not actionable, and cites Levine v. McClenathan, 246 Pa. 374, 92 Atl. 317, L. R. A. 1917B, 235. There the court held:

"That no implied covenant arises out of the relation of landlord and tenant upon the part of the landlord to repair, nor is there any implied warranty that the leased premises are tenantable. In the absence of a covenant in the lease requiring the lessor to repair, no such duty rests upon the landlord. tenant takes the property as it is, and he must be the judge of its tenantable condition."

*

The

And the case proceeds further to say that the doctrine of caveat emptor applies to leases of real property. We have quoted the foregoing for the purpose of making it apparent that the case can have no application

to the facts in the instant case.

[5] The defendant further claims that the court erred in rejecting evidence offered by him to sustain the defense of contributory negligence or assumption of risk. That part of the record referred to shows that the court sustained the objection to that evidence, for the reason that it was not proper cross-examination, and for the further reason that there was no sufficient plea of contributory negligence or assumption of risk. There is no assignment of error based on the ruling of the court sustaining the objection, and we are not required to consider it. Rule 32; Andrew v. Carpet Co., 72 Colo. 472, 474, 211 Pac. 378; Le Doux v. Horowitz, 70 Colo. 402, 403, 201 Pac. 880.

cised under the same circumstances. There was no error in the giving of the one nor the refusal to give the other, the evidence having shown, as already pointed out, that the negligence alleged and proven was not in the moving of the house, but in reference solely to the foundation. There was no evidence to justify submitting to the jury the question whether plaintiff was guilty of contributory negligence, and none that he assumed the risk, nor that he had any knowledge of any thing concerning the foundation, or concerning any negligence in its construction; and without such knowledge he cannot be held to have assumed the risk. Plaintiff's goods were not damaged as a result of the moving of the house, but because the foundation gave way when the house was placed upon it. In other words, had the foundation been properly located, prepared, and laid, the house would not have collapsed and no injury could have

been sustained.

We have examined the entire record with much care, and, finding no reversible error, the supersedeas is denied and judgment af

firmed.

Affirmed.

TELLER, C. J., and CAMPBELL, J., con

cur.

PAWNEE FARMERS' ELEVATOR CO. v.
POWELL. (No. 10834.)

However, there was no error in the ruling (Supreme Court of Colorado. July 7, 1924.) of the court in this respect, as the question.

asked was not proper on cross-examination. Furthermore, during the introduction of evidence by the defense, the defendant testified fully as to all the facts which he claimed constituted the contributory negligence of the plaintiff. He testified in substance that Cefalu said to him that if he (defendant) moved the house, plaintiff would stay in it; if he cut the house in two, he was going to move; that the plaintiff saw the cave-in three days before; that plaintiff had a chance to move out; that he had a right to move; that plaintiff said to him: "I owe you $17." "He gave me $10, and $7 he kept, and then the house after two or three days fell in." This evidence was doubtless overlooked by counsel appearing here, as he was not the same who appeared for defendant in the trial court.

[6] The court instructed the jury by instruction No. 1 to return a verdict for the plaintiff, and that the only issue for the jury to determine was the amount of his damages, if any, and refused to give requested instruction No. 5, which was to the effect that to authorize a recovery for damages occasioned by the alleged negligence by another, the plaintiff must have exercised that reasonable degree of care to avoid the injury which an ordinarily prudent person would have exer

Appeal and error ›1001(1)—Vérdict for minor employee held not to show such passion, prejudice, or sympathy as to require reversal.

In action by minor for loss of fingers in feed grinding machine, evidence held sufficient to sustain verdict for plaintiff and not to show such passion, prejudice, or sympathy as to require reversal.

2. Evidence

598(1)—Weight and sufficiency of evidence not determined alone by greater number of witnesses.

Weight and sufficiency of evidence is not to be determined alone by greater number of witnesses, but by greater weight and sufficiency of evidence, of which jury is sole judge. 3. Negligence

122 (1) — Burden of proving contributory negligence on defense.

Instruction that burden of proving affirmative defense of plaintiff's contributory negligence is on defendant is correct, where issue of contributory negligence is in case.

4. Master and servant 262(4)—Answer held sufficiently to state employee's contributory negligence.

Employer's answer. alleging that employee had been warned of dangerous character of feed grinder and not to put his hand in proximity with the rollers, etc., but that he negligently, carelessly, and recklessly attempted to clean grinders by placing his hands in working parts,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(227 P.)

resulting in his injury, held sufficiently to state | work the injury was inflicted. This grinder plaintiff's contributory negligence.

Error to District Court, Weld County; evidence is practically of no probative force, A. F. Hollenbeck, Judge.

or where the verdict is manifestly against the weight of the evidence, or the jury were governed by passion or prejudice, the defendant's counsel, in analyzing the evidence, in a cogent and persuasive argument-quite appropriate, of course, to a jury-contends that this record brings the judgment under Coen & Sauter, of Sterling, for plaintiff in review within an exception that is as well

Action by T. Wayne Powell, by his next friend, S. T. Powell, against the Pawnee Farmers' Elevator Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Thomas A. Nixon, of Greeley, for defend- only negligence charged in the complaint is ant in error.

a failure of the defendant's manager to give to the plaintiff employee proper instructions how to run or operate the feed grinder on which he was working at the time of the injury. The testimony upon this issue is in irreconcilable conflict. The plaintiff, as stated, testified that he was an inexperienced schoolboy, unacquainted with machinery, unaware of the dangerous character of the feed grinder, received no instructions from the defendant as to how the work should be done, was not informed as to the dangerous character of the machine, and that, in his at

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tempt to remove the obstruction, he was act-] ing in accordance with, and adopting, the method which the manager himself only a few minutes before in his presence had employed in removing a like obstruction. The manager testified that he had given full and complete instructions to the employee how to work at the grinder, had told him that it was dangerous, and that he should never put his hand into the hopper to remove an obstruction, and that he was to use a stick near at hand for such purpose. Two other witnesses for the defendant, apparently disinterested, one of whom is a cousin of the plaintiff, each testified that on separate occasions the dangerous character of this machine was called to the plaintiff's attention before he sustained the injury, and that the plaintiff was aware of the danger incident to its operation, and, in effect, was himself guilty of negligence that caused the injury. The plaintiff is corroborated in some respects by some of his own witnesses. It may be, and doubtless is, true that, as to the material facts, more witnesses testified in favor of the defendant than for the plaintiff, but the weight and sufficiency of evidence is not to be determined alone by the greater number of witnesses but by the greater weight and sufficiency of the evidence, of which the jury is the sole judge. Though there are some facts and circumstances in the record that tend to show, as the defendant argues, that the sympathy of the jury might have been aroused on account of the injury and the consequent financial loss to the plaintiff and his disfigurement, we cannot say with entire confidence that the jury was controlled by passion or prejudice or by sympathy to such an extent as to require us to set aside its verdict.

of such warnings and contrary to the instructions negligently, carelessly, and recklessly attempted to clean the grinder by placing his hand in proximity with the working parts, and because of such negligence the injury was inflicted. If this does not state contributory negligence, we do not know what its purpose was or how contributory negligence could be more clearly stated. As we read the argument of defendant's counsel, the real objection is that the court used the expression "contributory negligence" instead of "negligence." If there is any material difference, so far as concerns this objection, between these expressions, the use by the court of "contributory negligence" was less harmful to the defendant than would have been the word "negligence."

[5] 3. The court in its own instructions. neither expressly nor by implication, informed the jury that it must appear from the evidence that the plaintiff himself was free from fault or negligence in order to recover. The defendant tendered an instruction, which the court refused, that the law imposed upon the plaintiff the use of ordinary care for self-protection against injury, and that, if plaintiff in this respect failed, he could not recover. In 26 Cyc. pp. 1507, 1508, the author says that, where, under the pleadings and the evidence in a personal injury case, an instruction on contributory negligence is applicable, and it is given, the court should also instruct as to what constitutes such negligence and its effect; and as to the degree of care required by a servant in doing his work out of which the injury arose, and, if the same is not observed, its effect should be stated. We think it was prejudicial error of the court in neglecting to inform the jury as to the plaintiff's duty to exercise reasonable care. The court in its instruction No. 4 stated four things which must appear from the evidence to entitle plaintiff to a recovery: (1) Defendant's negli

[3, 4] 2. The court instructed the jury, in substance, that, where a defendant sets up as an affirmative defense that the plaintiff was guilty of contributory negligence which caused or contributed to the injury, the bur-gence complained of; (2) that it caused the inden of proof is upon him to prove it. this state this court has frequently announced that doctrine. We see no objection to this instruction, if the issue of contributory negligence was in the case. The defendant, however, says that the defendant did not plead it; hence the giving of this instruction, being upon an issue not involved, was error. We do not so read the defendant's answer. It specifically and affirmatively alleges that the plaintiff, after having been duly informed by defendant's manager how to operate the machine, and having been warned of its dangerous character, and that he should never in its operation place his hand in proximity with the rollers, or attempt to clean it while it was running and in operation, and never to use his hands for that purpose, but should use a stick provided therefor in cleaning the machine, disregarded these instructions and in violation

Injury; (3) that plaintiff was thereby damaged ; (4) the amount of such damage. In the same instruction the burden of proof was properly placed on defendant to establish contributory negligence of plaintiff. But nowhere was the jury told the effect of contributory negligence, if found, or what would be the effect if it appeared that reasonable care was not observed by plaintiff. With such instructions as were given as to the care or lack of care of the parties, the jury might have found, and were authorized to return, a verdict for plaintiff, even though they believed his own evidence showed negligence on his part that directly contributed to the injury.

[6, 7] 4. In another instruction to the jury the court said that in estimating damages for the plaintiff, if damages were awarded, the jury should take into consideration, among other things, the loss of wages which resulted to him from the injury, if any, the

(227 P.)

nature and extent of his physical injuries, [ [8] 5. The defendant complains of an inand their effect upon his ability to earn his struction by the court that the plaintiff, as living, and the probable effect of these in- one element of his damage, was entitled to juries upon his future earning capacity as recover for permanent disability to work in will naturally follow from their nature. The the future and for a decrease of his earning plaintiff himself testified as to the amount power caused by the injury. The objection of the loss of his wages, which was less than is based upon the fact that there is no evi$100, and the court should have told the dence in the record of any diminution of jury that for loss of wages their verdict plaintiff's ability to work, or that his earncould not exceed the estimated sum. This ing capacity will be less because of the injuinstruction was also erroneous because the ry. Plaintiff's counsel, on the other hand, jury were told that in estimating plaintiff's says that, since the plaintiff is a schoolboy, future earnings he was entitled to a recov- and had never engaged in any occupation, ery thereof during his minority, and it did it was impossible to give any specific evinot restrict the time to that following his dence upon this point, and that the jurors, majority. A father is entitled to the earn- in the absence of such estimate, may deterings of a minor during his minority, unless mine for themselves and upon their own exthe minor has been emancipated. The mere perience in life the amount of this element fact that in this case the father, as the next of damage. We are impressed with the reafriend of the minor, brought the action is soning of plaintiff's counsel in so far as connot equivalent to emancipation. The father cerns evidence of some specific amount of would still, unless the son was emancipated, earnings; that is, the plaintiff should not be have a right of action against the defendant, denied any recovery at all for diminished if its negligence caused the injury, for dimin-earning power merely because he is unable ution in the earning capacity of his minor to give specific evidence of the amount of son during minority, and the minor son himself has a cause of action against the defendant for the same injury because he suffered physical injury. 29 Cyc. p. 1642; C. B. & Q. R. R. Co. v. Krayenbuhl, 65 Neb. 889, 91 N. W. 880, 59 L. R. A. 920; King v. Viscoloid | Co., 219 Mass. 420, 106 N. E. 988, Ann. Cas. 1916D, 1170; Comer v. Ritter Lumber Co., 59 W. Va. 688, 53 S. E. 906, 6 L. R. A. (N. S.) 552, 8 Ann. Cas. 1105.

In the West Virginia case is a thorough discussion of the subject and a review of the authorities. In Burdsall v. Waggoner, 4 Colo. 261, the court states the general rule to be that a father is entitled to the earnings of his son during minority. In that case it was said, which is true, that this right may be relinquished by the father. There are, however, no facts present in this record which bring the case within the exception to the general rule, and, as we have already said, the mere fact that the father, as the next friend, brought this suit, is not equivalent to emancipation or relinquishment of right to the earnings of his minor son. The instant action is in the name of the minor by his next friend, the father, but it is to recover for personal injuries which the minor himself has sustained and for which he is entitled to damages in his own behalf other than for earnings during minority. Without some further allegation in the complaint and evidence in its support than this record contains, the minor is not entitled to recover for possible future earnings during the remaining period of his minority, for those belong to the father until properly relinquished.

his earnings before the accident, as compared to what they would be thereafter. But there should be some evidence in the record of the probable effect upon future earning capacity, which the injuries occasioned. A physician might be able to give valuable information upon this issue. We are inclined to the view that under the doctrine of The Diamond Rubber Co. v. Harryman, 41 Colo. 415, 92 Pac. 922, 15 L. R. A. (N. S.) 775, there being no evidence at all here to establish these elements of damage with reasonable certainty, there was no proper basis for their allowance. In City of Freeport v. Isbell, 83 Ill. 440, 25 Am. Rep. 407, and in Chicago, I. & L. R. R. Co. v. Thrasher, 35 Ind. App. 58, 73 N. E. 829, and in City of Boulder v. Stewardson, 26 Colo. App. 290, 143 Pac. 820, instructions much like instruction No. 6, given by the court in the instant case, were held improper because of the absence of any reasonable certainty to sustain them. In the event of a new trial such evidence as to decreased earning power, absent from this record, may be supplied. There are no facts, however, in the present record to justify that portion of instruction No. 6 as to damages for decrease of earning power.

Not because of the insufficiency of the evidence as a whole to warrant some damages, but because of the error of the court in giving erroneous instructions as indicated, must this judgment be, and it is accordingly, reversed and the cause remanded. Reversed and remanded.

TELLER, C. J., and SHEAFOR, J., con

cur.

ATCHISON, T. & S. F. RY. CO. v. PAGE. (No. 10840.)

(Supreme Court of Colorado. July 7, 1924.) I. Railroads 327 (2)-Truck driver held negligent.

Truck driver looking down straight railroad track with open view, without seeing approaching train at distances of 1,000, 500, or 125 feet, held contributorily negligent, as matter of law, in not stopping before reaching crossing. 2. Railroads 337 (5)-Failure to give signal held not proximate cause of collision.

Failure to ring bell or sound whistle on approaching crossing held not proximate cause of collision with truck, driver of which looked toward approaching train 100 or 200 feet away in time to stop before reaching crossing. Teller, C. J., dissenting.

En Banc.

away; that at 60 feet from the Santa Fé tracks when the train must have been from 250 to 500 feet distant he looked again but did not see it, and that at 30 feet from the

track, when the engine must have been say 125 feet away, he looked a third time and did not see it. There was even then time and space for him to stop. Evidence that a man looked down a straight railroad track with open view for the purpose of seeing and failed to see an approaching train 125, 500, or 1,000 feet distant is not worthy of consideration. D. & R. G. R. R. Co. v. Buffehr, 30 Colo. 27, 35, 69 Pac. 582. If the driver, as he testified he did, and as we must therefore assume he did, looked toward

the approaching train 100 or 200 feet away

in time to stop before he reached the crossing, the failure to ring or whistle was not the proximate cause of the mishap.

If the driver had testified that he trusted

Error to Arapahoe County Court; George to hearing the crossing bell, the engine bell, W. Dunn, Judge.

Action by W. T. Page against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Reversed with directions.

Erl H. Ellis and Rogers, Johnson & Fuller, all of Denver, for plaintiff in error.

W. S. McGintie, of Littleton, for defendant in error.

or the whistle, and, not hearing any of them, was misled and so did not look, different questions would have arisen.

The former opinion is withdrawn, and the judgment reversed, with directions to enter judgment for defendant.

The CHIEF JUSTICE dissents.

ROWS. (No. 10862.)

(Supreme Court of Colorado. July 7, 1924.) 1. Municipal corporations 764(1)-Reasonably safe sidewalk sufficient.

DENISON, J. [1] Page had a verdict and judgment in the Arapahoe county court CITY AND COUNTY OF DENVER v. BURagainst the defendant railway company, in an action begun before a justice of the peace, for negligence which resulted in a collision and injury to plaintiff's truck. The court denied a motion for a directed verdict; the company brings error. The negligence relied on was failure to ring the crossing bell or the engine bell or to blow the whistle. The facts are undisputed. The question argued is whether the plaintiff's servant, who was driving the truck, was, under the evidence, guilty of contributory negligence. We think he was, and also that, under the evidence, the negligence proved was not the proximate cause of the collision.

[2] The collision occurred at the Main street crossing in Littleton. The Santa Fé track (the defendant's) is there about 150 feet east of and parallel to the track of the Rio Grande road. The truck was a Ford, loaded, moving east up grade, at five or six miles an hour, had crossed the Rio Grande track, and was struck on the Sante Fé track by a north-bound train. At every point in its course between these tracks there was an unobstructed view along them to the south for a long distance, perhaps more than half a mile. The evidence is that, when at the Rio Grande track, the driver looked south but did not see the train, which must then have been between 500 and 1,000 feet

Mere irregularity of surface of way does not of itself make city liable and it is liable only for failure to maintain reasonably safe sidewalk.

2. Municipal corporations

821 (3)-Neg

ligence in maintaining sidewalk may be ques: tion of law.

Whether city is negligent in maintaining sidewalk may be either question of law for court or of fact for jury, depending on facts. 3. Municipal corporations 768 (3)-Irregularity of surface of sidewalk held not actionable defect.

Irregularity of 15% inches in cement blocks of sidewalk held, as matter of law, not to make sidewalk unsafe for public travel so as to make city liable for injuries to pedestrian who stumbled.

Department 1.

Error to District Court, City and County of Denver; Charles C. Butler, Judge.

Action by Meda Burrows against the City and County of Denver. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.

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