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cense from the county is no defense to this person taking will naturally throw into the action. If the jurisdiction of the town and

street. county is concurrent, the defendant must

3. Under Code 1887, $ 187, subd. 6, requir.

ing instructions to be in writing, the oral inproduce a license from both before he can struction of a jury is error, defendant objecting. legally engage in the traffic. Heinssen v. 4. On a trial for violating an ordinance pro. State, 14 Colo. 228, 23 Pac. 995, and authori

hibiting the distribution of handbills in the

street which the person receiving would probaties there cited.

bly throw into the street, the question whether Assuming that section 4403, Mills' Ann. the handbills distributed were within the orSt. gives the town exclusive authority, it is

dinance is for the jury. said that the location of the defendant's place Error to county court, Arapahoe county. of business makes Argo and Elyria "adjoin- John Wettengel, convicted in a police court ing” towns, within the purview of the stat- of the violation of a city ordinance, upon ute, and so takes this case out of its opera- appeal to the county court was again contion, and revives the jurisdiction of the coun- victed, and from the judgment therein brings ty of Arapahoe. Without expressing an error. Reversed. opinion upon this point, it is sufficient to say The plaintiff in error was found guilty in that the defendant, having no license from the police court of the city of Denver of the town of Argo, cannot avail himself of the violation of an ordinance of said city this defense, if any it be, and this case should which prohibited the distributing of handbe decided as though the town of Argo were bills and circulars upon the streets. He apnot in existence.,

pealed to the county court of Arapahoe coun: The attack upon the validity of the ordi- ty, and upon trial there, before the court and nance is not successful. The record of Feb- a jury, was also found guilty, and sentenced ruary 17, 1891, is not a model, but it appears to pay a fine of three dollars, and costs of the therefrom, with reasonable certainty, that all prosecution. From that judgment he brings the members of the town board were pres- the case to this court upon writ of error. ent at the meeting, and that the entire six Section 2 of the ordinance upon which this voted for the ordinance, upon its passage, prosecution was based is as follows: "No and that it was passed uuanimously. The person shall hand to or offer to any traveler clerk, in writing the record, confuses the or other person traveling along or upon any dates, by making it appear that the ordinance street, alley, lane, public place or enclosed was passed August 28, 1890, instead of Feb- public grounds in the city of Denver, any ruary 17, 1891, but a fair construction of the handbill, paper, advertisement, circular or entire record leaves no doubt that the stat- other thing of such nature or cbaracter that ute in question was complied with. Even the traveler, person or persons taking the if the original record showed that the ordi- same will naturally or probably throw or nance was invalid for the reason alleged, the deposit the same immediately after so taksupplemental record shows a literal and ex- ing the same upon or litter or obstruct any act compliance with the statute. The de- street, alley, lane, public place or enclosed fendant having acquired no rights between public grounds in said city, or where the the time when the original record was made same may be or may become calculated to up and the time of the supplemental record, frighten or injure or endanger horses or oththe introduction of the latter in evidence er animals, provided that this ordinance shall was proper. Brophy v. Hyatt, 10 Colo. 226, not be construed to interfere with or re15 Pac. 399; Horr & B. Mun. Ord. 88 58, 59, strain the selling or distributing of newsand authorities there cited; City of Solomon papers or periodicals, but such sales may v. Hughes, 24 Kan, 211; Barr v. Village of be carried on as now permitted and reguAuburn, 89 Ill. 361; Dill. Mun. Corp. (4th lated by law." Section 3 of the ordinance Ed.) § 297. For the reasons above stated, provides the penalty for the violation of the the judgment should be reversed. Reversed. same, which is a fine of not less than $3 nor

more than $100 for each offense.

visions of the city charter which, it is claim. 130 Colo. 552)

ed, give to the council power to pass this ordiWETTENGEL V. CITY OF DENVER, nance, are section 20, subd. 40, of the city char

ter, on page 85, Sess. Laws 1885, which, in (Supreme Court of Colorado. Feb. 8, 1895.) ORDINANCE-DISTRIBUTING HANDBILLS-POLICE

substance, gives the council power to prePower-EvideNCE-INSTRUCTIONS.

vent "any practice having a tendency to an1. An ordinance of a city prohibiting the noy persons passing on the streets or sidedistribution of such handbills on the streets walks, or to frighten teams or horses," and as those receiving them would naturally throw what is commonly known as the “General on the street, and which are calculated to frighten or endanger horses, is a valid exercise

Welfare Clause," which gives the city counof the police power given to a city by its char- cil power “to make all ordinances which it ter (Sess. Laws 1885, p. 87, § 20, subd. 40), may deem necessary or requisite for the good providing that the council may prevent any

order, health, good government, and general practice having a tendency to frighten horses, and the general welfare clause.

welfare of the city." 2. One who hands to another a handbill

J. Warner Mills, for plaintiff in error. F. which the latter will naturally throw into the street violates an ordinance prohibiting the dis

A. Williams and A. B. Seaman, for defendant tribution of handbills and circulars which the in error.

The pro

CAMPBELL, J. (after stating the facts). the distributing to travelers on the street of There are a number of errors assigned, the any circular or handbill, irrespective of its principal one of which is the invalidity of the character, it might be held unreasonable, ordinance. There are, however, two other and come within the principle announced in questions which will be considered, the de- the case of People v. Armstrong, 73 Mich. termination of which will work a reversal of 288, 41 N. W. 275. The section of the orthis judgment; but, inasmuch as there are a dinance held unconstitutional in that case is, number of cases pending in the court below in substance, as follows: "No person shall which depend upon the decision in this, we himself, or by another, circulate, distribute have concluded to determine the main point or give away circulars, handbills or adverinvolved, and pass upon the constitutionality tising cards of any description in or upon any of the ordinance.

of the public streets and alleys of said city." The evidence tends to show that on the As the court in that case said, “the offense is night of August 6, 1890, on Larimer street, made complete in itself by the mere act of in the city of Denver, between Eighteenth distributing or giving away these enumerated and Nineteenth streets, the defendant, with articles.” For that reason, among others, others, distributed to travelers on the street, the ordinance was declared invalid. In the whom he could induce to take the same, ordinance before this court such are not its 600 or 700 circulars or handbills, about 7 by provisions, but the prohibition applies only 10 inches in size, which gave the names of to the distributing of handbills or circulars the 6 o'clock and Sunday closing houses in of such a character or nature that the tray. Denver dealing in ready-made clothing and eler will naturally or probably throw the boots and shoes, and urged the public to same, immediately after so taking them, uppatronize them. At the same time the re- on or litter the street, or place the same ceivers of these circulars were requested not where they may be or may become calculated to drop them on the streets, and some of to frighten or injure or endanger horses. So those to whom such requests were made that, by the very terms of the ordinance, the complied therewith, but others dropped them offense is made to consist, not in the mere on the street. The circulators endeavored to act of distributing handbills or circulars, pick up such as were thrown away, but, not- but in the distributing of such handbills or withstanding this, some of these circulars circulars as will probably or naturally be were deposited on the street, and found there thrown away, and result in the littering of and on the sidewalks the following morning. the street or frightening of horses. In Fra

The validity of this ordinance is assailed zee's Case, 63 Mich. 396, 30 N. W. 72, comon the ground that it is unreasonable. It is monly known as the “Salvation Army Case,” contended that it is an “attempt to regulate it was held that an ordinance which proand restrain the conduct of the citizen in hibited all persons from parading or riding matters of mere indifference, without any in the streets of Grand Rapids with musical good end in view"; that it aims to prohibit instruments, etc., without having first obthe carrying on of a business which in gen- tained the consent of the mayor, was void, eral, and in itself, is lawful. The legisla- because it sought to "suppress what in gen. ture not having conferred upon the city the eral is perfectly lawful, and leaves the pow. express authority to pass au ordinance pro- er of permitting or restraining processions to hibiting the distributing of circulars on the an unregulated official discretion." These streets, the power, if it exist at all, must be cases can, we think, be distinguished in prinderived from the general welfare clause, and ciple from the one now before us. In the disthe power given to prevent "practices hav- tributing of circulars or handbills which are, ing a tendency to frighten teams or horses." in themselves, unobjectionable, or in the paThe reasonableness of this ordinance, there- rading of the streets with musical instrufore, is a matter for judicial determination, ments, there is nothing unlawful, and an No useful purpose would be subserved by absolute prohibition of the same might be following counsel for plaintiff in error in his beyond the power of the city council to endiscussion of the competitive wage system, force; but the safety of the people who use of the conflicting views of speculative phil. the streets and sidewalks does require some osophers on sociology, or of the rights of em- restraint upon indiscriminate distributing of ployers and employés, all of which is not handbills and circulars of such a nature as germane to the present discussion. The right have a tendency to frighten horses, or which of clerks to combine to secure, by all lawful will litter the streets. It is a matter of commeans, shorter hours or higher wages, is un- mon knowledge that nothing is more likely questioned, and needs no argument to sup- to frighten horses than pieces of paper car

Our hearty concurrence in all that is ried by the wind through the streets around said by counsel in this part of the argument and about the places where such horses may would not lead us to a decision of the prop- be. Any practice which naturally tends to ositions which are necessarily involved in the cause the littering of the street with loose determination of this case. We proceed at papers, which, flying about, will cause fright once to a discussion of the main point, viz. to horses, and so tend to the injury of the the validity of the ordinance:

public, is not a lawful practice, and the enIf the object of this ordinance is to prohibit forcement of this ordinance will discourage

Dort it.

and put a stop thereto. In another view of which were distributed came within the the case, this ordinance is reasonable. The prohibition of the ordinance, and in so doing throwing of loose handbills and circulars in- it usurped the province of the jury. For to the street is certainly reprehensible, and is these two errors committed by the court bea matter for police regulation. If one, there- low the judgment should be reversed, and the fore, hands to another a handbill which the cause remanded for a new trial. Reversed. latter naturally will at once throw into the street, the former is a party to the prohibited

(6 Colo. A. 513) act. The one who distributes the circular

SHAFER v. CHERRY. to the one who actually drops it in the

(Court of Appeals of Colorado. Feb. 11, 1895.) street, to the injury of the public, is just

STATUTE OF FRAUDS-PROMISE TO PAY Rent. as guilty as he who directly drops the pa

The fact that a person rents a house for per. Indirectly, he contributes to the wrong,

the use of another does not make his promise and should be held liable the same as if he to pay the rent an agreement to pay the debt of himself threw into the street the objectiona- another. ble article. The evident object of the ordi- Appeal from Arapahoe county court. nasce in question is to prevent the littering Action by James A. Cherry against George of the street and the frightening of horses. 0. Shafer for rent. Judgment was rendered It certainly tends to the accomplishment of for plaintiff, and defendant appeals. Af. one of the purposes for which the city was firmed. Incorporated, viz. the protection of its in

George J. Humbert, for appellant. Fred babitants from danger as they pass along its L. Shaw, for appellee. streets, engaged in their business. Such an object is certainly legitimate, and the means THOMSON, J. This suit was brought by employed are reasonable, and surrounded by Cherry against Shafer to recover the rent of sufficient safeguards. The ordinance is free a house belonging to Cherry, and occupied from the objections which seem to prevail | by Shafer's mother-in-law, Mrs. Straight. She with the supreme court of Michigan in the had occupied the house for five months precases cited. With the construction which vious to May 1, 1892, but had paid no rent, we have put upon the section under consid- and the furniture had been attached for the eration, "the actual operation of the ordi- rent due. The suit was settled, and the atnance in all cases which may be brought tachment released, upon the execution to the thereunder" cannot result in the injustice plaintiff of a note for $200, by defendant's which is urged as likely to follow its en- brother-in-law, guarantied to the amount forcement. We hold the ordinance valid, as of $150 by the defendant. Plaintiff then de& reasonable exercise of the police power of manded possession of the house, declining to the city, delegated to it by the legislature. lease it longer to Mrs. Straight. Plaintiff's

There are, however, errors apparent in the testimony was that he then, by an agreement record which compel a reversal of this case. between himself and the defendant, leased Over tbe objection of defendant's counsel, the premises at $40 per month, to the defendthe court orally instructed the jury. This is ant, until the latter could get his furniture and error. Lee v. Stahl, 9 Colo. 208, 11 Pac. 77; his mother-in-law removed out of the house Code, 1887, $ 187, subd. 6.

into one of his own houses; and that the Defendant had the right, so far as this or- premises were occupied under this arrangedinance is concerned, to distribute any cir- ment from May 17th until August 23d. Deculars that were not of the objectionable fendant paid one month's rent, and no more. character enumerated. The evidence, either Defendant testified that his agreement was 0? the plaintiff or defendant, should show one of guaranty, and embraced only one that the circulars or handbills distributed month's rent, which he paid. The court found by the defendant came within the enumera- the facts to be with the plaintiff, and rention of those whose distribution the ordi- dered judgment in his favor for the balance dance prohibited. Whether or not they were due. of such a character was a question of fact, It is contended that the agreement amountfor the jury, not a matter of law, for the ed to a promise by the defendant to answer court. The jury must determine the ques- for the default of another, and therefore, not tions of fact,---not only that the defendant being in writing, was within the statute of distributed circulars as charged in the com- frauds. The court evidently accepted the plaint, but also that these circulars were of plaintiff's version of the contract as the true the character specified as coming within the one, and it must therefore be so accepted provisions of the ordinance. In the charge here. The agreement to which he testified to the jury the court below eliminated the involved no promise to answer for the debt latter proposition, and, in effect, directed or default of another. It was an original the jury to find the defendant guilty if they contract between the plaintiff and the de. believed from the evidence that the defend- fendant. It is immaterial that the property ant, with others, merely distributed the cir- was rented for the use of Mrs. Straight. The culars or bandbills which were offered in defendant was the lessee, and he alone was evidence. It is apparent that the court, as a liable for the rent. The judgment will be matter of law, determined that the circulars atfirmed. Affirmed.

(5 Colo. A. 511)

a party to the proceeding in which the claim ROBERTS v. MORE.

was adjudicated. The estate took no ap(Court of Appeals of Colorado. Feb. 11, 1895.) peal, and was not before the district court. APPEAL-STRANGER TO JUDGMENT – JURISDICTION

The district court could acquire no juris. -EXCEPTIONS.

diction of the cause except upon appeal by 1. Where, on the petition of the husband of the party aggrieved by the judgment. There a decedent for the removal of the administrator

is no provision for an appeal by a stranger of her estate on the ground that he procured

to the record. his appointment by falsely representing himself

It follows that the appeal as one of her creditors, the court hears evidence was a nullity. The district court acquired as to the indebtedness, and allows the claim, no jurisdiction of the estate, or of the suband takes no further action on the petition, the husband is not a party to the judgment, and

ject-matter of the controversy, and all its cannot appeal.

proceedings in the case were void. It was 2. The ground of an appeal being that the unnecessary to preserve exceptions to the lower court had no jurisdiction of the action, it

rulings made by the district court or to its is unnecessary to preserve exceptions either to its rulings or judgment.

final judgment. The want of jurisdiction Error to district court, Lake county.

appears upon the face of the record, and the

objection was not waived by failure to save J. W. More, husband of M. A. More, de

exceptions. The judgment will be reversed, ceased, petitioned the county court for the

with direction to the court below to dismiss removal of J. C. Roberts as administrator

the appeal. Reversed. of his wife's estate, on the ground that he was not a creditor of her estate. After a hearing, the administrator's claim against

(5 Colo. A. 521) the estate was allowed. J. W. More appealed to the district court, which reversed

DEANE V. ROARING FORK ELECTRIC

LIGHT & POWER CO. the judgment of the county court, and J. C. Roberts brings error. Reversed.

(Court of Appeals of Colorado. Feb. 11,

1895.) A. J. Sterling and A. S. Blake, for plain

INJURIES TO EMPLOYE - DEFECTIVE APPLIANCEStiff in error. Geo. S. Phelps and N. Rollins,

KNOWLEDGE OF EMPLOYER-NOTICE TO AGENT. for defendant in error.

1. In an action by a servant against the

master for injuries received through the burstTHOMSON, J. J. W. More, as husband ing of a water valve, the evidence was that the of M. A. More, deceased, petitioned the

appearance of the valve did not indicate to one

without special knowledge that the valve was county court of Lake county for the removal

defective, and there was no evidence that de of J. C. Roberts, as administrator of her fendant possessed that special knowledge, nor estate, and the revocation of his letters of any evidence inconsistent with the supposition administration, for the reason that he had

that the valve had been properly tested before

defendant accepted it. Held, that the burden obtained his appointment as administrator by being on plaintiff to show that defendant knew, falsely representing that he was a creditor or by proper care might have known, that the of the estate, whereas he was not such cred

valve was unsafe, a nonsuit was proper.

2. Notice to an employé having charge of itor. The court thereupon ordered a hear

the wood work and the construction of a poiring upon the demand filed by Roberts

er house that a water valve in such house is deagainst the estate, appointing George S. fective is not such notice to the power company Phelps to represent it and manage its de

as will render it liable for an injury sustained

iby an employé through a defect in the valve. fense, and upon the hearing found that the estate was indebted to the administrator in

Appeal from district court, Pitkin county. the sum of $101.88, and allowed his claim

Action by L. S. Deane against the Roaring for that amount. No action was taken upon

Fork Electric Light & Power Company. the petition for removal. From the judg- Judgment for defendant, and plaintit apment of allowance More prayed an appeal peals. Affirmed. to the district court, which was allowed up- Richard B. Shepard, H. O. Shepard, A. N. on the filing of an appeal bond in the sum Cherry, and Wm. O'Brien, for appellant. and within the time fixed by the court. Downing, Stimson & McNair and Thomas M. More filed his bond accordingly, and after. | Patterson, for appellee. wards, by leave of court, filed an amended bond. Roberts moved the court to dismiss THOMSON, J. This is an action for perthe appeal on the ground that it was un- sonal injuries. The complaint charges that authorized by law. The court denied the the plaintiff, Deane, was employed by the motion, and proceeded to an adjudication of defendant, the Roaring Fork Electric Light the demand of Roberts against the estate, & Power Company, to work at and near its rendering judgment against him upon the machinery, pipes, and valves, etc., through claim, and in favor of More for costs, from which the water of the company was transwhich judgment Roberts has prosecuted er- mitted; that the plaintiff, in the usual course ror to this court. We cannot conceive upon of his employment, was engaged by the di. what theory this appeal was entertained. rection of the defendant in trying the works The judgment of the county court to ascertain whether the joints and connecagainst the estate. Roberts was plaintiff, tions were sufficient, and was working at or and the estate defendant. More was not near the hydraulic valve which was part of

was

the machinery; that this valve was guaran- strong enough, but said that its insufficiency tied by the defendant to the plaintiff to be could be seen by a man who was familiar capable of a cold-water pressure of 500 with making valves and seeing valves made. pounds to the square inch; that the valve He further stated that such a valve might was unsafe, defective, and insufficient, as withstand a proper test, and upon a subsethe defendant at the time knew or ought to quent test, or upon actual use, its insuffihave known; that the defects in the valve ciency might become apparent for the first were hidden from view, so that the plaintiff time. did not and could not know its unsafe con- The question of contributory negligence is dition, but relied wholly upon its external not in the case. The only question which appearance and the guaranty of the defend- we are called upon to determine is whether ant; that while plaintiff was working near there was sufficient evidence of negligence the valve, and while it was sustaining a on the part of the defendant to demand the pressure of only 326 pounds to the square submission of the case to the jury. The inch, it burst with great violence, causing duty which a master owes to his servant resevere and permanent injury to the plain- quires the exercise by him of reasonable tiff; that the defendant was negligent in care and caution in the selection of maproviding and using, and suffering to be chinery and appliances to be used in carryused, the unsafe and imperfect valve; and ing on the business in which the servant is that the injuries suffered by the plaintiff employed. The amount of care required dewere the result of its negligence. The an- pends in a considerable degree upon the swer denies negligence and the insufficiency character of the machinery selected, and the of the valve; avers care in its selection, a danger attendant upon its use; and if, want of knowledge or the ability to obtain through the master's failure in the exercise knowledge that it was defective, and con- of such precautions as the circumstances of tributory negligence on the part of the plain- the particular case demand, unsafe machin. tiff. When the evidence in behalf of plain- | ery is procured, and, as a consequence, the tiff was introduced, a motion for a nonsuit serrant, without fault of his own, suffers inwas made and allowed. The following is all jury, the master is liable. In an action for the evidence bearing upon the solitary ques- the injury the burden is upon the servant tion in the case: The plaintiff was a car- to establish such negligence of the master as penter, contractor, and builder. Prior to the would authorize a recovery. Negligence is accident, he had been working for the com- not presumed. On the contrary, the prepany about five months. He was first em- sumption is that the master exercised the ployed to construct its dam, and afterwards care which the circumstances required, and he took a contract to make window frames did whatever was reasonably necessary to for its power house. At the time of the ac- secure the safety of the servant. It is not cident, he was assisting in making a test of sufficient to prove that the injury resulted the valve, by order of Mr. William G. Cof- from defective or insufficient machinery; it fin, who had charge of the construction of must also appear that the master knew, or the pipe line, and was the company's super- by the exercise of proper care might have intendent and hydraulic engineer. Joseph known, that the machinery, by reason of its Mueller, who was operating a foundry in construction or its condition, was unsafe. Aspen, and had experience in the manu- In an action by the servant for a resulting facture of valves, saw the valve in question injury, the master goes into the trial with after it was put in place, and stated, in the the advantage of tbis presumption in his hearing of the plaintiff, that the iron in the favor; and, unless evidence is introduced valve was too light. The plaintiff reported which has a tendency to overthrow it, there what Mueller had said to Mr. Doolittle, who is nothing for the jury to pass upon. The was superintendent of the construction of foregoing is a statement of some general and the woodwork, and under whose direction well-established principles. Wells v. Coe, the plaintiff worked upon the power house. 9 Colo. 159, 11 Pac. 50; Murray v. Railroad Mr. Doolittle replied that the valve had been Co., 11 Colo. 124, 17 Pac. 484; Wood, Mast. made specially for that work, had been test- & Serv. $ 382. ed to 500 pounds, and would stand that It remains to us to apply these principles pressure with safety. Mr. Mueller, on the to the evidence before us. The injury to witness stand, stated that, in his judgment, the plaintiff was occasioned by the bursting the valve was not sufficient for the pressure of the valve, and the evidence tends to prove it was designed to stand. He also stated that the reason why it burst was that the that no flaw or defect in the workmanship iron of which it was cast was not sufficientof the valve could be seen; that, so far as ly thick to withstand the pressure which visible signs were concerned, it was a per- was applied to it. The only negligence fect piece of work; that, to a person who charged, or endeavored to be shown, consisthad no special technical knowledge upon the ed in the providing and attempted use by the subject, there was nothing in the appear- defendant of a valve which was not equal ance of the valve to cause any alarm or un- to the work which was to be exacted of it: easiness. He made no calculation for the and, if the defendant is liable in this action, purpose of determining whether it was it is either because it had actual knowledge

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