drainage, carry it around plaintiff’s land, and irrigate another tract owned by them. Held, that plaintiff has not made a valid appropriation of such water as against defendants so as to prevent such action upon their part, and this is true although later defendants sell such adjoining tract of land, and continue to use such surface drainage, with the .consent of the vendee, upon the tract of land below plaintiff. — d?. 189.</p>

<p> Appeal from the District Court of Teller County. </p> <p> Eon. Wm. P. Seeds, Judge. </p> <p>Action by James H. Williams against The Lincoln Mountain Gold Mining Company. From a judgment in favor of plaintiff, defendant appeals.</p>

Hon. Christian A. Bennett, Judge. Action by William M. Neill and James E. Neill, copartners doing business under the firm name , and style of Neill Brothers, against Kate S. Seely, May H. Seely, Kate S. Seely as guardian of George H. Seely, minor heir of Joseph S. Seely, deceased, and The Seely Lake Recreation and Amusement Company, a corporation. From a judgment for plaintiffs, defendants appeal.

<p>1. Brokers — Sales—Real Property — Reasonable Compensation.</p> <p>Where real property was placed with plaintiff to sell “upon such terms as might be agreed upon between defendant and the purchasers,” defendant agreeing to pay plaintiff a commission on any such sales made, plaintiff did not show a performance of the contract by producing a person ready, able and willing to take an option on the property binding the defendant to convey at any time within seven months on the purchaser making the initial payment and executing notes secured by trust deeds for the balance, as- the contract of employment contemplated the production of a person who would enter into a valid agreement to buy upon terms satisfactory to the owner. — F. 207.</p> <p>2. Brokers — Sales—Real Property — Ability to Purchase.</p> <p>In an action by a broker for commission for furnishing a buyer for real property where the owner refused to carry out the alleged contract of sale, an alleged purchaser testified that he had offered and was willing to take an option to purchase such property binding him to pay $50,000 in seven months and to execute notes secured by trust deeds for the balance, and to deduct any sales of such lands made in the interim from the purchase price; and he further testified that he expected to sell enough of the land before the option expired to pay off the entire cash payment. Held, that such evidence does not show that plaintiff had produced a purchaser financially able to comply with the terms of the agreement of employment, in accordance with the rule that, in such cases, before he can recover, the broker must show that he performed those acts which, according to the contract of his employment, it was necessary for him to perform in order to be entitled to the compensation agreed upon. — P. 208.'</p> <p>3. Brokers — Sales—Real Property — Evidence—Oral Agreements Merged in Written Contract.</p> <p>Where the owner of certain lands was willing to give a prospective purchaser furnished by a broker the privilege of buying, and such purchaser was willing to take an option, it is to be presumed that they were negotiating for a valid option, that is for a written agreement, and hence either party would be at liberty to withdraw any oral proposition made in the meantime, and the owner could do so without becoming liable to the broker for his commission after the prospective purchaser failed to carry out the terms of the written option finally made; and in an action by the broker for his commission, proof of such oral agreements are inadmissible, as all negotiations' or stipulations between parties preceding or accompanying the execution of a written instrument are to be regarded as merged in it, and the latter is to be treated as the exclusive medium of ascertaining the agreement'to which the contractors bound themselves. — P. 210.</p> <p>4. Brokers — Sales—Real Property — Showing Purchaser Able to Buy.</p> <p>■In an action by a broker against the owner of real property for commission for furnishing an alleged purchaser for the land, he is not entitled to recover in the absence of showing that such purchaser is able to buy. — P. 211.</p> <p>5. Brokers — Sales—Real Property — More than One Purchaser.</p> <p>Where a broker produced a purchaser who was proposing to buy the 'entire property for sale, the owner was justified in refusing to consider a proposition from another prospective purchaser, furnished by the broker, for a portion of the land, pending negotiations with the first; and although the pending deal was not consummated, the broker is not entitled to recover a commission based upon furnishing the second purchaser. — P. 211.</p>

<p>1. Appellate Practice — Sufficiency of Evidence — Verdict Not Disturbed on Appeal.</p> <p>Where the record shows that there was evidence sufficient to justify the court in submitting the question to the. jury, and the jury was fully and fairly instructed as to the law of the case, a verdict is conclusive on appeal. — P. 213.</p> <p>2. Accounts — Action on Account — Defense—Breach of Contract.</p> <p>On an action for account stated for labor done, a breach of contract for the labor by plaintiff may be set up as a defense: —P. 214.</p>

<p> Error to the District Court of Arapahoe County. </p> <p> Hon. Geo. W. Allen, Judge. </p> <p>Action by Thomas M. Patterson against Patrick Dncey, individually, and Patrick Ducey, as administrator of the estate of Ellen G. Ducey, deceased, and Tyson S. Dines, D. H. Eice and A. G. ■ Sharp, administrators, to collect the estate of Winfield S. Stratton, deceased.-</p>

Hon. Theron Stevens, Judge. Action by The First National Bank of Denver and B. F. Bichardson against Panl Gehr and others, in which Y. L. Hotchkiss, administrator of Paul Gehr, deceased, was substituted. • From a decree in favor of plaintiffs, defendant administrator brings error.

Hon. James L. Bussell, Judge. Action by Henry Garbanati, Jr., against W. J. Patterson, as county treasurer, to compel defendant to execute to petitioner a treasurer’s' tax deed for a certain mining claim. Prom an order denying such relief, plaintiff brings error.

<p>1. Cities and Towns — Dedication of Streets — Failure to Comply with Statutes — Common-Law Dedication.</p> <p>Section 2648, Geni. Laws 1877, provides that whenever any. territory shall be laid out as an addition to any city or town, such territory shall, upon the filing of the plat in the office of the county clerk and recorder of the county, and another such plat with the clerk of the city or town to which it is desired to annex the same, shall become a part thereof, provided that no plat shall be filed until it "has been approved by three-fourths of the members of the city council or board of trustees; and § 2647-provides that all avenues, streets, alleys, parks, and other places designated for public uge on the plat, shall be deemed to be public property, and the fee thereof shall be vested in such city or town. Held, that, where a plat was not approved by three-fourths of the city council, nor filed with the city clerk, no statutory dedication of the fee to the streets and alleys was made, but only a common-law dedication giving the city an easement. —P. 240.</p> <p>2. Cities and Towns — Dedication of Streets — Statutory and Common-Law Dedications.</p> <p>Where the statutory requirements in regard to dedicating streets and alleys to a city or town have not been complied with, no subsequent conduct of the donor or of the city authorities can render the dedication operative so as to vest the fee title in the municipality; but the plat is evidence of the owner’s intention to dedicate such streets and alleys to public use, and, when accepted by the proper authorities or by the public by general use, it will constitute a common-law dedication, which confers an 'easement adequate tó the accommodation of the public and the city for municipal purposes. — P. 247.</p> <p>3. Cities and Towns — Dedication of Streets — Synonymous Words. The word “convey,” used on a plat dedicating the streets and</p> <p>alleys to a city, is synonymous with the word “dedicate,” and, in the absence of an effective statutory dedication, does not convey the fee. — P. 247.</p> <p>4. Cities and Towns — Dedication of Streets — Unauthorized Indorsements.</p> <p>The indorsements on a plat signed by the mayor and clerk that the plat had been presented to and adopted by three-fourths of the members of the council, when contrary to the fact, is without authority and of no effect. — P. 248.</p>

<p>Cities and Towns — Dedication of Streets — Title Acquired — Statutory Construction.</p> <p>Under § 2647, Geni. Laws 1877, providing that all avenues, parks, and other places designated for public use on the plat, shall be deemed to be public property, and the fée thereof shall be vested in such city or town, 'a city has such estate or interest as is reasonably necessary to enable it to utilize the surface and SO' much of the ground underneath as might be required for laying gas pipes, building sewers, and other municipal purposes, but it has no interest in the ores that may exist thereunder, —P. 253,</p>

<p> Error to the District Court of Lake County. </p> <p> Eon. Frank W. Oiuers, Judge. </p> <p>Patrick Brennan was convicted of murder in the first degree, and brings error.</p>

<p>1. Mechanics’ Liens — Lien Statement — Foreclosure—Pleading-Complaint — Amendment.-</p> <p>Where the lien statement filed by a material man covered but one whole lot, an amendment to the complaint in foreclosure proceedings so as to include a part of another lot, upon which a portion of the improvements were, made for which the material was furnished, cannot have the effect of amending the lien statement so as to warrant a decree of sale against both the whole lot and such portion of another. — P. 267.</p> <p>2. Mechanics’ Liens — Cessation from Labor — Time Within Which to File.</p> <p>Section 3, c. 117, Sess. Laws 1893, requires the lien of material men to be filed within 30 days after the completion of a contract, also provides that cessation from labor tor 30 days upon an unfinished contract shall be deemed equivalent to a completion thereof. Held, where work ceased on a contract November 6 and was not resumed until December 27 of same year, that a material man filing a lien statement on December 10 was in time. — ¡P. 267.</p> <p>3. Mechanics’ Liens — Property Subject to Lien.</p> <p>Where material was furnished for improvements built upon one whole lot and a part of another lot, and the material man included only the whole lot in his lien statement, he is entitled to have his whole claim paid out of such lot, no other interest having intervened. — P. 268.</p>

Hon. Morton S. Bailey, Judge. Action by J. O. Chase and D. B. Chapin against the board of county commissioners of Boulder county. From a' judgment for defendant, plaintiffs bring error.

<p>1. Taxes and Taxation — Inheritance Tax — Statutory Construction.</p> <p>A succession or inheritance tax, excise, or duty, is a special, not-a general, tax; and whatever may be the rule of construction as to the ordinary recurring annual tax laid directly upon property and based- upon a precedent valuation, it is the general doctrine that a -succession tax is construed strictly against the government and in favor of the tax payer. — P. 285..</p> <p>2. Taxes and Taxation — Inheritance Tax — Statutory Construction — Synonymous Words.</p> <p>Section 3113 of 3 Mills’ (Rev.) Stats, provides that all “property” which shall pass by will or by the intestate laws of this state to any person or persons shall be subject to a tax, and that when the beneficial interests to any “property” or income therefrom shall pass to or for the use of any father, mother, husband, etc., the rate shall be two dollars on every hundred dollars of the clear market value of “such property received by each person,” provided, that the sum of ten thousand dollars of “any such estate” shall not be subject to taxes. Held, that “property” and “estate” are used synonymously in this section; and that, as the tax is laid upon the receipt of “such property by each person,” the exemption applies to the separate distributive shares and legacies, and not to the aggregate value of the property of the decedent. — P. 286.</p>

<p>1. Practice in Civil Actions — Water and Water Rights — Injunctions — Consistent Findings.</p> <p>In an- action to enjoin the defendant from interfering with an irrigation ditch, on the ground that plaintiff had a prescriptive right to maintain such ditch across the farmer’s land, a finding that there was no such prescriptive right is not necessarily inconsistent with a finding that plaintiff had the right to maintain such ditch during that particular irrigation season. — P. 297.</p> <p>2. Appellate Practice — Variance Between Pleadings and Findings — Failure to Object Below.</p> <p>Although it is apparent from the record on appeal that there is a variance between the pleadings and the findings, in the absence of a showing that the attention of the trial court was called thereto in apt time or manner, the appellate court will presume that the appellant consented that the issues presented by the evidence might be determined by the trial court, and thereby waived his right to urge the- objection here. — P. 298.</p>

Hon. C. C. Holbrook, Judge. Action by W. O. Cyle and F. W. Loveland, as administrators of the estate of William A. H. Love-land, deceased, against The Denver & Eio Grande Eailroad Company. From a judgment in favor of defendant, plaintiffs appeal.

<p> Appeal from the District Court of- Weld County. </p> <p>Son. Christiam, A. Bennett, Judge.</p> <p>Action by A. J. Park, as trustee, and John ft. Alexander against Tbe First National Bank of Greeley, Colorado. From a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from the District Court of Rio Grande, County.</p> <p>Eon. C. (7.’ EolbrooTi, Judge.</p> <p>Action by Tbe Misc.’ Gold Mining and Milling Company, George W. Ballintine, Charles E. Cotton and Alexander Ross against Frank E. Moody, James B. Knoblock, Eben E. Eaton, Clarence A. Moody, Fred H. Nye and The Nebraska Rio Grande Mining Company. From a judgment in favor of defendants, plaintiffs appeal.</p>

Eon. Samuel L. Carpenter, Judge. John A. Keefe, John G-affy and William Denney were convicted of employing laborers on public improvements in the City of Denver for a. longer period than eight hours a day, and they bring error. Decision en banc.

<p>1. Railroads — Injuries to Passengers — Negligence—Evidence. Where, in an action for injuries to a passenger by stepping</p> <p>into a hole dug by the side of an electric railway track for a trolley pole, while transferring at night from one car to another, evidence that defendant’s railway was operated by electricity, and that the hole was close to defendant’s track and was dug for a trolley pole, .was sufficient to justify the conclusion by the jury, in the absence of evidence to the contrary, that defendant dug the hole. — P. 328.</p> <p>2. Railroads — Injuries to Passengers — Negligence—Evidence.</p> <p>Where a passenger was injured by stepping into a hole dug by the side of an electric railway track for a trolley pole, which must have been dug not later than the day before the night of the accident which happened at 2 o’clock in the morning', and the railway company knew that the place where the hole was dug would be traveled by its passengers during the night in transferring from one car to another, the company was negligent in .not using reasonable care to guard against the danger. — P. 329.</p> <p>3. Railroads — Injuries to Passengers — Negligence—Relation of Carrier and Passenger.</p> <p>Where plaintiff, a passenger on an electric railway, was compelled to alight in order to transfer from one car to another over a place where the track was being repaired, the relation of carrier and passenger continued to exist while plaintiff was passing from one ear to another so as to require defendant to exercise reasonable care in having the right of way in a reasonably safe condition. — P. 329.</p> <p>4. Railroads — Injuries to Passengers — Negligence—Evidence.</p> <p>Where an electric railway passenger was injured at night by stepping into a hole dug for a trolley pole as he was transferring from one car to another, such transferring being made necessary on account of repairs being made in the track, proof of such facts established a prima facie case of negligence against defendant company. — P. 329.</p> <p>5. Railroads — Injuries to Passengers — Negligence—Personal Injuries — Damages.</p> <p>Where a plaintiff received severe injuries to the knee joint by stepping into a hole dug for a trolley pole along the line of an electric railway, and the upper and front portion of the ligaments of the knee were torn loose and the muscles were seriously sprained, and in consequence thereof, the person injured was confined in bed for a week, and suffered great pain for two weeks, and some pain thereafter, and he continued on crutches for sixty days, and was unable to .work for eighty-three days, and to some extent his injuries were permanent, and he also paid twenty-five dollars for surgeon’s services, a verdict for one thousand dollars was not excessive. — P. 330.</p> <p>6. Railroads — Injuries to Passengers — Pain and Suffering — Negligence.</p> <p>In an action for damages for personal injuries received on account of the negligence of defendant company, an instruction authorizing the jury to consider the pain suffered by plaintiff in consequence of such injuries in estimating the damages sustained is proper. — P. 330.</p>

<p> Appeal from the District Court of El Paso County. </p> <p> Hoñ. Louis W. Cunningham, Judge.. </p> <p>Action by The Chilcott Ditch Company, a. corporation, against A. P. Callahan. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Practice in Civil Cases — Contracts—Burden of Proof.</p> <p>Where, in an action on a contract, plaintiff claimed a modification of the original contract, the burden was on him to show such fact. — P. 339.</p> <p>2. Practice in Civil Actions — Contracts—Evidence—Sufficiéncy.</p> <p>■In an action on a contract, evidence considered, and deemed insufficient to establish a modification of the original contract. —P. 339.</p> <p>3. Appellate Practice — Verdict Against Weight of Evidence.</p> <p>While the general rule is, that when there is a substantial conflict of evidence the finding will not he disturbed on appeal, there are well recognized exceptions, as where the finding is the result of bias or prejudice, mistake, or misapprehension, or misconception of the evidence, or where there is none; nor can a judgment hut slightly supported hy the evidence, and manifestly against its weight, he allowed to stand. — P. 343.</p>

Appeal from the District Court of El Paso County. Eon. Morton L. Bailey, Judge. Action by Tbe First National Bank of Colorado Springs against tbe town of Manitou and A. N. Frownie, its treasurer. From a judgment for plaintiff, defendants appeal. ■

Hon. C. A. Pike, Judge. Action by Gns E. Johnson and Leon Ashbach against Henry Garbanati and one Mershon, copartners, doing business as Garbanati & Mershon. Prom a judgment in favor of plaintiffs, defendant Garbanati brings error.

^tppeal from the District Court of the City and Cov/nty of Denver. Don. Samuel L. Carpenter, Judge.

<p>1. Cities and Towns — Functions—Duties—Political and Governmental — Private and Corporate — Liability for Damages.</p> <p>In the discharge of its functions a municipality is called upon to perform duties of two classes, the one political and governmental in its character; and the other private and corporate; and its liability or non-liability for damages is dependent upon the character of the duty performed, rather than upon the department, officer, or agent, performing it; a municipality is not liable for the acts of officers or agents of the departments of health, police, or fire, while in the performance of public governmental functions and duties connected with and appertaining to such departments; and this is not upon the theory that the officer is a member of such department, but because the duty performed by him is a public governmental duty imposed upon the municipality by the state. — P. 372.</p> <p>2. Cities and Towns — Dumping Grounds — For Convenience of Inhabitants — Private and Corporate Functions.</p> <p>A dumping ground maintained by a city for ashes, paper, straw, manure, rags, boxes, scrap-metal and like materials, collected by city and private teams from the streets, alleys, and other public and private places in the city, is for the convenience and benefit of its inhabitants, and is an adjunct to its street-cleaning department; and its maintenance is not the discharge of any public duty imposed upon the city by the state, • but is the exercise of a municipal function by the city in its private and corporate capacity. — P. 375.</p> <p>' 3. Cities and Towns — Municipal Duty — Negligence of Officers— Liability.</p> <p>Where the health commissioner of a city, pursuant to an ordinance thereof, established and maintained, through officers appointed by him and paid by the city, a dumping ground for ashes, paper, straw, rags, boxes, scrap-metal and like materials collected by the city from the streets, alleys, and other public and private places; asid combustible material deposited there had been burning for several weeks, and, on account of a heavy wind, fire therefrom was communicated to, and destroyed, plaintiff’s building. Held, that the city is liable for such loss. — P. 378.</p>

Eon. F. T. Johnson, Judge. Action by the Bishop and Chapter of tbe Cathedral of St. John the Evangelist against the Treasurer of the City and County of Denver. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded with directions to grant the relief prayed for. Decision en banc.

<p>1. Fraudulent Conveyances — Pleading — General Denial —Evidence Admissible.</p> <p>In an action to subject to a judgment a lot standing in tlie name of another than the judgment debtor, on the ground that it had been placed in the name of such other person to defraud creditors, evidence was admissible under a general denial that the funds for the purchase and improvements upon such lot were furnished from the resources of the one in whose name stood the title. — P. 391.</p> <p>2. Appellate Practice — Findings—Conflicting Evidence.</p> <p>Where the evidence is substantially conflicting, the findings of the trial court will not be disturbed on appeal. — P. 392.</p>

<p>1. Master and Servant — Injuries to Servant — Failure to Warn.</p> <p>Where a servant of ordinary intelligence and capacity was engaged in chipping certain rolls for crushing ore* and the danger incident thereto was open and visible and as obvious to plaintiff as to defendant, and there was nothing latent, hidden or concealed about it, his employer was not guilty of negligence in failing to warn, him of the danger. — P. 395. .</p> <p>2. Master’ and Servant — Injuries to Servant — Contributory Negligence. -</p> <p>A servant of ordinary intelligence was engaged in chipping certain rolls of an ore crusher. After he had been so engaged for an hour or so and well knew that pieces of steel flew about the room as they were chipped off, upon the request of a co-employee, he gave the latter the hammér with which to continue the work. He thereupon stepped on a platform just behind and a little above his co-employee, and, while standing in this position, directly in the line and direction of the blows, a piece of steel chipping struck and injured his eye. Held, that he was guilty of contributory negligence in voluntarily surrendering his place to a co-employee and taking a position so obviously dangerous. — P. 396.</p> <p>3. Master and Servant — Injuries to Servant — Assumed Risk.</p> <p>A servant of ordinary intelligence was engaged in chipping certain rolls of an ore crusher. After he had been so engaged for an hour or so and well knew that pieces of steel flew about the room as they were chipped off, he surrendered the hammer with which he had been striking the chisel for such chipping, and then took a position directly in the line and direction of the blows, and while in this position he was injured by a piece of such steel chipping. Held, that, having continued to work with knowledge of the dangerous character of the employment, and without protest, he assumed the risk. — P. 397.</p>

Mon. John I. Mullins, Judge. A petition of intervention filed in the insolvency proceedings of The Denver Savings Bank by N. M. Tabor and Frank N. Pierce, as executors of the will of Augusta L.- Tabor, deceased, and Joseph C. Freund, appearing on behalf of themselves and all other depositors of the bank similarly situated, resisting the prior petition of D. W. Mullin, M. E. Lothrop, Sarah A. Taylor, William T. Land and all other similarly situated, asking to he permitted to…

<p>Habeas Corpus — Remedy by Writ of Error.</p> <p>Where a person, adjudged guilty of contempt of court has an adequate remedy by writ of error to review the judgment complained of, an original proceeding by habeas corpus will not be entertained by the appellate court. — P. 421.</p>

<p>Former Opinion Followed.</p> <p>This proceeding dismissed in accordance with the opinion in In re Stidger, ante, p. 407.</p>

<p>1. Pleading — Complaint—Separate Counts — Double Statements."</p> <p>While 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 is not absolutely inflexible; and 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. — P. 425.</p> <p>2. Pleading — Complaint—Amendment.</p> <p>"Where, in an action by the widow of deceased to recover damages for personal injuries resulting in her husband’s death through defendant’s negligence, plaintiff was allowed, at the close of her case in chief, over the objection of defendant, to amend her complaint by inserting allegations as to the amount of wages the deceased was receiving at the time of his death and of the assurances given him by defendant that the place was safe where he later received his fatal injuries. Held, that, while possibly the usual formalities were not complied with by plaintiff in malting the request, yet, under the circumstances disclosed by the record, the court did not abuse its discretion in permitting the amendment to be made, but rather promoted a leading object of the code, that is, assisted the parties in obtaining justice. — P. 425.</p> <p>3. Master and Servant — Death of Servant — Examination of Jurors — Proper Questions.</p> <p>In an action against a mining company to recover damages for personal injuries resulting in death through defendant’s negligence, it was not prejudicial error for plaintiff’s counsel to ask the-jurors if they were interested in a certain guarantee insurance company, as it was proper for the purpose of obtaining information as a guide for the exercise of a peremptory challenge or one for cause. — P. 426.</p> <p>4. Mines and Mining — Master and Servant — Foreman not Fellow-servant.</p> <p>A foreman who has entire charge. and is overseer of the work of timbering a mine, and is in full control of the timber-men, is not a fellow-servant with the men working under him, but is a representative of the employer. — P. 429.</p> <p>5. Mines and Mining — Master and Servant — Death of Servant— Doctrine of Safe Place — Instructions.</p> <p>Where, in an action against a mining company to recover damages for personal injuries resulting in death through defendant’s negligence, the evidence was conflicting as to whether the work, in which he was engaged at the time of receiving the injuries, 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, although there were some indications that it was not entirely safe, which fact had been communicated by dece'ased to defendant’s overseer, and that the latter, after a personal examination which he then made and from previous knowledge and inspections of the stope, and with fuller and moré complete knowledge of the character of the ground in which it was being run, assured deceased that the place was perfectly safe, and that' there was no. danger of the falling of rock or earth from the walls of the stope, from which the particular rock fell which crushed him; it was proper to instruct the jury that the doctrine of safe place applicable to the case,'as made by plaintiff’s witnesses.— P. 430.</p>

<p> Appeal from the District Court of Teller County. </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Action by Paul Esteb against Tbe Cripple Creek Mining Company. From a judgment for plaintiff-, defendant appeals.</p>

Hon. Booth M. Malone, Judge. Action by Mrs. J. L. Askey and 116 others against The Fidelity Savings Association by its receiver, B. H. Malone, and others. From a judgment for defendants, plaintiffs appeal.

Original Proceeding on Application for a Writ of Prohibition. Application by the people, on the relation of John Benbow, Edward Fitzpatrick, O. E. Lunney, F. W. McIntyre, James P. Higgins, Lacón Ireland and Ike Coyle, Xor a writ of prohibition to prevent the district court of the thirteenth judicial district, Edward E. Armour, as judge thereof, and Albert H. Packard, from proceeding further in certain actions pending in said court. Decision en banc,-

Original Proceeding in Prohibition. Original proceeding in prohibition by the people of the state of Colorado on the relation of Francis F. Graves, Edward C. Soetje, and Harry C. Riddle, constituting the temporary election commission of the city and. county of Denver against The District Court of the Second Judicial District and Frank T. Johnson, one of the judges. Decision en banc.

<p>1. Contracts — Partnership—Personal Services.</p> <p>The owner of a stock of merchandise entered into a contract with another, whereby the latter was to buy an interest in the stock and was to receive a salary in addition to a certain per cent, of the net profits derived from the sale of such stock. Held, that though there was no clause in the contract saying that either party was to bear the losses, in the absence of evidence to the contrary, the law presumes that losses were to be borne in the same proportion in which they shared in the profits; and that these and other elements of a partnership contract existing, and the clear intention of the parties being to form a partnership, the contract concerned, and, when consummated, gave rise to, a partnership. — P. 470.</p> <p>2. Pleading — Complaint—Variance—Waiver.</p> <p>Although a complaint may be uncertain as to whether the plaintiff seeks damages for defendant’s breach of an .executory contract to form a partnership, or for his violation of the terms of one consummated, the defendant waives such defect hy answering over, after his demurrer on that specific ground has been overruled. — P. 471.</p> <p>3. Pleading — Complaint—Two Causes of Action in One Statement — Evidence. Supporting One — Variance Waived — Verdict Not Set Aside.</p> <p>Although commingled in one statement are the essential elements of two causes of action, if the evidence supports either, and the complaint states a cause of action, a judgment or verdict cannot be set aside on the ground of an alleged variance which the defendant has waived. — P. 471.</p> <p>4. Pleading — Complaint — Action Not Named — Partnership — Breach of Contract — Measure of Damages.</p> <p>Where a complaint states, but does not name, a cause of action, and the facts are stated as the code requires, it is immaterial whether the cause of action is for the breach of an executory contract to form a partnership or one for the violation of the terms of an existing one, as the measure of damages is the same in both cases, being the probable profits which plaintiff would have earned had not defendant wrongfully prevented its performance. — F. 471.</p> <p>5. Partnership — Breach of Contract — Measure of Damages — Evidence.</p> <p>Where the sole object of a partnership business is the accumulation of profits, the measure of damages for a breach of the partnership is the profits which would have accrued to the plaintiff had not the partnership been wrongfully dissolved; and evidence of past profits in the same business, of the prosperity and growth of the community during the term of the partnership, and of the ability and skill of the plaintiff, is.admissible as bearing on the question of damages; and while it is impossible with absolute certainty to say whether any business will be profitable in the future, if the evidence tends to show with reasonable certainty that profits would be made, they may be recovered, though the amount is uncertain, but merely speculative or reinóte profits cannot be recovered.- — F. 473.</p> <p>5. Practice in Civil Actions — Partnership—Breach of Contract— Instructions — Non-direction—Failure to Tender.</p> <p>In an action for damages for a breach of a partnership contract, a failure of the court to properly define “probable profits,” in the absence of a tender of such instruction or one limiting the range of the jury’s inquiry, is not reversible error. — P. 474.</p> <p>7. Practice in Civil Actions — Partnership—Breach of Contract —Instructions Read as a Whole.</p> <p>Where, in an action for damages for a breach of a partnership contract, the court instructed the jury that if the alleged representations of the plaintiff, or any of them, were false and untrue, the defendant would be justified in revoking the contract, another instruction that defendant must establish the truth of the allegations of his affirmative defenses of incompetency and plaintiff’s fraudulent representation whereby defendant was induced to make the contract, was not misleading as imposing on defendant the burden of proving all such averments, as the instructions must be read as a whole'. — P. 474.</p> <p>8. Practice in Civil Actions — Affirmative Defenses — Mitigation of Damages.</p> <p>Mitigation of damages is an affirmative defense, and must be specially pleaded. — P. 475.</p> <p>9. Partnership — Breach of Contract — Measure of Damages.</p> <p>Where, in an action for damages for a breach of partnership contract, the evidence of both plaintiff and defendant shows that one-third of the profits was intended by the parties to be solely as profits and as compensation to the plaintiff by way of return for his investment in the firm business, no part of such profits can be treated as additional compensation for plaintiff’s services to the firm. — P. 476.</p>

Hon. F. T. Johnson, Judge. On Rehearing. Action by tbe people, on tbe relation of John T. Bottom, against Harry A. Lindsley. Prom a- judgment for defendant, relator brings error-. Decision en banc.

Hon. Theron Stevens, Judge. Action by Tbe Fruita Improvement Company against Tbe Grand Valley Irrigation Company. From a judgment for plaintiff, defendant appeals. Affirmed in part, and reversed in part. Bebearing denied en banc.

Appeal from the District Court of Costilla County. Hon. Charles C. Holbrook, Judge. . Action by The Farmers ’ Union Ditch Company and others against The Rio Grande Canal Company and others. From a judgment in favor of defendants, plaintiffs appeal. Decision en banc.

<p>1. Practice in Civil Actions — Instructions—Directing Verdict Orally.</p> <p>It is not prejudicial error to orally direct a verdict for plaintiff at the close of the evidence, if the instruction is otherwise correct. — P. 524. 0</p> <p>2. Appellate Practice — Oral Instruction — Waiver of Objection.</p> <p>Where no objection was made at the time to an oral instruction directing a verdict, an assignment of error upon the ground that such instruction should have been in writing will not be considered on appeal, as such objection was thereby waived. —P. 524.</p> <p>3. Contracts — Money Obligations — Interest — Notice—Statutory Construction.</p> <p>Where a contract provided that the parties of the first part would pay the party of the second part a certain sum of money if the sum was not paid by a third party within a specified time, and such third party failed to do so, it is not necessary 'to either make a demand upon such third party for payment or to notify the parties of the first part of such failure in order to mature the obligation so as to' draw interest in accordance with Mills’ Ann. Stats., § 2252, providing that creditors shall be allowed interest for moneys after they become due on any instrument in writing, as the money became due upon the failure to pay at the expiration of the specified time, and the allowance of interest from the date of the commencement of the suit does not constitute prejudicial error. — P. 526.</p> <p>4. Practice in Civil Actions — Contracts—Negotiability—Real Party in Interest.</p> <p>Where a contract provided that the parties of the first part would pay the party of the second part a certain sum of money if the same were not paid by a third party within a specified time, and the party of the second part assigned the contract by indorsement for a sufficient consideration, such assignee can sue thereon regardless of the negotiability of such contract, as he is the real party in interest. — P. 527.</p> <p>5. Practice in Civil Actions — Contracts—Joint Obligations— Action Against One.</p> <p>Where a contract provided that, in consideration of a certain sum of money having been paid to one of the parties of the first part, the parties of the first part would pay the same to the party of the second part if such sum were not paid by a third party within a specified time, such obligation of the parties of the first part is joint and several within Mills’ Ann. Stats., § 2528, providing that joint obligations shall be^joint and several, and, by the provisions of Mills’ Ann. ■ Code, § 13, the party of the second part may sue any one or more of them. — P. 527.</p> <p>6= Evidence — Counter-claims—Mutual Demands — Statutory Construction.</p> <p>Mills’ Ann. Code, § 57, does not permit a partnership demand to be set up as a counter-claim against an individual liability. —P. 528.</p> <p>7. Evidence — Written Contract — Contemporaneous Oral Agreement.</p> <p>In an action upon a written contract providing that the parties of the first part would pay the party of the second part a certain sum of money if the same were not paid by a third party within a specified time, evidence that the party of the second part told defendant, at the time of the execution of the contract, that his signing the same was a mere matter of form, and that he would never be called upon to meet it, is inadmissible in that it-violates the rule that a written contract cannot be varied or contradicted by evidence of a contemporaneous oral agreement. — P. 529.</p>

Hon. James E. Garrigues, Judge. Action by Tbe Arthur Irrigation Company and others against C. C. Hawley, water commissioner, and The New Cache la Poudre Irrigating Company, intervenor. Prom a judgment in favor of plaintiffs, intervenor appeals.

<p>Water and Water Rights — Change of Point of Diversion — Constitutional Law — Ex Post Facto Laws — Remedial Laws.</p> <p>The acts of 1899 and 1903 (Sess. Laws ’99, p. 235 and Sess. Laws ’03, p. 278), prescribing a procedure for changing the point of diversion by the owner of a water right, is not invalid as an ex post facto law, although they apply to changes already made, as these acts are merely remedial. — P. 535.</p>

Appeal from the District Court of Montrose County. Don. Theron Stevens, Judge. Action by S. P. Grutshall against L. Gr. Carpenter as State Engineer, District No. 4, and W. O. Her sum, Water Commissioner, District No. 41. From a judg-. ment for defendants, plaintiff appeals. Decision en banc.