Atkinson v. Ives, 16836

• Decision Date: 09 March 1953
• Docket Number: No. 16836,16836
• Citation: 255 P.2d 749,127 Colo. 243
• Parties: ATKINSON v. IVES.
• Court: Colorado Supreme Court

Page 749

255 P.2d 749

127 Colo. 243

ATKINSON v. IVES.

No. 16836.

Supreme Court of Colorado, en Banc.

March 9, 1953.

Rehearing Denied April 13, 1953.

Wood & Ris and Thurman, Gregory & Taylor, Denver, for plaintiff in error.

Victoria F. Gross, Denver, for defendant in error.

HOLLAND, Justice.

Defendant in error, as plaintiff in the trial court, obtained a judgment on a jury verdict against plaintiff in error, in the sum of $3,122 for personal injury received while on defendant's ranch on the claim of simple negligence on the part of defendant. A motion for directed verdict was seasonably made after all the evidence had been introduced, which was denied, as also was a motion to set aside the verdict returned later.

No error is assigned as to any ruling of the trial court on the admission or rejection of evidence, or to the instructions given or refused. Defendant stands squarely on the error claimed in the denial of the motions referred to. We find no conflict in the evidence concerning the acts of plaintiff or defendant prior to the accident. Only questions of law are here involved, which were submitted to the trial court in the motions there presented.

The controlling question is not whether plaintiff was an 'invitee' or a 'licensee' on defendant's ranch at the time of the injury, but rather whether or not there is any evidence to establish liability in either event.

Plaintiff alleged that on the 15th day of October, 1949, he was a member of a party of paying guests occupying a detached hunting lodge or cabin on the ranch known as X Bar X, located in Pitkin County and owned by defendant; that defendant maintained a way or approach from the cabin occupied by plaintiff to the main ranch house leading across a patio to a club room, and thence to the dining room of the ranch house, which plaintiff was invited to traverse; that on the date mentioned, the patio was in a negligent, dangerous condition, without lights to illuminate same; that a stone which constituted a portion of the floor of the patio near the stairway leading from the patio had become loosened in the embedding cement; that the loose stone was not apparent nor discernible; that about 8:30 o'clock in the evening on said date plaintiff, while crossing the patio and unaware of the loosened condition of the stone, trod upon the loose portion of the patio and was thrown off balance and hurled over the edge of the patio, causing his injury; that said fall was occasioned by the negligent condition existing upon the premises. Defendant answered, admitting the presence of plaintiff on defendant's property, but denying that plaintiff was a paying guest of defendant; denied that he was negligent in maintaining the patio, and in failing to illuminate the same; denies that plaintiff's fall was occasioned by any negligent condition of the premises; as a third defense, alleges that plaintiff was not a guest or invitee of defendant, but was a mere licensee upon the premises of defendant, and defendant therefore is not liable to plaintiff for injury resulting from simple negligence, if any; and further, that plaintiff contributed to the happening of the accident; and as a fifth defense, alleged that the injuries and damages, if any, resulted solely from an unavoidable accident.

The evidence discloses that defendant was the owner of the ranch in question containing about 1200 acres located on East Sopris Creek south of Glenwood, at an altitude of about 7400 feet, where defendant and his family resided on a year-round basis until about March of 1950. After acquiring the ranch, defendant made some improvements on the two-story log ranch house, among which was a patio which was constructed by building a flagstone wall, and the area between the wall and the house was filled with dirt to a point six inches below the top of the wall, over which a six-inch layer of cement was laid flush with the top of the wall. The outer edge of the cement portion consisted of the top of the rock wall, each rock being embedded in the cement. The flat surface of the porch or 'patio' was about eighteen to twenty inches above the level of the ground, and seven and one-half feet wide. This porch was finished in June of 1949 and was used by defendant's family daily in going in and out of the house; that it was the custom of defendant's wife to sweep the patio each day, and the evidence is undisputed that defendant was not aware of the loose stone at the edge of the porch prior to plaintiff's fall on October 15, 1949; that no one had informed him that it was loose; that no one had ever fallen there; and that he was wholly unaware of any defect prior to the fall. Defendant's wife testified that her attention had never been attracted to a loose stone.

It is worthy to note at this point that in paragraph 4 of plaintiff's complaint is the following allegation: '* * * that the loose stone was not apparent nor discernible.' As bearing upon the question of whether plaintiff was an 'invitee' or 'licensee,' if such is vital, a recital of the following substance of the testimony is necessary: It appears that Herbert C. Anderson and wife, prior to the summer of 1949, had been personal friends of defendant's wife, but not of defendant himself; that the Andersons spent the early part of the summer visiting friends as guests on a ranch near Meeker, Colorado, and thereafter defendant's wife invited them to be guests of the X Bar X ranch owned by defendant; that the invitation was accepted and the Andersons visited the ranch in the latter part of the summer and then returned to their home in Denver; that upon...