Beezley v. Olson

• Decision Date: 17 May 1954
• Docket Number: No. 17106,17106
• Citation: 270 P.2d 758,129 Colo. 406
• Parties: BEEZLEY et al. v. OLSON.
• Court: Colorado Supreme Court

Page 758

270 P.2d 758

129 Colo. 406

BEEZLEY et al. v. OLSON.

No. 17106.

Supreme Court of Colorado.

May 17, 1954.

Rehearing Denied June 7, 1954.

Dean Johnson, William H. Moulton, Burlington, for plaintiffs in error.

Thomas & Thomas, Burlington, for defendant in error.

HOLLAND, Justice.

At about 11:45 A. M. January 31, 1951, plaintiff, defendant in error, slipped and fell on a sidewalk in front of a theater building in Burlington, Colorado. As a result of this fall she was injured, and on June 5, 1952, filed her complaint in the district court against the property owner and the Town for damages. The allegation with which we are principally concerned is that the property owner installed a new cement sidewalk in front of his place of business, and in reconstructing the sidewalk caused the cement to be troweled to a smooth surface; that as a result, the sidewalk became slick and slippery, particularly when wet; that it was dangerous to pedestrains; and further, that both defendants knew or should have known the dangerous and unsafe condition of the sidewalk, but failed to take steps to render it safe. She asked for damages in the sum of $5,551.04, and on trial to a jury, after answers were filed, a verdict was returned in her favor in the sum of $1,432.69, on which judgment was entered, and this judgment is the subject of this review under writ of error.

On March 15, 1951, within the statutory period, plaintiff caused an amended notice of injury to be served upon the Town in whih she stated as follows:

'The cause of the injury was the failure to remove from the sidewalk and place provided for pedestrians ice and snow with the result that the sidewalk in front of the said premises was slippery and slick, causing the undersigned Iva Olson to slip and fall thereon. Nothing had been done to the sidewalk to remove the ice and snow therefrom or to make walking on said sidewalk safe for pedestrians and for the undersigned.'

The notice as to time and place was sufficient. In its answer, the Town alleged that the complaint failed to state a claim upon which relief could be granted, and also alleged the insufficiency of the notice to charge the Town with liability. The property owner, Beezley, answered, denying liability and alleged that the complaint failed to state a claim upon which relief could be granted and further alleged contributory negligence and that it was an unavoidable accident.

A number of witnesses testified, both for plaintiff and defendants, and there is not a sufficient conflict in the entire record touching upon the controlling question here, to requre any detail of such testimony.

The facts clearly appearing from the testimony are that the property owner, desiring to improve his property, as well as the looks thereof, removed a sidewalk that was somewhat unsightly and not in good shape and replaced it with cement sidewalk containing some coloring matter in the cement and he requested the cement contractor to finish the sidewalk with a smooth troweled surface. He did not obtain a permit, as such, from the Town for this work; however, he notified some of the town officials of what he was doing and the Town apparently acquiesced in the project, because at the time the sidewalk was put in by the contractor, the Town put in the curbing at this point. A cooperative weather bureau observer for the Department of Commerce weather bureau of the United States testified, in substance, from his records, that during the period from January 29 to five o'clock P. M. January 31, 1951, the weather varied from several degrees below zero to a few degrees above; that there was two inches of snow on the ground on the 29th day of January; and no additional snow on the 30th; that the highest temperature during the three-day period, was ten above zero; and the records disclosed that at five o'clock on the afternoon of January 31, there was about four inches of snow and sleet on the ground. It is not disputed that defendant in error fell at the time alleged; one witness saw her fall; but testified she got up and went into a nearby store. There is no testimony to...