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law of the case for the district court in the event of another trial, which learned counsel for defendants evidently persuaded the trial court it was its duty to disregard, defendants correctly say that the decision un

acquire any title to a coal mine thereon pending cancellation of his entry, and his obtaining of an injunction on the strength of his supposed rights before his entry was canceled was as much of a fraud on the court's jurisdiction as was his entry a fraud on the government. [Ed. Note.-For other cases, see Mines and der the authority of Brown v. Tourtelotte, Minerals, Dec. Dig. § 29.*]


By an entry on land the entryman became the equitable owner, though it was afterwards necessary to amend his entry to describe the land before he received a patent.

[Ed. Note. For other cases, see Public Lands, Cent. Dig. § 54; Dec. Dig. § 32.*] 8. APPEAL AND ERROR (§ 1061*)-HARMLESS


A nonsuit is prejudicial error where the evidence as to damages is sufficient to go to the jury.

24 Colo. 204, 50 Pac. 195, and our subsequent cases to same effect, does not constitute the law of the case for this court. The point made is of no importance here, for Mr. Justice Gunter's opinion on the review in the Court of Appeals, as we shall presently see, correctly declares the law, and, in disposing of this appeal, we shall give full ef

fect to it. The evidence on the second, was, not materially different from that produced at the first, trial, though in some respects it may be more full and explicit. Holding, as we do, that the legal questions were correctly decided on the first review, they are, Appeal from District Court, Gunnison for that reason, to be applied to the facts County; Theron Stevens, Judge.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1061.*]

Action by the Baldwin Star Coal Company against Michael Quinn and others. From a judgment for defendants, plaintiff appeals. Reversed.

S. D. Crump and Sprigg Shackleford, for appellant. Brown & Noursek and Dexter T. Sapp, for appellees.

CAMPBELL, J. Action by the obligee in an injunction bond against the obligors to recover the damage which it says it suffered as a result of the wrongful suing out of the injunction writ. At the, close of plaintiff's testimony, defendants offering none, the court granted defendants' motion for a nonsuit and dismissed the action, and the former is here with its appeal.

There have been two trials in the district court. At the first one plaintiff recovered a judgment for $1,500, which, on appeal to the Court of Appeals, was reversed upon the sole ground that $500 thereof was allowed for attorney's fees which plaintiff paid his counsel in the injunction suit, and the evidence failed to disclose how much of it was incurred in procuring a dissolution of the injunction, which particular part only was covered by the bond. It was, of course, wrong to include in the allowance what, if anything, plaintiff paid his attorneys for services in connection with the case generally. Quinn et al. v. Baldwin Star Coal Company, 19 Colo. App. 497, 76 Pac. 552.

elicited in the second trial.

The material facts, on which the decision rests, are fully and chronologically stated in the opinion of the Court of Appeals to which we refer. It is sufficient for our present purpose to say that plaintiff claimed to be the owner and, through its lessees, was in actual possession of and working a coal mine in Gunnison county. Defendant Quinn, claiming ownership of the same property, brought an action in the district court against plaintiff company and its lessees, and obtained a temporary writ of injunction restraining them from operating, working, taking out, or selling any coal from the premises. The restraining order was in force for nearly three years, and until plaintiffs in that action, defendants here, voluntarily dismissed it, which carried with it a dissolution of the writ. There being no evidence by defendants at the second trial, the evidence introduced by plaintiff, and all legitimate inferences therefrom, must be taken as true in determining the ruling on the motion for nonsuit. Substantially the same evidence, when before the Court of Appeals, in the absence of contrary proof by defendants, was held sufficient to prove the allegation of damage which plaintiff claimed it sustained by the falling of the mine workings pending the writ. We are in accord with the Court of Appeals, and are of opinion that the trial court was wrong in taking the case from the jury upon this issue. Upon the question of profits we withhold expression of opinion, as the erroneous ruling on that of damage to the freehold requires a reversal of the judgment. Defendants, however, while insisting that evidence upon this issue should not have been submitted to the jury, say, nevertheless, that if it were otherwise, for other reasons disclosed by the record, plaintiff was not entitled to a recovery, and to these we address ourselves. Before the rights of any of the parties

Counsel for defendants, appellees here, in their brief say: "The same questions raised at the first trial and passed upon by the Court of Appeals were presented at the second trial and are before this court for determination on this appeal." It thus appears that we are asked by counsel for defendants to redetermine the questions of law and fact hitherto determined by the Court of Appeals. While the decision of that tribunal on the former appeal was the

here attached, the lands in controversy were | jurisdiction to permit an amended entry to a part of the public domain-coal lands- be made, and it likewise has jurisdiction to described as the north half of a certain quar- cancel an entry upon the ground of fraud. ter section in Gunnison county. One Spran- It did so in the proceeding referred to, and kle made entry upon this tract under the determined therein that a fraud had been federal laws, and intended to file upon it perpetrated by Quinn upon the government as the north half of the quarter section, and that his original entry was fraudulent. which is its true description, but through His alleged rights were therefore void ab some mistake his filing papers described it initio. He is the one who is now questionas the south half of the section. Quinn, a ing the right of the Land Department to defendant in this action and who procured make the decision which it did in respect to the writ of injunction, after Sprankle had the Sprankle amendment. We agree with made and taken possession under his filing, the statement of the Court of Appeals that made entry upon the same north half. the decision of the Secretary of the Interior Sprankle at once protested Quinn's filing, annulling Quinn's entry, and permitting the but it was allowed by the local land office. amendment of Sprankle's entry, cannot be Afterwards steps were taken by Sprankle, collaterally attacked as is here attempted. in the United States Land Office, to have The Secretary certainly had jurisdiction of Quinn's entry canceled on the ground that both questions, and even if a wrong deciit was fraudulently made, and for leave to sion was made, which we do not say is true, amend his own filing by writing therein the his jurisdiction was unquestioned, and his true description. The controversy finally decision is binding upon this court in the reached the Secretary of the Interior, and, pending action. As the question has not upon the conveyance to the government of been argued, we do not pause to inquire as the south half of the quarter section, on to the relative rights of the parties under which he had no intention of filing, but our own public land laws concerning occuwhich was the tract actually described in pying claimants. his original entry, and which had gone to patent, Sprankle was given leave to change his filing and entry so as to make it cover his filing and entry so as to make it cover the north half of the section, which was the tract actually entered upon by him, and which he intended to file upon in the first instance. The decision, also, was that Quinn, though he had received a receiver's receipt under his filing upon the north half of the quarter section, was guilty of a fraud in making his entry. His entry and the receiver's receipt were for that reason canceled and declared void. When patent to Sprankle

was issued for the north half of the section, it was made to relate back to the time of his original entry, which antedated the inception of the supposed rights of Quinn. Plaintiff company, the remote grantee of Sprankle, has whatever rights he acquired

to the land in dispute.

With this statement of the salient facts, we take up the objections to plaintiff's recovery which defendants have argued. All of them may be summed up in the general statement of defendants' counsel that the proceedings in the Land Department by the Secretary of the Interior are void. Their contention is that while the Land Department, which is intrusted with the exclusive management and disposition of public lands, may, in a proper case, permit an entry to be amended by allowing the correct description to be inserted, nevertheless, it cannot make the amended relate back to the time of the original entry. The Land Department has

Another position is that until Quinn's entry was canceled he had a superior title to this coal mine. This position is wholly untenable. Quinn's entry was fraudulent in its inception. He never acquired any rights ab initio. Obtaining an injunction by Quinn to the premises. His alleged title was void from the district court, upon the strength of a supposed rightful title, was as much a fraud upon the jurisdiction of the court as was his entry in the Land Office a fraud upon the United States government.

As part of the same contention it is also said that no injury was done to the freehold for which a recovery can be had, because title to this particularly described tract was not in plaintiff when the injunction writ was served. The Court of Appeals thought there was, and upon substantially the same evidence in this record we are of the same opinion, and that plaintiff was the equitable owner. Questions of law here raised by defendants, appellants here, are resolved against them. The evidence being sufficient upon the question of damages to go to the jury, the granting of defendants' motion for a nonsuit was prejudicial error. The judgment is therefore reversed and the cause remanded, with instructions that if further proceedings be had they be in accordance with the views herein expressed.

Reversed and remanded.

STEELE, C. J., and MUSSER, J., concur.

SILKA et al. v. QUINN et al. (Supreme Court of Colorado. Dec. 6, 1909.) 1. INJUNCTION (§ 261*)-ACTION FOR WRONGFUL INJUNCTION EVIDENCE AS TO DAMAGES. In an action for a wrongful injunction against the working of a leased coal mine, evidence held to show damages resulting from loss of profits which might have been made. [Ed. Note.-For other cases, see Injunction, Dec. Dig. § 261.*]



In an action for a wrongful injunction against the working of a coal mine by lessees, it was error to admit a receiver's receipt for land, including the mine issued to one of the defendants by the Land Department, but subsequently canceled because his entry was fraudulent, introduced to induce the jury to believe he was the owner of the property when he sued out the writ; and lessees had no right to mine the coal, and so were not damaged thereby.

[Ed. Note. For other cases, see Injunction, Dec. Dig. § 261.*]


For a wrongful injunction against the working of a coal mine by lessees, they are entitled to recover on the bond such damages as were the direct and proximate result of the service of

the writ.

[Ed. Note. For other cases, see Injunction, Dec. Dig. § 261.*]

Appeal from District Court, Gunnison County; Theron Stevens, Judge.

Action by Edward Silka and another against Michael Quinn and others. From a judgment for defendants, plaintiffs appeal. Reversed. Sprigg Shackleford and S. D. Crump, for appellants. Brown & Nourse and Dexter T. Sapp, for appellees.

CAMPBELL, J. This action was submitted and argued in connection with No. 5,789, The Baldwin & Star Coal Company v. Quinn et al., 105 Pac. 1101. The judgment for plaintiffs on the first trial was reversed by the Court of Appeals for the same reason that required a reversal in the other cause. Quinn v. Silka, 19 Colo. App. 507, 76 Pac. 555. The facts out of which the controversy arose are the same in the two actions, and the evidence was substantially the same at both trials. This action is by the lessees of the coal company to recover damages sustained by them as the result of the service of the writ of injunction referred to in the opinion in the other action, which prevented them for several months from mining, shipping, and selling coal, the right to do which was given them under the lease from the Baldwin Coal Company.

The case was submitted to the jury which returned a verdict for defendants. It cannot stand. We need not repeat what was said in the opinion in the other case as to the controlling questions of law. The only damages sought to be recovered here are the profits which plaintiffs probably might have

made had not the injunction been issued. It is a case where the business was an established one. There was an outstanding contract for the sale of all coal which plaintiff could mine. The evidence discloses these facts, and that plaintiffs could and would, with reasonable certainty, have mined and delivered and shipped a given number of tons on which it would have made a profit of a fixed sum per ton. It was conceded that plaintiffs were prevented by the injunction from working the mine. Upon these material facts there was no controversy, except that, according to the indefinite recollection of a witness for defendant, during the winor in question there was much snow, and on some of the days the railroad was blocked and shipments could not be made, but the number of the days was not specified. There was no proof that all the coal defendants mined would not, or could not, have been delivered and transported during the term of their lease. Certainly there was testimony, reasonably certain and definite and precise, to warrant a judgment in favor of plaintiffs. The only thing for the jury to do, if they believed plaintiffs' evidence, was to make a mathematical computation in order to de

termine the amount of profits.

We can account for the verdict only on the ground that the jury were misled to plaintiffs' prejudice by the ruling of the court, over their objection, in admitting in evidence, at the request of defendants, the receiver's receipt for the land, including this coal mine, which was issued to Quinn by the Land Department. It appeared from the defendants' answer itself that this receipt was subsequently canceled by the Land Department because Quinn's entry was fraudulent. It therefore conferred no rights whatever upon him, and it should not have been received in evidence. The only purpose of its introduction, and it undoubtedly accomplished that object, was to induce the jury to believe that, at the time Quinn sued out the writ of injunction which restrained plaintiffs from working the mine, he was the owner of the property in question, and therefore plaintiffs had no right to mine coal, and were not damaged by the granting of the writ which prevented their doing so. For this prejudicial error alone the judgment would have to be reversed. It was determined in the other action that plaintiffs' lessor was the equitable owner of the property at the time Quinn sued out the injunction, and that Quinn never had any valid rights in the premises which he could enforce in court. And we say, as did the Court of Appeals in its opinion on the review of the judgment rendered in this action at the first trial, that these lessees are entitled to recover upon the injunction bond damages such as were the direct and proximate result of the service of the writ of injunction.

The judgment is reversed and the cause | tent on the part of plaintiff or his attorney to remanded, with instructions to the district mislead. court, if further proceedings are had, they

be in accordance with the views herein expressed.

Reversed and remanded.

STEELE, C. J., and MUSSER, J., concur.

MILLER v. CAMP BIRD, Limited. (Supreme Court of Colorado. Dec. 6, 1909.) 1. MASTER AND SERVANT (§ 216*)-INJURIES TO SERVANT-ASSUMED RISK.

Plaintiff, on the day of his injury, was engaged in helping D. plank an ore chute at defendant's mine; the custom being for D. to nail one end of the plank and plaintiff the other. At about quitting time D. started to drive a spike into the plank just beneath where plaintiff stood, but the spike bounded. D. started another, which bounded in a similar fashion. When D. started a third, he uttered an angry exclamation, drew back to gain greater force, and attempted to drive the spike with a violent blow, which struck the spike in such a manner that it was driven upwards swiftly, and struck plaintiff in the eye, destroying his sight. At that time plaintiff's head was about six feet above the point where D. attempted to drive the spike, and

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it appeared that, though spikes had previously bounded during the day, none of them had appeared dangerous. Held, that plaintiff did not assume the risk of D.'s negligence in striking the spike so forcibly in an angry manner, under the rule that it is only such risks as are obvious to a person of ordinary intelligence, ability, and experience, and which arise out of the conditions of affairs that surround the employé at the time, that he assumes.

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[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 567-573; Dec. Dig. § 216.*]


Before an employé will be held to have assumed a risk, it must appear that he appreciated the danger, and voluntarily assumed it.

Servant, Cent. Dig. § 806; Dec. Dig. § 252.*]

[Ed. Note.-For other cases, see Master and


Under Act 1893, p. 129, c. 77, providing that no inaccuracy in a notice of a servant's injury as to the time, place, or cause of the injury shall be fatal, provided it is shown that there was no intention to mislead, and that the party entitled to notice was not in fact misled, whether an inaccuracy in a notice was intended to mislead, and did in fact mislead is for the jury. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 284.*]


Where an employer maintained a hospital, at which employés were entitled to treatment for $1, per month, an injured servant was only entitled to such reasonable care as the hospital afforded, and was not entitled to have his injured eye treated, at the hospital or elsewhere, under his hospital right by a specialist.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 143; Dec. Dig. § 92.*] Error to District Court, City and County of Denver; Frank T. Johnson, Judge.

Action by Charles M. Miller against the Camp Bird, Limited. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

B. E. Woodward and Lucius W. Hoyt, for plaintiff in error. Thomas, Bryant & Malburn, Goudy & Twitchell, and C. H. Redmond,

for defendant in error.

MUSSER, J. The plaintiff The plaintiff in error, who was plaintiff below, began work for the defendant in the Camp Bird mine on November 11, 1902. The first day he carried plank into the mine; the next day he was engaged in putting timbers overhead in a tunnel; the third day he sawed plank in the tunnel and helped to elevate the plank, after being saw

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 575; Dec. Dig. § 217.*] 3. MASTER AND SERVANT (§ 252*)-EMPLOY-ed, to a stope; on the fourth day, the 14th ER'S LIABILITY ACT-NOTICE OF INJURY.

Employer's Liability Act 1893, p. 129, c. 77, provides that before an action can be maintained thereunder, a written notice of the time, place, and cause of the injury must be given to the employer within 60 days, and the act of 1893 declares that no such notice shall be deemed invalid or insufficient solely because of inaccuracy in stating the time, place, or cause of the injury, provided it is shown that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby. Plaintiff, a servant, was injured on November 11, 1902, and on December 19th his attorney mailed a letter to defendant's resident manager, stating the time and place of the injury for which compensation was asked, and referring to and inclosing another letter from plaintiff's physician, reciting that plaintiff was injured in the left eye on November 14, 1902, in Camp Bird mine; that his left eye was ruptured by the blow he received, etc. Held, that the physician's letter became a part of the letter of the attorney, and together they constituted a sufficient notice of an intent to sue; there being other evidence clearly showing an absence of any in

day of November, he was engaged as a helper with one Dalra in planking an ore chute. The planks were nailed to stulls, which were about six feet apart. Dalra stood on the stull to which he nailed the lower ends of the planks, and the plaintiff stood on the next stull above, nailing the upper ends of the planks. They had two single jacks and two axes. A single jack is a double-headed hammer; the heads being flat instead of round. The axes were the ordinary axes used in chopping, except that the handles were about two feet long. Dalra would first nail the lower end of a plank, and then the plaintiff would nail the upper end. Dalra used an axe or a single jack alternately. They thus continued, until about quitting time. About that time, Dalra watched the plaintiff drive a nail into the upper end of the plank, and offered to drive one for the plaintiff.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

The plaintiff assented, and handed Dalra a single jack, but Dalra took an axe instead. Dalra started a spike into the plank just beneath where plaintiff stood, and attempted to drive it through the plank into the stull, but it bounded. Dalra started another spike, and it bounded. He started a third one, uttered an angry exclamation, drew back to gain greater force, and attempted to drive the spike with a violent blow; or, as the plaintiff described it, "Dalra drew back and used his whole force." The spike was struck in such a manner, and with such violence, that it was driven upwards swiftly, and struck the plaintiff in the eye. At that time plaintiff's head was about six feet above the point where Dalra attempted to drive the spike. The plaintiff's eye was very much injured, and had to be removed. The planks used were somewhat knotty, although there is no evidence that Dalra was attempting to drive the spike through a knot. When Dalra started to drive the spike that struck plaintiff, the plaintiff told him "to look out, or you'll get hurt." Several times before that, during the afternoon, the spikes which Dalra was attempting to drive in the lower end of the plank bounded away, and once or twice the plaintiff warned Dalra to be careful or he would hurt himself. While Dalra was driving the spikes in the lower end of the planks, his body was between the spikes and the plaintiff. The axe used by Dalra to drive the spike that struck plaintiff was an old one, somewhat battered and rounded. When plaintiff was employed by the defendant, he was told that the wages would be $3 a day; that the company had a hospital at Ouray, near where the mine is located, with firstclass physicians, and that plaintiff could have the use of the hospital, with board, bed, medicine, and physicians. The plaintiff's testimony leaves the impression that he was to receive those things "in case I got sick with a fever or something that way." Later on the plaintiff received his pay for the 4 days he had worked in the mine, less $1 deducted for hospital fees. After the accident, plaintiff was taken to the hospital at Ouray, where he remained for 16 days, during which time he was waited upon by the physician in charge, and cared for by the Sisters who conducted the hospital. He then asked the physician if he had better go to an oculist. The physician said it would be better, and gave him the names of several oculists in Denver, and wrote a note to one of them. The plaintiff went to the oculist to whom the note was directed. This oculist treated the eye for several days, and then caused it to be removed. The plaintiff paid the oculist about $232.50 for services, and he also paid $14.30 for railroad fare from Ouray to Denver.

Plaintiff brought this action, setting forth in his complaint two causes of action. In the first he seeks to recover under the employer's liability act of 1901 (Laws 1901, p.

quence of the negligence of a co-employé. The act provides that an employer shall be liable in damages for injuries which may result to an employé from the carelessness or negligence of another employé, in the same manner and to the same extent as if the carelessness or negligence causing the injury was that of the employer. After stating that Dalra was engaged with him in constructing an ore chute, and that it was the duty of Dalra to provide himself with and to use reasonably proper, safe, and sufficient tools with ordinary care, the complaint alleges: "That, notwithstanding his duty, said Dalra did negligently omit to provide himself with and to use reasonably proper, safe, and sufficient tools with ordinary care in and about the doing of said work, and, contrary to his said duty, did negligently provide himself with and use improper, unsafe, and insufficient tools with lack of ordinary care as to cause a nail, which he was attempting to drive into said lumber with an axe, to bound and fly therefrom and strike plaintiff in the left eye." In the second cause of action, the plaintiff alleges that, as a part of the contract of employment between himself and defendant, it was agreed, in consideration of the sum of $1 a month, to be deducted by the defendant from such wages as might from time to time accrue to plaintiff, that the defendant would provide the plaintiff with such medical and hospital treatment as might become necessary or proper in the treatment of any injuries that plaintiff received while so employed, and that during the time of such treatment the defendant would keep, care for, and maintain the plaintiff; that the plaintiff was injured on the 14th day of November, 1902, while working for the defendant, by reason whereof medical and hospital services and treatment became, for a long time, necessary and proper; that the defendant was requested to provide the plaintiff with such medical and hospital services and treatment, which it failed to do, and likewise failed and refused to board, keep, care for, and maintain plaintiff during the time that medical and hospital services and treatment were needed and proper, and further sets out the expenditure of $232.50 for hospital and medical services and $14.30 for railroad fare, and $100 for board, care, and maintenance, all of which he seeks to recover. At the close of plaintiff's case the defendant asked the court to direct the jury to return a verdict in its favor as to both causes of action. The motion was granted by the court, and the verdict directed. The plaintiff duly excepted to the direction of the verdict by the court, and also duly excepted to the verdict as rendered pursuant to the direction. The plaintiff now seeks to have the action of the court in directing the verdict reviewed.

But two questions, relative to the first, cause of action, are submitted for consideration: First. Did the case, as made by plain

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