Belcaro Realty Inv. Co. v. Norton, 14178.

• Decision Date: 20 February 1939
• Docket Number: 14178.
• Citation: 87 P.2d 1114,103 Colo. 485
• Parties: BELCARO REALTY INV. CO. et al. v. NORTON.
• Court: Colorado Supreme Court

87 P.2d 1114

103 Colo. 485

BELCARO REALTY INV. CO. et al. v. NORTON.

No. 14178.

Supreme Court of Colorado, En Banc.

February 20, 1939

Error to District Court, City and County of Denver; Otto Bock Judge.

Action by Zoe Norton against the Belcaro Realty Investment Company the City and County of Denver and another, for injuries sustained due to alleged defects in sidewalk. To review a judgment for plaintiff, named defendants bring error.

Judgment affirmed.

FRANCIS E. BOUCK, J., dissenting.

Bartels, Blood & Bancroft and Arthur H. Laws, all of Denver, for plaintiff in error Belcaro Realty Inv. Co.

Malcolm Lindsey, Glenn G. Saunders, and Robert J. Kirschwing, all of Denver, for plaintiff in error City and County of Denver.

F. E Dickerson, T. J. Morrissey, and C. D. Bromley all of Denver for defendant in error.

William T. Wolvington, Kenneth M. Wormwood, W. A. Alexander, Cecil M. Draper, Edward L. Wood, and Bernard J. Seeman, all of Denver, amici curiae.

BAKKE Justice.

This is an action for $30,000 damages grounded on negligence, brought by Norton against Belcaro Realty Investment Company and the City and County of Denver. Defendants, by writ of error, seek reversal of a judgment against them in the sum of $6,250. Originally, the Denver Tramway Corporation also was named as a defendant, but the jury returned a verdict in its favor. Reference will be made to the parties as they appeared below, or by name.

The facts are substantially as follows: At about six o'clock p. m., February 20, 1935, plaintiff, Zoe Norton, a woman fifty-seven years of age, was on her way from work at the West Hotel in downtown Denver to her home on South Ogden street. She had ridden a tramway company streetcar out east Colfax avenue to Marion street where she alighted to transfer to a south-bound Marion street bus, also operated by the tramway company. Upon alighting from the street car, she walked to and upon the sidewalk on the south side of Colfax avenue in a southeasterly direction toward the bus-stop at the curb on the west side of Marion street. As the bus neared, she approached the curb, her forward progress toward the bus as it approached apparently being temporarily halted. It appears from the record that in laying the sidewalk at this point, there being a desire on the part of the city to preserve an elm tree that had been there for some years, the walk was so constructed as to leave a rectangular depression some four feet in size and five inches deep, to facilitate the watering of the tree. As Mrs. Norton moved back from the curb line away from the approaching bus, she stepped into this depression, lost her balance and fell against the projecting edge of the walk, thereby sustaining serious permanent injuries.

The Belcaro Realty Investment Company is the owner of a large public market building which occupies the entire frontage on the south side of Colfax avenue, extending from Marion street on the east, to Downing street on the west, and back to the alley. It is specifically admitted by the city that this company owned the real estate to the curb line of the property on which the injury occurred, and the company admits that it is the owner of certain property lying and situate south of East Colfax avenue and between Downing and Marion streets, 'but, as to whether the property so owned by this defendant is the same property referred to and alleged in paragraph 1 of [103 Colo. 488] said complaint, the defendant has not and cannot obtain sufficient knowledge or information upon which to base a belief.' In any event, there is no serious dispute concerning the question of ownership of the real estate.

Both defendants admit the construction of the sidewalk out to the curb, as alleged, under a permit issued by the city and approved by the city inspector, who testified that at the time the sidewalk was under construction, in the autumn of 1934, and shortly thereafter, he 'saw it and knew of its then condition.'

The alleged negligence consisted of the construction of the sidewalk in the manner described, and maintaining the same without suitable fence, guard or other safety device, or covering the depression so as to make it reasonably safe for the ordinary travel for which it was used.

There is no serious dispute as to the extent of Mrs. Norton's injuries, nor is it contended by either of the defendants that the verdict is excessive.

There were two trials below. In the first, the jury returned a verdict of $1,200 in favor of plaintiff, whereupon her counsel moved for, and was granted, a new trial on the issue of the amount of damages alone, and it was in the second trial that the verdict for plaintiff for $6,250 was returned.

The following are presented for our consideration: (1) Both defendants rely on the alleged contributory negligence of the plaintiff. (2) A second defense of the city alleges that it was acting in its governmental capacity, and hence not liable in tort. (3) A second defense relied upon by the Belcaro Company was that said sidewalk was constructed under the supervision, order, direction, control of, and that it was approved by, the city, acting through its lawful agents. (4) Assignments of error directed to alleged improprieties in the giving and refusal of instructions. (5) Both defendants also contend that the granting of a new trial on the issue of damages alone was error.

It is conceded by counsel for both defendants that the applicable law in cases of this character is as follows: 'It is the duty of a city to maintain its streets and highways in a reasonably good condition for ordinary travel by persons using due care and prudence in the use of the same. Citizens owning property bordering upon the street have not the right to place obstructions upon such portions of the street as [are] is intended to be used as a travelway, and the city has no right to suffer this to be done. Where it is permitted, and one lawfully upon the street and using due care is injured because of such obstruction, and without fault upon his part, the city is liable. The city is not liable, however, except in cases where an obstruction is the proximate cause of the injury, and it is not liable if the party injured could have avoided the injury by the exercise of reasonable and ordinary care and prudence.' City of Denver v. Utzler, 38 Colo. 300, 303, 88 P. 143, 144, 8 L.R.A.,N.S., 77, 120 Am.St.Rep. 108. See, also, Thunborg v. City of Pueblo, 45 Colo. 337, 101 P. 399.'

There is considerable dispute as to just how the accident resulting in plaintiff's fall and injuries was caused, but defendants assume that it occurred by reason of her stepping backward into the depression, and they allege that in so doing she did not act with the reasonable and ordinary care required of a prudent person in such circumstances. We think the answer, evidently adopted by the jury is, that if there had been no depression, and if the sidewalk had been level where the accident occurred, plaintiff would not have fallen. In its consideration of the case, it evidently believed that taking a step or so backward to get out of the way of an approaching bus or street car, which is about to stop to take on passengers, was the natural thing to do.

1. Apparently, counsel for defendants here urge for the first time that plaintiff was guilty of contributory negligence as a matter of law. Several instructions on the law of contributory negligence were given the jury, and, there being no objection, we must assume that that question was properly submitted to the jury for its consideration. Only one authority is cited by the defense on this point (Crocker v. Orono, 112 Me. 116, 90 A. 978), and from a reading, it clearly appears that it is distinguishable from the instant case.

In any event, this court has heretofore held that evidence of a plaintiff's movements, under substantially similar circumstances as here presented, was properly submitted to the jury on the question of contributory negligence. City of Pueblo v. Sinclair, 92 Colo. 256, 19 P.2d 494; Knight v. City of La Grande, 127 Or. 76, 271 P. 41, 61 A.L.R. 256 and City of Birmingham v. Martin, 228 Ala. 318, 153 So. 235.

2. Was the city acting in its governmental capacity in ordering or approving the construction of the sidewalk as above described so as not to be liable in tort? To establish an affirmative answer to this question an effort was made to show that it was pursuing a policy at the time to make Denver a 'city beautiful,' and that a part of that policy was the preservation of such trees as the one growing in the center of the square depression into which plaintiff fell. The only evidence of such policy, which might have made it a question of law, was the introduction of section 2037 of the 1927 Municipal Code, which reads: 'That no person shall move any building or other object so as to injure or interfere with any tree or shrub standing in any street, public highway or other public ground, and no person shall place any advertisement, announcement or notice upon, or print upon, any tree or shrub situate in any street, highway or other public ground.'

During his interrogation on this matter, one of the foresters for the city was asked 'if the city has any policy with relation to the preservation of tree life in the city * * *?' He responded, 'It is not written in any ordinance.' Thus, was the door opened for the introduction of testimony on the proposition of whether or not the manner of constructing the sidewalk in order to save the tree in the present case was the result of a definite and fixed policy. Representatives of the city admitted that there was nothing in the ordinance, or any rule or regulation, which would have prohibited the installation of 'a laminated iron grating with two...