Opinion
Albin Anderson, Grand Junction, for plaintiff-appellant.
Reams & King, Vincent W. King, Grand Junction, for defendants-appellees.
SMITH, Judge.
Plaintiff Valley Electric, Inc., (Valley) sued defendants Melvin S. Doughty, and his employee, Darrell Watson, for damages allegedly resulting from their negligence. After a trial to the court, judgment was ultimately entered for defendants based upon the court's findings and conclusion that although defendants were negligent, contributory negligence by the plaintiff precluded its recovery. It is the issue of plaintiff's contributory negligence which forms the basis of this appeal. We affirm.
Valley, a general contractor, was engaged in the construction of a filter facility in connection with a water supply system owned and operated by the town of Fruita, Colorado. Doughty, under the name of Doughty Steel and Machine Co., contracted with Valley to supply welders to work on construction of the filter facility. George Lynch, the project foreman for Valley, directed Watson, one of Doughty's welders of considerable experience, to weld a portion of a tank on the construction site and showed Watson what needed to be done. Watson asked Lynch if it would be all right if sparks from the welding torch fell into the dark recesses of the tank beneath his work area. Lynch responded with the words, 'Do'er.' Watson made no inspection of the interior of the tank where the sparks ultimately fell. As a result of the falling sparks, combustible tilt tubes installed below Watson's work area ignited and the subsequent fire caused extensive damage. Lynch was an electrician by trade and had no experience with welding; however, he testified that he knew a cutting torch would produce hot sparks. Lynch supervised the placement of the inflammable materials within the tank. Watson's negligence in not inspecting the tank area where his welding sparks fell is not contested on appeal.
The court found that Watson was working at the time of the accident within the scope of his employment with Doughty, and was not a loaned servant. The court concluded that Lynch, acting within the scope of his employment with Valley, was contributorily negligent in advising that the sparks could be allowed to fall into the dark tank, and that this negligence is imputed to his employer, Valley.
Contributory Negligence
The question of contributory negligence is for the trier of facts, and if, upon competent evidence, the trier of facts determines that contributory negligence exists, we will not disturb that finding. McQueen v. Robbins, 28 Colo.App. 436, 476 P.2d 57. In the instant case, the evidence supported the finding, establishing: (1) That Lynch was responsible for placing the combustible materials in the dark tank; (2) that he knew that welding causes hot sparks; and (3) that he acknowledged to Watson that it was all right to let the sparks fall some seven feet into the dark portion of the tank.
Strict Liability
Valley argues that an oxygen-acetylene cutting torch is an inherently dangerous instrumentality which imposes absolute liability for damages proximately resulting from its use without proof of negligence, and that therefore, contributory negligence is not a defense.
In Colorado, the rule of absolute liability without proof of negligence for injuries resulting from the use of an inherently dangerous instrumentality has not been extended beyond the activity of blasting. See Garden of the Gods Village, Inc. v. Hellman, 133 Colo. 286, 294 P.2d 597. We agree that welding with an oxygen-acetylene cutting torch presents some hazards because of the extreme heat generated by this device. However, we are not convinced that its use is an inherently dangerous activity which imposes liability upon the user without proof of negligence. See Ward v. Aero-Spray, Inc., 170 Colo. 26, 458 P.2d 744; Grange Mutual Fire Insurance Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950.
Furthermore, the trial court in its pre-trial order defined the issues in the lawsuit as being those of negligence. This was the only theory of recovery advanced by plaintiff prior to or during trial. Valley briefly mentioned the dangerous instrumentality concept in its motion to amend or alter the amended judgment. However, Valley cannot raise on appeal the theory of absolute liability which was neither presented as an issue, substantiated by the evidence, nor argued at trial. Carlberg v. Willmott, 87 Colo. 374, 287 P. 863; Rutherford v. Scarborough, 28 Colo.App. 352, 472 P.2d 721.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.