41 P. 499 (Colo. 1895), Denver Consolidated Electric Co. v. Simpson

Citation:41 P. 499, 21 Colo. 371
Opinion Judge:[21 Colo. 372] CAMPBELL, J.
Attorney:Wolcott & Vaile and H. F. May, for appellant. E. Caypless, H. N. Sales, and E. Keeler, for appellee.
Case Date:July 01, 1895
Court:Supreme Court of Colorado

Page 499

41 P. 499 (Colo. 1895)

21 Colo. 371




Supreme Court of Colorado

July 1, 1895

Appeal from district court, Arapahoe county.

Action by John H. Simpson against the Denver Consolidated Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wolcott & Vaile and H. F. May, for appellant.

E. Caypless, H. N. Sales, and E. Keeler, for appellee.

[21 Colo. 372] CAMPBELL, J.

This was an action by the appellee to recover damages for personal injuries. The evidence tends to show that the appellant, for the purpose of furnishing light, was engaged in the business of conveying and distributing electricity throughout the city of Denver by means of wires attached to and suspended from poles placed in the streets and alleys of the city. While the plaintiff was lawfully passing along one of the public alleys in the city, without any fault on his part, he came in contact with one of the defendant's wires, heavily charged with electricity, which wire had become disconnected and detached from its overhead fastening, and was hanging down to within about two feet of the ground in said alley. As the result of such contact, plaintiff received a severe shock from the electricity carried by the wire, and was seriously injured. The negligence charged against the defendant, of which there was some proof, consisted in its failure properly to construct its line, and its omission to take the necessary precautions to prevent the wires from falling and causing injury in case they became detached from their fastenings. There was a verdict for the plaintiff in the sum of $2,800, upon which the court entered judgment, to reverse which the appellant prosecutes this appeal.

The principal errors assigned relate to the overruling by the trial court of the defendant's demurrer to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action; to the admission of evidence, over the defendant's objection, tending to show that the defendant had notice of this defect in its line in time to make repairs before the accident; to the refusal of the court to submit to the jury, at the request of the defendant, certain questions for their answer; and to the giving of

Page 500

certain instructions by the court, over defendant's objection, defining the duty of the defendant to the traveling public.

The defendant's objection to the sufficiency of the complaint[21 Colo. 373] arises out of the supposition indulged in by its counsel that counsel for the plaintiff assumed that the defendant was an absolute insurer of the safety of the public from all danger from its wires, and drew his complaint upon that theory. If such were the fact, the complaint would be bad, for the defendant is not an insurer; but, aside from certain allegations found in the complaint, which, by themselves alone, might bear such construction, there are specific allegations to the effect that the presence in the alleyway of the wire which caused...

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