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ties of any county in this state, are hereby declared to be public highways." Gen. Stats., sec. 2953; Mills' Stats., sec. 3928.

As we have seen, up to the time of the commencement of this action, the road in question had not been "established in pursuance of any law of this state or territory;" nor had the same been "dedicated to public use" by any common law dedication express or implied. Thus, the former clauses of the section have already been considered. The latter clause, "Such other roads as are now recognized and maintained by the corporate authorities of any county in this state, are hereby declared to be public highways," is not to be understood in the absolute, unqualified sense contended for by counsel. Certainly, it cannot be held that every road which at the date of the passage of the act was recognized and maintained by the public authorities in any manner, as by user or the making of slight repairs,-became, by force of the statute, eo instanti, a public highway, irrespective of any statutory or common law dedication and without reference to the period of user, or the duration or extent of such recognition or maintenance. Private property is not thus subject to unrestricted legislative disposal.

It would seem to be unnecessary in this opinion to give the foregoing section a definite construction, since by the numerous changes made in the location of the road in question, it cannot be said that the line of the road, at the time of the trial below, was the same as at the date of the passage of the act of 1883.

Our conclusion is that the evidence under the law effectually disproves the claim asserted in behalf of the public, that the road through the land of the defendant Starr, as described in the complaint, was, at the date of the commencement of this action, a public highway.

The judgment of the district court must be reversed.



1. DAMAGES UNDER REMEDIAL STATUTES.-Sections 1509 and 1510, Mills' Ann. Stats., are remedial, and only compensatory damages are authorized thereby.

2. STATUTORY REMEDY FOR CAUSING DEATH OF HUSBAND OR WIFE.Section 1508, Mills' Ann. Stats., gives the surviving wife or husband a preferred right to sue during the first year; but he or she is not forbidden to maintain an action at any time before the expiration of the second year, provided there be no heirs, or provided the heirs, if any, have not instituted judicial proceedings.

3. BONA FIDE EFFORT TO COMPLY WITH STATUTE.-But if the statute were construed otherwise, and the survivor's action were acquired to be brought during the first year, a bona fide effort by suit within that period, though through an excusable mistake against the wrong party and ineffectual, would be sufficient.

4. OMISSIONS IN COMPLAINT SUPPLIED BY ADMISSIONS OF ANSWER.— Admissions made in the statement of a separate affirmative defense are not to be taken as facts upon a controverted question otherwise at issue in the pleadings by appropriate allegation and denial. But where matters that should have appeared in the complaint are sufficiently stated in a separate answer and are nowhere controverted in the pleadings; quære, should not the rule of express aider be applied?

5. INQUIRY FOR INTERMEDIATE CAUSE OF INJURY.-Where a sufficient and independent cause operates between the wrong and injury, resort should be had by the sufferer to the originator of such intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect and proximate to it. The inquiry, therefore, always is whether there was any intermediate cause disconnected from the primary fault and self-operating which produced the injury.

6. PROXIMATE CAUSE OF INJURY A QUESTION OF FACT.-What is the proximate cause of an injury, whether it be the original negligence of one party or the intermediate negligence of another party, is ordinarily a question of fact for the jury to be determined from the minor associated facts and circumstances.

7. COMPENSATORY DAMAGES DEFINED.-Compensatory damages for negligence causing death, are the estimated accumulations of the deceased during the probable remainder of his life, if he had not come to an accidental death, having reference to his age, occupation, habits, bodily health and ability.

8. INSTRUCTIONS FOR COMPUTING.-It is not necessary for the trial court to specifically enumerate in its charge each and every aggraVOL. XVII.-30

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vating or mitigating circumstance to be considered in computing compensatory damages.

9. RIGHT OF Courts to give Amended oR ADDITIONAL INSTRUCTIONS. -Trial courts possess a large discretion in recalling juries and submitting amended or additional legal propositions by way of instructions. Unless it fairly appears that some legal right of the party complaining has under proper objection been invaded, and that the invasion may have resulted in injury, such action will not constitute ground for reversal.

Appeal from District Court of Arapahoe County.

APPELLANTS, Hayes & McGilvray, being contractors and builders, were engaged in performing certain work upon a building fronting on Lawrence street in the city of Denver.

In connection with this work they erected a derrick which was held in position by means of “ head" or "back" ropes attached to the building and a guy rope extending through the derrick and across the street in different directions, the ends being fastened to posts on the opposite side. The work of Hayes & McGilvray being temporarily suspended, this derrick was borrowed from them by another contractor, Anderson, for the purpose of putting in place some lintels upon the same building. In using the derrick Anderson did not detach the guy rope from the posts to which it was fastened across the street, nor was it otherwise changed except slightly in direction from time to time by loosening the back ropes as the derrick was moved one way or the other along the front of the building. Anderson completed the work in about four hours during one forenoon and replaced the derrick in the precise position, as nearly as possible, it occupied when he borrowed it, tightening the guy rope and leaving it as he found it.

Four days subsequent to the return of the derrick by Anderson, the projecting hood of a dairy wagon occupied and driven by Thomas S. Williams, the husband of plaintiff, came in contact with one end of the guy rope and was violently thrown to the ground, receiving fatal injuries. Plaintiff first brought suit against Anderson to recover damages on account of the

alleged negligence causing the death of her husband; but upon trial of the cause verdict and judgment were given in favor of defendant. About nineteen months after the date of the accident, but within less than thirty days subsequent to the entry of judgment in the Anderson case, plaintiff instituted the present suit against Hayes & McGilvray, basing the same on their alleged negligence in connection with the guy rope. Issues were duly made by the answer and replication, and a trial took place resulting in verdict and judgment in favor of plaintiff for the sum of $4,500. To reverse that judgment the present appeal was taken.

Messrs. ROGERS, SHAFFROTH & WHITFORD, for appellants.


MR. JUSTICE HELM delivered the opinion of the court.

Five distinct grounds are urged in support of a reversal of the judgment below. The questions thus raised will be considered in the order of their presentation by appellants' brief.

The first and most serious objection urged is that since plaintiff failed to institute the present action within one year after the death of her husband, she was precluded from so doing by the terms of the statute. The specific clause relied on follows a provision authorizing the surviving husband or wife to sue, and reads: "If there be no husband or wife, or he or she fails to sue within one year after such death then (suit may be brought) by the heir or heirs of the deceased." Mills' Ann. Stats., sec. 1508.

The statutory provisions under which this action was brought (Mills, secs. 1509, 1510) are remedial, not penal.

They are enacted for the purpose of preserving to the surviving relatives designated in section 1508, supra, a right of action that would else have failed by the decease of the party

injured. They are in aid of the common law, not in derogation thereof. That the recovery authorized is purely compensatory, appears too plainly from the language employed in said section 1509 to admit of doubt. The jury are thereby limited to a fair and just compensation with reference to the necessary injury, and the phrase "mitigating or aggravating circumstances" is confined to those circumstances which increase or diminish this compensation. Moffatt v. Tenney, 17 Colo 189. These provisions should unquestionably receive a liberal construction. In support of the foregoing proposition, see Haggerty v. Central R. R. Co., 31 N. J. Law, 349; Lamphear v. Buckingham, 33 Conn. 237; Burns v. Grand Rapids & I. R. R. Co., 113 Ind. 169; Cooley, Const. Lim. (5th. ed.) 715. Giving a like construction to what is known as the Lord Campbell's Act, which may be regarded as the parent of sections 1509 and 1510, supra, and of all similar American statutes, see Cooley on Torts p. 254.

We do not say that punitive damages can never be recovered in actions of this kind. Section 1512, Mills' Ann. Statutes, a recent enactment, may be broad enough to warrant such recovery. But these damages can only be obtained upon proper averment and proof under this statute. And, even if it were applicable, nothing appears in the present case tending to show an effort on the part of plaintiff to avail herself of the statute, or a recognition of this element of damages by the court.

Considering the language employed in the clause above quoted from said section 1508, coupled with the fact that another section-1511-of the same act is a general statute of limitations requiring all actions of the kind to be brought within two years after the alleged negligence, the contention that the legislature intended to absolutely limit the action of the wife to one year is, in our judgment, unsound. If there were no surviving wife or husband it would hardly be asserted that the heirs could not bring their action at any time during the two years. On the other hand, if there were no heirs, we think the surviving wife or husband might bring

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