Threadgill v. Peabody Coal Co.

526 P.2d 676 (Colo. App. 1974)

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Nature of the Case

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Facts

P was an independent contractor hired by D to probe the test holes for the purpose of locating coal deposits. P's employees lowered a probing device to the bottom of each hole and proceeded to 'log' the hole as the probe was retrieved. The probing device became stuck in the hole. Employees of D then commenced recovery operations which were unsuccessful. P sued D for the loss of the probe. The court found that an oral contract for services of did exist, but that there had been no express agreement, oral or otherwise, upon the placement of the risk of loss of the probing device. It then held that P had satisfactorily established 'a certain practice or custom in the drilling industry which places the risk of probe loss on the driller where, as here, there is no agreement otherwise.' The court ruled that the negligence was immaterial under the trade practice, and thus, in effect, placed a duty of strict liability upon D. The court then entered judgment in favor of P. D appealed.