incorporated into the national constitution, and is found in the constitution of every state in the country. The object of the provision is the immunity of the individual from compulsory self-accusation. This immunity is, however, to be limited to the purpose for which it is given, viz. the protection of the witness from being compelled to furnish any evidence from which he may be subjected to prosecution or punishment, and is not to be extended so as to include an exemption from being compelled to give evidence that could not under any circumstances tend to his conviction of an offense against the laws of the state. The provision that a person shall not be compelled "in a criminal case" to be a witness "against himself" is to be construed as protecting him from being compelled to give any evidence which in a criminal prosecution against himself might in any degree tend to establish the offense with which he may be charged. It is only when his evidence may tend to establish an offense for which he may be punished under the laws of the state that he is a witness "against himself" in a criminal case. The "criminal case" in which he is a witness need not be against himself, but his immunity from compulsion extends to all evidence which may be used in any criminal case against himself, under whatever circumstances such evidence may be sought; but the fact that in a proceeding in which he is not the defendant his testimony may tend to show that he has violated the laws of the state is not sufficient to entitle him to claim this protection of the constitution, unless he is at the same time liable to prosecution and punishment for such violation. If, at the time of the transactions respecting which his testimony is sought, the acts themselves did not constitute an offense; or if, at the time of giving the testimony, the acts are no longer punishable; if the statute creating the offense has been repealed; if the witness has been tried for the offense and acquitted, or, if convicted, has satisfied the sentence of the law; if the offense is barred by the statute of limitations, and there is no pending prosecution against the witness,-he cannot claim any privilege under this provision of the constitution, since his testimony could not be used against him in any criminal case against himself, and consequently he is not compelled to be a witness "against himself." Equally is he deprived of claiming this exemption from giving evidence if the legislature has declared that he shall not be prosecuted or punished for any offense of which he gives evidence. Any evidence that he may give under such a statutory direction will not be "against himself," for the reason that, by the very act of giving the evidence, he becomes exempted from any prosecution or punishment for the offense respecting which his evidence is given. In such a case he is not compelled to give evidence which may be

used against himself in any criminal case, for the reason that the legislature has declared that there can be no criminal case against him which the evidence which he gives may tend to establish.

Section 32 of the "Purity of Election Law" (St. 1893, p. 26), under which the examination of Steinberger was had, provides: “A person offending against any provision of sections * * * [enumerating certain sections of the act] is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or lawful investigation or judicial proceeding, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying shall not thereafter be liable to indictment or presentment by information, nor to prosecution or punishment for the offense with reference to which his testimony was given, and may plead or prove the giving of testimony accordingly in bar of such indictment, information or prosecution." This section is taken from the statute of New York known as the "Corrupt Practices Prevention Act," and is also found in the English statute upon the same subject; and the closing paragraph of the section is also found in the statutes of New York passed in 1869 for the punishment of bribery, and subsequently incorporated in section 79 of the Penal Code of that state. Statutes containing similar provisions have been passed in many of the states of this country for the purpose of securing conviction for offenses in which two or more persons are required to participate in order to constitute the offense, such as bribery, gambling, usury, selling intoxicating liquors, and others; the legislatures doubtless considering that the offense would be effectually suppressed if one of the offenders only could be punished, and for that purpose making his participant in the offense a competent witness by exempting him from punishment. In the greater number of these statutes the provision of exemption was that the testimony should not be used against the witness; and prior to the decision in Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, in 1891, the decisions under these statutes were nearly uniform that this was a sufficient immunity; but, under the rule laid down in that case, such a provision does not meet the requirements of the constitution, and, unless there be an absolute immunity from all punishment for any offense respecting which the witness may be called upon to testify, he may claim the protection of the constitution against being compelled to give evidence against himself. Rulings similar to that in Counselman v. Hitchcock had been previously made in Emery's Case, 107 Mass. 172, and in Cullen's Case, 24 Grat. 624; and in Ex parte Clarke, 37 Pac. 230, the same principle was established in this state.

In State v. Nowell, 58 N. H. 314, it was held, under the provisions of a statute that the evidence given by a witness should not be used against him, and that he should not be thereafter prosecuted for any offense so disclosed by him, that this exemption gave him all the protection which was guarantied by the constitution, upon the ground that his legal immunity from prosecution was equivalent to his legal innocence of the crime disclosed by his testimony. A statute is to be construed with reference to its manifest object, except as such object may be defeated by the language of the statue itself. The language used is not to be enlarged beyond its ordinary construction for the purpose of effecting such object, nor, on the other hand, is the language to receive such a technical or limited construction as will defeat the manifest purpose of the statute. If the language is susceptible of two constructions, one of which will carry out and the other will defeat such manifest object, it should receive the former construction. So, too, if a statute is susceptible of two constructions, one of which is consistent with the constitution and the other repugnant thereto, it should be so construed as to be effective rather than void. Any stat ute involving a personal privilege or right conferred upon an individual by the constitution, is to be liberally construed in favor of the individual. The manifest object of section 32, aforesaid, is to secure evidence for the conviction of offenders against the provisions of the other sections of the statute which are enumerated therein; but it is only upon a "trial, hearing, prosecution, lawful investigation or judicial proceeding” against another person for offending against the provisions of those enumerated sections that a witness who has himself offended against these provisions of the sections can be compelled to testify. The offenses referred to in the enumerated sections are those against the purity of election, which require the co-operation of two or more persons; and the provision that one of these parties offending may be compelled to give testimony would be nugatory, in view of his constitutional protection, unless the legislature had at the same time furnished him with a shield for any offense with reference to which he would be compelled to testify. By the provisions of this section, the petitioner has the full pro*ection guarantied to him by the constitution against any self-accusation of crime. In addition to providing that his testimony shall not be used against him, it is declared that he shall not thereafter be liable to indictment or presentment by information, nor to prosecution or punishment, "for the offense with reference to which his testimony was given," and that he may plead or prove the giving of testimony in bar of such indictment, information, or prosecution. The immunity thus given includes not only the offense with which the defendant then under examination is charged, and in which the

witness was a participant with such defendant, but also any other offense with which the witness may be charged, and to which such testimony may have reference, or which it may tend to establish. "The offense with reference to which his testimony was given" is broader in its terms, and has a wider scope, than "the offense with which the defendant is charged"; and the exemption from prosecution or punishment consequent upon his giving testimony in reference thereto, when considered in view of the personal privilege given by the constitution, must receive a liberal construction in his favor. The statute purports to compel him to testify "in the same manner as any other person," and, as the equivalent for his constitutional protection, gives him a legislative protection of equal scope and effect by exempting him from all liability to punishment for the offense with reference to which he testifies. The exemption is as broad as the compulsion, and the protection is equal to that given by the constitution. The testimony which he may be compelled to give is the same as that which could be required of any other witness, and includes any matter within his knowledge which is relevant to the offense under investigation and material to its determination. If, in giving such testimony, the testimony has reference to another offense committed by himself, he is within the protection of the statute, and, upon any prosecution for such offense, is authorized to plead or prove in bar thereof that, under the compulsion of this section, he gave testimony with reference to such offense. We hold, therefore, that the petitioner should have answered the questions propounded to him, and that he was rightly adjudged guilty of contempt in refusing to answer them. The writ is discharged, and the petitioner remanded.

(20 Colo. 292)

MCGONIGLE v. KANE. (Supreme Court of Colorado. Oct. 29, 1894.) INJURIES TO EMPLOYE-ACTION AGAINST MASTERDEFECTIVE ELEVATOR-SUFFICIENCY OF COMPLAINT EVIDENCE.

1. In an action by an employé for injuries caused by the fall of an elevator, a complaint which, after describing the construction of the elevator, and of the fastenings which held it at the different floors, alleges that defendant neglected his duty to supply safe appliances, and built the elevator in a negligent manner, and used material so unsuitable and unsafe that the elevator was not fit for the uses it was intended for; that the accident happened by the elevator breaking from its fastenings, describing the accident in detail, and showing the specific defects which caused the accident; and that defendant knew of the defects, and plaintiff did not.-states a cause of action.

2. In an action for personal injuries, caused by the fall of an elevator, evidence that in moving the elevator to where it was at the time of the accident changes in its construction were made, is admissible under an allegation that the elevator was negligently constructed.

3. In an action by an employé for personal injuries, where the proof tends to show that the accident was due to the faulty construction of machinery, and that defendant's attention was repeatedly directed thereto, while the proof of plaintiff's negligence is very slight, the question of contributory negligence is for the jury.

4. In an action by an employé for injuries caused by the fall of an elevator, the question whether plaintiff was negligent in riding on the elevator after being warned not to do so is not material where the accident occurred 10 minutes after he had landed from the elevator, while he was properly thereon unloading stone.

5. In such a case, evidence that the engineer told plaintiff to go upon the elevator could not prejudice defendant.

6. It was proper to allow plaintiff to state whether he had ever been advised of or knew the condition of the elevator as to its being safe or unsafe.

7. It was proper to allow an expert to testify whether, in his opinion, the elevator was a safe and proper appliance for the purpose for which it was being used.

Appeal from district court, Pueblo county. Action by Samuel Kane against James A. McGonigle for personal injuries. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Plaintiff, in his amended complaint, alleges: "First. That on the 22d day of February, A. D. 1890, and prior thereto, James A. McGonigle, the defendant above named, was the contractor for the building of a certain stone and brick building in the city of Pueblo, county of Pueblo, and state of Colorado, which said building, otherwise known as the 'New Opera House Block,' was on said day, and for a long time prior thereto had been, in the course of construction by said defendant, as contractor aforesaid. Second. That by reason of the premises aforesaid said defendant became the employer of a large force of men as stone setters, brick masons, carpenters, laborers, etc., working in and about the construction of said building, among which said force of men was said Samuel Kane, plaintiff above named, who, for a certain hire and reward, was on said

22d day of February, 1890, and prior thereto, employed by said defendant as boss stone setter on said building. Third. That as the construction of said building progressed it became necessary to raise stone and other heavy building material to the walls and upper floors of said building, and for this purpose defendant had provided and had constructed on the premises a hoisting apparatus, known as an 'elevator,' which said elevator, as defendant is informed and believes, and upon information and belief states, consisted of a carriage or platform of wood, connected to a wooden beam above, which said carriage ascended and descended between two upright guides or slides, made of plank, and so placed with reference to said carriage as to permit of considerable oscillation or play of said carriage between said guides or slides. That at the height at which it was desired to have said carriage stop there was attached to each of said guides or slides a certain latch, pawl, or dog, made of wood, and supposed to be held in place by a so-called 'spring,' made of metal, to wit, iron; the upper ends of which said latches, pawls, or dogs were cut on a bevel to correspond to a similar bevel on either end of said beam of said carriage, which said latches, pawls, or dogs were intended to catch said beam at either end, and hold said carriage in place when the same was raised; and which said latches, pawls, or dogs were so placed that when said carriage was raised and resting on said latches, pawls, or dogs the top of the platform of said carriage was several inches below the floor where said elevator was to be unloaded. That said carriage was raised and lowered by means of a chain or rope attached to said beam, and connected with a steam engine and boiler, which said engine and boiler said defendant had provided for that purpose. That in the use of said elevator in the loading and unloading of stone and other material carried thereon it was necessary for the men engaged therein to go upon said elevator and work thereon, and especially was this the case in the loading and unloading of stone raised thereon to be set in the walls of said building; all of which facts said defendant well knew. Fourth. That by reason of the premises aforesaid it became and was the duty of said defendant to provide for the use of said Samuel Kane safe, secure, and suitable appliances and machinery used in and about the construction of said building; but the said defendant neglected his duty in this behalf, and negligently provided said elevator, and built and constructed the same so carelessly, negligently, and unskillfully, and used in the construction thereof material so unsuitable, insecure, and unsafe, that the said elevator was not safe for the uses and purposes for which the same was built and provided, of all of which facts the said defendant well knew, and which this said plaintiff did not know. That on the said

22d day of February, A. D. 1890, while said plaintiff was engaged in his said employment as aforesaid, and exercising due care and caution upon his part, and was upon said elevator, engaged in the work of removing from the carriage thereof a stone that had been raised on said elevator, which was intended to be set in the walls of said building, the carriage of said elevator, by reason of the negligence, unskillfulness, and carelessness hereinbefore complained of, and without any fault or negligence on the part of this plaintiff, broke from its fastenings, and fell to the ground below, and caused plaintiff, together with the stone that was being unloaded from said elevator, to fall to the ground a great distance, to wit, about sixty-six (66) feet, whereby and by reason whereof the said plaintiff had a fracture of the nasal bone, and a concussion of the spinal cord and brain, and was otherwise wounded, maimed, and lamed, and was sick and ill for many weeks, and still is so sick and ill, and suffered, and still continues to suffer, great mental and bodily pain and anguish, and from said 22d day of February has been unable to do any work or to earn any compensation whatever, and has reason to believe and does believe that he is permanently injured; whereby plaintiff has been injured and damaged to a large amount, to wit, twenty thousand dollars ($20,000), and has been obliged to lay out and expend divers sums of money in and about his cure and the procuring of the necessary assistance and attendance and medicine during the said sickness, in the whole amounting to a large sum of money, to wit, four hundred (400) dollars. Wherefore plaintiff prays judgment against said defendant for the said sum of twenty thousand four hundred dollars ($20,400) and costs of suit, and such other and further relief as to the court may seem just and proper." To this complaint a demurrer was filed and overruled. Afterwards the defendant filed the following answer: "Now comes the defendant in the above-entitled action, and for answer to plaintiff's amended complaint herein denies that said hoisting apparatus or elevator was constructed or arranged as stated in said complaint, and alleges that the same was constructed in the most approved manner, and of the best material, and was in every way and manner adequate, suitable, and proper for the purposes for which the same was constructed and used; denies that defendant neglected his duty in the construction of said elevator, as stated in said complaint, or otherwise; denies that he carelessly, negligently, or unskillfully used in the construction thereof material which was unsuitable or insecure or unsafe; denies that the said elevator was not safe for the uses and purposes for which the same was built and used, and, on the contrary, alleges that the same was properly and skillfully constructed of suitable, secure, and safe mate

rials and workmanship; denies that defendant had any knowledge whatever in regard to any unsuitableness, insecurity, or defect therein; denies that plaintiff did not have full knowledge in regard to said elevator and everything pertaining to the same, and, on the contrary, alleges that plaintiff had full knowledge and information, and the means of knowledge and information, in regard thereto, and better knowledge and means of knowledge in regard to the same than had defendant at the time stated; denies that at the time stated plaintiff was exercising due care or caution on his part in the work in which he was engaged, and denies that any accident occurred to him, or that plaintiff was injured, by or through any negligence, unskillfulness, or carelessness of defendant, as stated in said complaint or otherwise; denies that plaintiff was injured without any fault or negligence on his part; denies that said carriage broke from its fastenings and fell to the ground, as stated in said complaint, by, on account of, through the means, or in the manner stated in said complaint. Defendant has not and cannot obtain sufficient knowledge or information on which to base a belief or make answer in regard to the injuries claimed to have been received by plaintiff, as stated in said complaint, and therefore denies the same. Defendant, further answering, alleges that whatever injuries were sustained by the plaintiff were received by, through, and on account of the acts, negligence, and want of care of plaintiff himself and of his coemployés engaged in the same general line of employment, and not by, through, or on account of any act, default, or negligence on the part of defendant. Defendant, further answering, alleges that in regard to all of the matters and things stated in said complaint defendant used due care, caution, and skill in the construction and maintenance of said machinery and appliances described in said complaint, and used proper materials and workmanship, and that defendant had no knowledge whatever, and no means of knowledge, and by the exercise of care and diligence could not have known, of any defect therein. Wherefore defendant prays to be dismissed, and to recover his costs in this behalf expended." The replication puts in issue all new matter alleged in the answer. Upon these issues the cause was tried to a jury, and a verdict returned for plaintiff for $5,267. A motion for a new trial having been interposed and overruled, judgment was entered upon this verdict, and the defendant brings the case here by appeal.

Teller, Orahood & Morgan, for appellant. B. D. V. Reeve, J. H. H. Low, and Dixon & Dixon, for appellee.

HAYT, C. J. (after stating the facts). This is an action for personal injuries, alleged to have been received by plaintiff, Samuel

Kane, while in the employ of the defendant, James A. McGonigle. McGonigle was was at the time engaged in the construction of the Pueblo Opera House, as contractor, and Kane was in his employ. The injuries made the basis of this suit resulted from the falling of an elevator provided by the defendant to be used by plaintiff and others for raising stone and other building material to the upper stories, to be there used in the construction of the building. The elevator was furnished with appliances called "dogs," which were intended to catch above and hold the elevator in place during the time of unloading. Upon the day of the accident, and immediately prior thereto, the elevator had been used in hoisting a building stone weighing about 250 pounds to the fourth floor. It was a part of plaintiff's duty to unload this stone, and while so engaged the fastenings above gave way, the elevator and its contents, including plaintiff, were precipitated to the basement below, a distance of about 70 feet. Plaintiff, as the result of this fall, was rendered unconscious for three weeks, his spinal cord was injured, and his brain affected. At the time of the trial,-three years after the injuries were received,-plaintiff was still unable to do any physical labor, and was then, and had been for a period of one year, growing worse, instead of better.

The first error relied upon in this court challenges the sufficiency of the amended complaint. This was raised in the trial court in various ways, viz. by demurrer, by objections to the admission of evidence, a motion for a nonsuit, etc. The demurrer, in addition to the general objection that the complaint did not state a cause of action, contained specific objections to the pleading. The latter were waived, however, by the defendant answering over. The only question, therefore, presented upon the sufficiency of the amended complaint upon this review is the general one, viz. does the pleading state a cause of action? The particular objection urged in argument is that the allegations of the employer's negligence are, by reason of their generality, insufficient to warrant a recovery. If it be conceded that the allegations of the complaint are not as definite and certain as good pleading requires, it does not necessarily follow that the pleading is so indefinite and uncertain as to entirely fail to state a cause of action. The complaint sets up the relation existing between the parties. It describes the elevator, and the manner of its construction and operation. It describes with great particularity the fastenings by which the elevator was held in position when it was raised to the upper floors. It sets forth the duty of the master to provide safe and suitable appliances, and states that he neglected his duty in this behalf, and built and constructed the elevator in a careless, negligent, and unskillful manv.38P.no.6-24

ner, and that he used in the construction thereof material so unsuitable, insecure, and unsafe that the said elevator was not safe for the uses for which it was provided, as the defendant well knew, but the plaintiff did not know. It is alleged that the accident was caused by the elevator breaking from its fastenings. The manner in which the accident happened is set forth in detail, and it is averred that the same resulted from the negligence, unskillfulness, and carelessness as above set forth. The specific defect of the machine is pointed out, so that one cannot read the complaint without being advised of the exact cause of action relied upon by the plaintiff. As a rule, negligence may be pleaded generally. It is an nltimate fact, and only ultimate facts are to be pleaded. Bliss, in his work on Code Pleading (section 211a), says: "The gen

eral allegation of negligence is allowed as qualifying an act otherwise not wrongful. It is not the principal act charged as having caused the injury, but it gives color to the act, makes it a legal wrong. It is the absence of care in doing the act." Negligence being the ultimate fact to be established, a general allegation is sufficient. "To allege more," says Rothrock, J., in Grinde v. Railroad Co., 42 Iowa, 376, "would be to plead the evidence, which is not allowable." Upon principle and authority we conclude that the negligence of the defendant is sufficiently charged, and that the complaint states a cause of action.

The motion for a nonsuit was based upon other grounds in addition to the insufficiency of the complaint. There seems to be no foundation for the claim of a variance between the allegations and the proof. Proof that the elevator was removed from the stage and set up in the tower where it was being operated at the time of the accident, and of the changes that were then made in its construction, was competent under the allegations with reference to its construction. In fact, the proof in this respect follows very closely the allegations of the complaint. That this issue was well understood by the defendant is also apparent from the denials of his answer.

The evidence of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff was for the jury, and not for the court to weigh. The proof tends to show that the accident was due to the faulty construction of the apparatus employed to hold the elevator in place, and that the defendant's attention was repeatedly directed thereto; while the proof of contributory negligence is so slight that it would have been a matter of surprise if the jury had decided other than they did upon both questions.

It is claimed that the plaintiff was guilty of negligence in riding upon the elevator after he had been warned not to do so, but it is entirely unnecessary to determine this