Aikens v. George W. Clayton Trust Com'n

• Decision Date: 03 October 1955
• Docket Number: No. 17516,17516
• Citation: 288 P.2d 349,132 Colo. 374
• Parties: Emma M. AIKENS, Plaintiff in Error, v. The GEORGE W. CLAYTON TRUST COMMISSION; Quigg Newton, Mayor, and President of the Commission; George A. Cavender, President of the Board of Councilmen and Vice-President of the Commission; Arthur S. Brodhead, Manager of Revenue of the City and County of Denver and Secretary-Treasurer of the Commission; and Arthur Scheibel, Defendants in Error.
• Court: Colorado Supreme Court

Page 349

288 P.2d 349

132 Colo. 374

Emma M. AIKENS, Plaintiff in Error, v. The GEORGE W. CLAYTON TRUST COMMISSION; Quigg Newton, Mayor and President of the Commission; George A. Cavender President of the Board of Councilmen and Vice-President of the Commission; Arthur S. Brodhead, Manager of Revenue of the City and County of Denver and Secretary-Treasurer of the Commission; and Arthur Scheibel, Defendants in Error.

No. 17516.

Supreme Court of Colorado, En Banc.

Oct. 3, 1955.

Petition for Rehearing Stricken Oct. 24, 1955.

James E. Griffith, Denver, for plaintiff in error.

Wood & Ris, Eugene S. Hames, Denver, for defendants in error.

HOLLAND, Justice.

Plaintiff in error, as plaintiff, on October 1, 1948, filed her complaint in the district court against The George W. Clayton Trust Commission, its individual members, and the City and County of Denver, alleging that on November 5, 1947, when alighting from a tramway bus at the southwest corner of 13th avenue and Clarkson street, she was thrown to the ground because of a hole in the parkway of the property maintained by defendants, and as a result received injuries and prayed for judgment in the sum of $15,000. By her amended complaints, plaintiff alleged that in falling she fell onto a pipe railing along the inside of the sidewalk at the corner, which had been erected by Scheibel, an employee of the defendant Commission. The city moved to dismiss as to it on the ground that plaintiff had failed to give the 60-day notice required by charter, which motion was sustained. On Motions of remaining defendants, plaintiff filed a first, second and third amended complaint. The third complaint was for the naming of an additional party defendant, Scheibel, an employee of The Clayton Trust Commission. Trial was commenced to a jury on May 26, 1954, and at the close of plaintiff's evidence, defendants jointly moved for a directed verdict or that the complaint be dismissed. The motion to dismiss was granted; motion for new trial dispensed with; and thereupon a writ of error was procured by plaintiff.

As shown by the exhibits, this railing is such as is to be found at the corners of many properties, presumably to prevent pedestrians and bicycle riders from cutting through the corner to the injury and destruction of the lawn. The Trust Commission is the owner of the property and the record discloses that this so-called small guard railing was there for many years and was not placed there by the Commission, contrary to plaintiff's allegation and contention.

No witness other than plaintiff testified as to how the accident happened, and plaintiff testified that she had lived at 1225 Clarkson street for sixteen years; that she was thoroughly familiar with the corner and the railing, as well as the condition of the street and the parking. She had noticed the hole or depression in the parking all summer and in getting off the tramway bus, she always tried to avoid stepping into the hole or depression, and usually went to the front door of the bus to alight. She testified that she stepped into the hole, and that when she attempted to step out of it she did not step high enough and stubbed her toe and started to fall; that in falling she fell all the way across the sidewalk and onto the railing, a distance...