Civ. Code, § 27. This application was the first pleading he had filed, and was heard before the hearing of motion for alimony, which was submitted wholly on affidavits. Held that, under all the circumstances, defendant could not be held to have waived his right to a change of venue.

3. Defendant in divorce was denied a change of venue to which he was entitled as a matter of right under Civ. Code, § 27. Held that, though the erroneous action of the court in denying the application was reviewable on appeal, nevertheless, owing to the nature of the action and the fact that any further proceedings would be entirely beyond the court's jurisdiction, defendant was entitled to a writ of prohibition restraining further proceedings.

4. Defendant was further entitled to have an order for temporary alimony set aside.

Original application for prohibition by the people, on relation of Robert L. Lackey, against the district court of the Second judicial district. Writ issued.

Calvin E. Reed and Fred. A. Sabin, for petitioner. Guy Le Roy Stevick, for respondent.

GABBERT, J. The wife of relator filed her petition for divorce in the district court of Arapahoe county. He moved to transfer the cause to the district court of Otero county upon the ground that this was the county of his residence. The motion was denied, and proceedings in prohibition in his behalf were then instituted in this court. The questions we are required to determine are: (1) Does the provision of the Code providing that civil actions in certain circumstances shall be tried in the county of the residence of the defendant apply in divorce proceedings? (2) Did the defendant waive his right to have the case transferred? (3) If the motion for a change should have been sustained, should the writ of prohibition issue? These several questions will be considered in the order named, and in discussing them the material facts bearing upon each will be stated.

1. Plaintiff based her right to a divorce upon the ground of extreme cruelty, and alleged that she was a resident of the county of Arapahoe. The summons and complaint were served upon the defendant in Otero county. The petition was filed January 29, 1902, and February 5th following defendant filed his motion for a change of the place of trial, alleging that he was a resident of Otero county. The fact of his residence, or the place where the summons and complaint were served, are not controverted.

Section 6

of the divorce act (Laws 1893, p. 236) provides that suits for divorce shall only be brought in the county in which the plaintiff or defendant resides, or where the defendant last resided. Section 2 of the act provides that like practice and proceedings shall be had in divorce cases as are had in other civil cases, and in accordance with the requirements of the Civil Code, except as expressly modified or provided in the act. This provision clearly contemplates that all the provisions of the Code which are applicable

shall control, in the trial and disposition of divorce cases, except as otherwise provided in the divorce act itself, either expressly or by necessary implication. Eickhoff v. Eickhoff, 27 Colo. 380, 61 Pac. 225. Civ. Code, § 27, provides that all civil actions except those depending upon the situs of the subject-matter of controversy, or where the cause or some part thereof arose, shall be tried in the county in which defendant may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county, subject to the power of the court to change the place of trial for certain specified reasons. No territorial limit is fixed by the constitution defining the jurisdiction of the district court, and the Civil Code has seemingly recognized that actions were so far transitory in their nature that they might be brought in any court having jurisdiction of the subject-matter and the character of the action commenced. Fletcher v. Stowell, 17 Colo. 94, 28 Pac. 326; Board of Com'rs of Gunnison Co. v. Saguache Co. Com'rs, 2 Colo. App. 412, 31 Pac. 183; Wasson v. Hoffman, 4 Colo. App. 491, 36 Pac. 445; Railroad Co. v. Cahill, 8 Colo. App. 158, 45 Pac. 285; Forbes v. Board, 23 Colo. 344, 47 Pac. 388. The legislature, however, by the provision under consideration, intended to limit this right, and imposed a limitation as to the forum in which the action should be commenced. Warner v. Warner, 100 Cal. 11, 34 Pac. 523. Whatever reasons might be advanced for this limitation are wholly immaterial, for, independent of these considerations, the legislature undoubtedly had the power to change the usual rule in civil actions, and provide that only certain forums determined by the residence of the parties should take jurisdiction of divorce proceedings by their commencement. This, however, does not change the Code provisions with respect to the place of trial, but, on the contrary, in view of the fact that the divorce act provides the Civil Code shall apply except as expressly modified by its own provisions, the mandate of the act with respect to where actions for divorce shall be brought must be read in connection with those code provisions. Warner v. Warner, supra; Evans v. Evans, 105 Ind. 204, 5 N. E. 24, 768; Powell v. Powell, 104 Ind. 18, 3 N. E. 639. Any other construction would inject into the act a limitation as to the place of trial wholly unwarranted by any express or implied provisions. In fact, if it were held that a defendant in a divorce action is not entitled to the right to have the case tried in the county of his residence when the conditions mentioned in section 27 of the Code exist, it would be equally as logical to hold that the other provisions of the Code relative to a change of venue for the convenience of witnesses, or the prejudice of the judge, were not applicable. In the California case above cited the court had under consideration a provision of the Civil

Code which directed: "A divorce must not be granted unless the plaintiff has been a resident of the state for one year, and of the county in which the action is brought three months next preceding the commencement of the action." Civ. Code, § 128. While the language employed is different from the provisions of our divorce act as to where an action of this character must be commenced, it is equally as mandatory on this subject, because a party could not commence an action in any county except the one of his residence. Notwithstanding this provision, the court held that it must be read in connection with the section of the Code providing for the place of trial of civil actions, and said: "The former is a limitation as to the place for the commencement of actions of divorce; the latter provide for the place of trial." Walton v. Walton, 96 Tenn. 25, 33 S. W. 561, cited by counsel for respondent, is not applicable. The court in that case had under consideration the law on the subject of divorce which provided: "The bill may be filed in the proper person and name of the complainant in the circuit or chancery court of the county or district where the parties resided at the time of their separation, or in which the defendant resides or is found, if a resident, but if a non-resident or convict, then in the county where the applicant resides." It appeared from the facts that the defendant was a resident of the state, not a convict; and, not being found in any other county, it was held that the bill should have been filed either in the county in which the defendant resided, or in which the parties resided at the time of the separation, and, as this was not done, the court in which it was filed had no jurisdiction of the case. This is in harmony with our own views that the designation of the county in which actions for divorce shall be brought, as determined by the residence of the parties, is a jurisdictional limitation as to the courts in which such actions shall be commenced. In the early Indiana cases cited by counsel for respondent, and especially Musselman v. Musselman, 44 Ind. 106, it was held that a suit for a divorce was not a civil action, within the meaning of the code provisions relating to a change of venue in civil cases. That case, however, has been expressly disapproved and overruled in Evans V. Evans, supra, where, notwithstanding the previous holding in the Musselman Case, it was held that a divorce proceeding has all the requisites of a civil action, as defined by the Civil Code, in the sense that the provisions of the latter are applicable and controlling, except as modified by the divorce act. True, in that case the application for a change of venue was based upon the ground that the appellant could not have a fair and impartial trial in the county in which the suit was commenced; but, if the code provisions on the subject of a change for this ground are applicable, it would logically follow that other provisions on the

subject should also control. Pfueller v. Superior Court, 44 Pac. 123, a case decided by the supreme court of Washington, appears to support the contention of counsel for respondent, but the decision rendered was by a divided court. Whether or not the conclusion announced is sound depends upon a construction of the statutes of that state, and could only be regarded an authority in so far as the statutory provisions construed are similar to our own, or of a character which would uphold the claim that the requirement of the divorce act as to where the suit shall be commenced impliedly deprives the defendant of the right to have the cause tried in the county of his residence. However this may be as to the divorce act of Washington, the statutes of this state are not susceptible of that construction.

2. At the time the action was commenced, plaintiff also filed a motion for temporary alimony, and caused a notice to be served on the defendant that this application would be heard on February 5th. On the day preceding, the defendant entered a general appearance by counsel, and at his request the application was continued until February 8th. The right of a defendant to a change of place of trial upon the ground of residence is a personal privilege which may be waived by not applying in apt time. The court had full and complete jurisdiction of the defendant by virtue of the service of the summons and notice of application for temporary alimony, and his appearance before moving for a change of place of trial was in no sense a submission to the jurisdiction of the court, because it already had jurisdiction, and is only material in so far as it may be construed to indicate an intention to waive the privilege which he afterwards sought to assert. Smith v. Publishing Co. (Colo. App.) 68 Pac. 119. The right of a defendant to a change of place of trial upon the ground of residence is one which, when the showing is in compliance with the Code, the court to which it is addressed must grant without discretion, unless, as suggested, it has been waived. Smith v. People, 2 Colo. App. 99, 29 Pac. 924; Pearse v. Bordeleau, 3 Colo. App. 351, 33 Fac. 140. What is considered apt time must be determined by the circumstances of each particular case in which the question arises. While it is true the relator in this instance entered a general appearance the day preceding the application to change was filed, and that at his request the hearing on the motion for temporary alimony was postponed, the plaintiff was in no manner prejudiced. Prompt notice of the intention to apply for the change appears to have been given her counsel. This application was the first pleading filed in his behalf. It was heard, at the instance of relator, before the motion for alimony was considered; and the latter was submitted to the court entirely upon affidavits; so that, in this instance, the plaintiff incurred no expense by the action

of the defendant in not filing his motion for a change at the time his counsel entered an appearance for him, and in the circumstances of this case the application for the change was made in apt time.

3. Where an application for a change of place of trial is made by a defendant, based upon a ground which entitles him to the change as a matter of right, the court to which it is addressed has no discretion except to grant the application. In such cases the court is ousted of jurisdiction to proceed further with the cause than to enter the order of removal. Pearse v. Bordeleau, supra. It follows, from what has already been said in discussing the two preceding questions, that the respondent court is devested of jurisdiction to hear and determine this cause; and this brings us to the last question to consider, the determination of which depends upon whether the relator should be remitted to his remedy by appeal or writ of error. The writ of prohibition is not one of right, but whether or not it shall be granted rests in the sound discretion of this court. It is a power conferred by the constitution, by means of which, when necessary, supervisory control may be exercised over inferior tribunals acting without or in excess of their jurisdiction. Although the questions involved upon which the writ is asked may be reviewed on appeal or error, this is not conclusive against the right as to the writ if, in the judgment of the court, such remedies are not plain, speedy, and adequate. People v. District Court of Lake Co., 26 Colo. 386, 58 Pac. 604; McInerney v. City of Denver, 17 Colo. 302, 29 Pac. 516; People v. District Court of Second Judicial Dist. (Colo. Sup.) 66 Pac. 1068. If the respondent court is permitted to proceed with the trial of this cause, the relator, if he wishes to present his defense, must be at the expense of traveling from the county of his residence to a distant one, as well as defraying expenses of witnesses on his behalf as well as that of the plaintiff, and in the end, if the judgment should be adverse, would be entitled to have it reversed solely upon the one question of the error of the court in refusing a change of place of trial to the county of his residence. Whether or not the judgment against him on the merits might be correct would be immaterial, for, even if it was, it could not stand. It is manifest, therefore, in the circumstances of this case, that the relator has no plain, speedy, and adequate remedy at law to correct the errors already committed, and which the trial court will further commit by proceeding to try the questions involved in the divorce proceedings on the merits. Further than this, and a very strong reason why the writ should issue, is that the suit is one for a divorce, in which the judgment rendered may affect the marital relations between the parties, or those they may assume in the future. In reaching the conclusion that the writ should issue, we have not overlooked the proposition, advanced by counsel for respondent,

that the district court had jurisdiction to determine the motion for a change, and that in overruling this motion, if this is error, it has merely committed one in the exercise of the jurisdiction conferred upon it by law. If this were the only question involved in this proceeding, the proposition would be unanswerable, but the case does not call for, or admit of, the application of the principle, frequently announced, that proceedings in prohibition cannot supersede the ordinary functions of an appeal or writ of error. It is essentially different from those cases where we have applied this doctrine. The district court now proposes to proceed with the trial of a case of which it has no further jurisdiction, and it is to restrain this action that these proceedings were instituted. In other words, while the court originally had jurisdiction of the subject-matter of the action, the parties, and the questions involved in the motion for a change of venue, by denying this motion it assumes an authority and jurisdiction to try the case upon its merits which it does not possess. The difference between cases where we have held that errors complained of would not be reviewed in prohibition because reviewable on error or appeal, and those in which the proposition is not applicable, is clearly pointed out in People v. District Court of Eighth Judicial Dist. (Colo. Sup.) 63 Pac. 321. It would seem idle to require or permit the parties to try their cause in a forum without jurisdiction. For the protection of the plaintiff, as well as the defendant, the cause should be heard by a court the authority of which cannot be successfully attacked. Ordinarily, prohibition only lies to prevent the lower court from proceeding further with the cause, but, where this would not give the relator the relief to which he is entitled, it may direct that all proceedings had in excess of jurisdiction be quashed, and the order entered which should have been. People v. District Court of Lake Co., 23 Colo. 466, 48 Pac. 500; People v. District Court of Eighth Judicial Dist., supra. The writ will issue, directing the respondent court to proceed no further with the cause than to set aside the judgment for temporary alimony and suit money, and enter an order transferring the cause to the district court of Otero county.

Writ issued.

(29 Colo. 511)

UNION GOLD MIN. CO. v. CRAWFORD. (Supreme Court of Colorado. May 5, 1902.) INJURY TO SERVANT-NEGLIGENCE OF MASTER-MINES-CONSTRUCTION OF ORE TRAMWAYS PROXIMATE CAUSE COMPLAINT — TRIAL INSTRUCTIONS.

1. Defendant company, in an action for injuries to a servant caused by the negligence of a person in its mine, cannot require plaintiff to make the complaint more specific by stating whether such person was an employé of defendant, as it has knowledge of such fact.

2. The failure of a complaint, for negligent injuries to a servant, to state whether the person causing the injury was in defendant's em

ploy, will be regarded on appeal as immaterial, when the evidence shows that such person was in the employ of defendant's lessee.

3. The inclusion in instructions of certain allegations of the complaint is not erroneous if the issues raised are correctly stated.

4. An instruction, in a personal injury case, that the verdict must be for plaintiff if his injuries were occasioned by defendant's negligence, is not erroneous in using the word "occasioned" instead of "caused."

5. An instruction that, in estimating damages, the jury should consider the nature of the injuries suffered. as to whether they are "likely" to prove permanent, or temporary only, is not erroneous in using the word "likely,' as authorizing conjecture in determining the nature of the injuries.

6. A servant of a mining company, working at the bottom of a shaft which is operated by the company to hoist ore from the various levels of the mine for lessees of the levels, and an employé of a lessee allowing ore to fall and injure the former, are not fellow servants.

7. Where a level in a mine is in the same negligent condition when leased by the owner as at the time of a subsequent injury of an employé of the owner, in a shaft operated by him, resulting from such condition, the owner is responsible therefor.

8. The construction, in an upper level of a mine, of an ore tramway on such a grade that cars started thereon, or starting by gravity, will run into the shaft by their own momentum, without providing sufficient barriers to prevent their falling down the shaft, is negligence.

9. A mine owner leased a level having an ore tramway running to a shaft, constructed so that a car would run into the shaft, which was operated by the owner for the benefit of the lessees; and an employé of the lessee, without being guilty of negligence, allowed a car to run into the shaft and injure an employé of the owner. Held, that the negligent construction of the tramway without barriers was the proximate cause of the injury.

10. Where the evidence in a personal injury case shows that defendant's injuries compelled the amputation of a foot, and that he lost the use of a finger, and had his skull fractured, and was unable to work, a verdict for $15,000 is not excessive.

Appeal from district court, Lake county. Action by William D. Crawford against the Union Gold Mining Company. From a judgment for plaintiff, the defendant appeals. Affirmed.

Wolcott, Vaile & Waterman (W. W. Field, of counsel), for appellant. John K. Vanatta, for appellee.

STEELE, J. The injuries to the appellee occurred on the 18th of September, 1898, while he was working at the bottom of the shaft of the Orpha May mine, the property of the appellant. The appellee is a miner, and was employed by the appellant. A car loaded with ore, in charge of an employé of a lessee of the fourth level of the mine, fell from the fourth level to the bottom of the , shaft, a distance of about 700 feet. A heavy canopy had been built, over the place where they were working, for the protection of the miners. The momentum of the falling car and ore was so great that the canopy was broken, two of the miners were killed, and the appellee was seriously injured. In the complaint the injuries sustained by the apbellee are described as follows: "That at

the time the car fell into the bottom of said shaft, as aforesaid, it struck the plaintiff so as that his right leg was crushed in such manner as that it was necessary to amputate the same; that the plaintiff's left hand was injured so as that two of the fingers on said hand were, and are, rendered useless to this plaintiff; and he was injured in and about the head in such a manner as that his skull was fractured."

The levels of the mine were worked by lessees under separate leases. The company was engaged at the time in question in sinking the shaft. By an agreement with the lessees, the company was to take the ore at the mouth of the level and hoist it to the surface, and to do this the levels were so arranged that the ore cars could run into the hoisting cage. The entrance to level No. 4 was protected by an iron chain, one end of which was fastened to the timbers of one side of the level; a hook was fastened to the other side, and so arranged that a link of the chain could be thrown over the hook, thus closing the entrance. The purpose of this chain barrier, say counsel in their brief, was to protect the men from carelessly or inadvertently stepping into the shaft as they were working in the level near it.

Henry Funk, an employé of the lessee of the fourth level in question, was engaged in tramming ore from a stope in the level to the shaft. Funk testified: "I was tramming there at the time this accident happened. I had filled the car, and was standing between the car and a pile of ore, and was shoveling up around the plat preparatory to filling the next car, and when I turned to take the car away it was already gone. I started after the car, but my candle went out, and I followed on the best I could, and in a few seconds the car struck at the shaft. * * The car was supposed to be a two thousand pound car, and it was full. The car started of its own accord; it was gone before I was aware of it. When it started it was a hundred or a hundred and fifty feet from the shaft. Nobody told me the grade of this track. I could perceive there was a grade there by going over it; I knew it was there."

The witness Leffingwell, a civil and mining engineer, testified that he had made measurements in the level after the accident. He said: "The level falls toward the shaft to the amount of two feet and one-half in its length, which is one hundred and twelve and a half feet from the shaft. From a point five feet from the face to a point twenty-five feet from the face, a distance of twenty feet, the track falls nine inches in elevation; that is, there is a fall of nine inches in twenty feet. A loaded car will not start of its own accord on a grade which is only six or eight inches to a hundred feet; it would gradually decrease in speed and stop.❞

Herbert Starkweather, a witness for the defendant, testified: "I was employed by the

Union Gold Mining Company as superintendent of the Orpha May mine and other properties. Clements took possession of a portion of the level a short time before the accident. The company operated it during the month of February and, I think, before that time. There had been no change in the condition during the time I was in charge of it. I took charge of the property the 1st of February. There were no changes made by him in the level [the lessee, Clements, in the 4th level]. He was working above that level; he had nothing to do below. He took the ore out through the level, and the level was in the same condition, as far as I know, when it was leased to him by the company. After the accident I took a man down to the fourth level of the Orpha May mine. I wished to ascertain how the car got away from the man. I took the car down and had him load the car, and ran it both ways several times over the track. It was with some difficulty we started the loaded car at the immediate point where we loaded it, but after it was started it ran readily down there to the mouth, but there was no trouble at all for a man to control the running of the car. The track was not straight; it followed the vein, and there were short crooks and curves in the track. I did not block the car, because I wanted to see if it would start or not with the jarring of the car. I never learned of any difficulty in operating loaded cars upon this track. There was quite a raise, as the surveyor testifies, at this one point, and beyond that it was level or nearly so, possibly a slight decline, for a long distance. The level is not constructed at any excessive grade. This one particular point the grade, as the surveyor testifies, was steep er than at any other point. Q. Was steeper than you find in a great many places? A. Steeper than usual, but there was no difficulty to a man running a car over it with any ordinary precaution. We started a loaded car and an empty one. The empty car would not go to the shaft, but the loaded car did. It did not run very fast, but it ran enough to go over the grade into the shaft if we had allowed it; we stopped it before it got to the shaft. The loaded car ran about as fast as a man would ordinarily walk."

During the course of the trial testimony was received over the objection of the defendant, and exceptions were saved, but we regard the errors, if any, as unimportant and not prejudicial, and they will not be considered.

A motion was interposed by the defendant to have the complaint made more specific. The motion was granted in part, and the defendant alleges error in the court in not requiring the complaint to be made specific in every particular designated by the defendant. By this motion, the defendant sought to have the plaintiff allege whether the person who had charge of the car in the fourth

level was a servant or employé of the defendant. It was not error to deny this motion; the defendant knew whether Funk was an agent or employé of the defendant, and we think it is not material in this case, inasmuch as it was shown upon the trial that the person in charge of the car was an employé of a lessee of the fourth level.

The trial resulted in a verdict for the plaintiff in the sum of $15,000. The defendant appealed to this court. The principal errors alleged and discussed are the refusal of the court to give certain instructions offered by the defendant, and the giving of certain instructions over the objection of the defendant. Request No. 1 is an instruction concerning the preponderance of the evidence, and was fairly covered by instruction No. 8 given. Request No. 2 contains a definition of negligence. The court, in another instruction, gave a definition of negligence approved by leading authorities. Request No. 4 is in reference to an intervening cause, and, we think, is not applicable to this case. Requests Nos. 7 and 8 were given in substance in instruction No. 9. Request No. 11 directs the jury to disregard the testimony of the witness Leffingwell because it was stricken. The testimony was not stricken. Requests Nos. 11 and 12 charge that the defendant was not guilty of negligence, and were properly refused. Request No. 14 states that the company is not responsible for the negligence of Funk. the person who had charge of the car; and this, in substance, was given by the court. Request No. 15 was to the effect that the defendant did not construct the track in the level, and that it knew nothing of its condition at the time plaintiff was injured. This instruction was properly refused. No. 16 is an instruction, in effect, that the defendant is not guilty of negligence, and was properly refused. No. 17 was a request for the jury to return a verdict for the defendant; and this was properly refused.

In instruction No. 1 given, the court read to the jury certain allegations of the complaint and answer concerning the disaster, and the defendant objected to the court's thus reading from the pleadings, but we think the court correctly stated the issues raised, and that no error was thus committed. If the case was to be submitted to the jury, instruction No. 2 was properly given. It is objected that the court in instruction No. 2 failed to carefully explain the meaning of the word "proximate," but we think the jury was not misled by the giving of this instruction.

In instruction No. 4 the court gave to the jury a definition of negligence. Counsel ob-. ject that this is an incorrect definition of neg ligence, and was improperly given. This is the definition of negligence adopted by Judge Cooley, and is quoted with approval by textwriters; and, while it may not be in every particular absolutely correct, we are not disposed to question it, and do not think the court erred in giving it.