Atkinson v. Ives, No. 16836

Docket NºNo. 16836
Citation255 P.2d 749, 127 Colo. 243
Case DateMarch 09, 1953
CourtSupreme Court of Colorado

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.

[127 Colo. 244] 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

Page 750

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 [127 Colo. 245] 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; [127 Colo. 246] 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...

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7 practice notes
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...2 Restatement of Torts 2d, § 330 at 175.' Under prior Colorado law social guests have been held to be licensees. Atkinson v. Ives, 127 Colo. 243, 255 P.2d 749. This was Page 311 noted in Kenney, after which Mr. Justice Day concluded: 'However, even if plaintiff were classified as a 'license......
  • Smith v. Smith, 2017-SC-000348-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • December 13, 2018
    ...an invitee when homeowner derived benefit from neighbor coming onto land to assist in moving slabs to form path); Atkinson v. Ives, [127 Colo. 243,] 255 P.2d 749, 752 ( [Colo.] 1953) (to be invitee, "plaintiff would have to be on defendant’s property by invitation, express or implied, ......
  • McClure v. Rich, No. 05-02-00141-CV.
    • United States
    • Court of Appeals of Texas
    • December 19, 2002
    ...an invitee when homeowner derived benefit from neighbor coming onto land to assist in moving slabs to form path); Atkinson v. Ives, 127 Colo. 243, 255 P.2d 749, 752 (1953) (to be invitee, "plaintiff would have to be on defendant's property by invitation, express or implied, for some pu......
  • Smith v. Brittain, NO. 12-19-00397-CV
    • United States
    • Court of Appeals of Texas
    • October 21, 2020
    ...an invitee when homeowner derived benefit from neighbor coming onto land to assist in moving slabs to form path); Atkinson v. Ives, 255 P.2d 749, 752 (Colo. App. 1953) (to be invitee, "plaintiff would have to be on defendant's property by invitation, express or implied, for some purpos......
  • Request a trial to view additional results
7 cases
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...2 Restatement of Torts 2d, § 330 at 175.' Under prior Colorado law social guests have been held to be licensees. Atkinson v. Ives, 127 Colo. 243, 255 P.2d 749. This was Page 311 noted in Kenney, after which Mr. Justice Day concluded: 'However, even if plaintiff were classified as a 'license......
  • Smith v. Smith, 2017-SC-000348-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • December 13, 2018
    ...an invitee when homeowner derived benefit from neighbor coming onto land to assist in moving slabs to form path); Atkinson v. Ives, [127 Colo. 243,] 255 P.2d 749, 752 ( [Colo.] 1953) (to be invitee, "plaintiff would have to be on defendant’s property by invitation, express or implied, ......
  • McClure v. Rich, No. 05-02-00141-CV.
    • United States
    • Court of Appeals of Texas
    • December 19, 2002
    ...an invitee when homeowner derived benefit from neighbor coming onto land to assist in moving slabs to form path); Atkinson v. Ives, 127 Colo. 243, 255 P.2d 749, 752 (1953) (to be invitee, "plaintiff would have to be on defendant's property by invitation, express or implied, for some pu......
  • Smith v. Brittain, NO. 12-19-00397-CV
    • United States
    • Court of Appeals of Texas
    • October 21, 2020
    ...an invitee when homeowner derived benefit from neighbor coming onto land to assist in moving slabs to form path); Atkinson v. Ives, 255 P.2d 749, 752 (Colo. App. 1953) (to be invitee, "plaintiff would have to be on defendant's property by invitation, express or implied, for some purpos......
  • Request a trial to view additional results

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