Brent v. Bank of Aurora

Decision Date05 December 1955
Docket NumberNo. 17720,17720
Citation132 Colo. 577,291 P.2d 391
PartiesCarleton BRENT and Dorothy Brent, Plaintiffs in Error, v. BANK OF AURORA, a Colorado corporation, Defendant in Error.
CourtColorado Supreme Court

William L. Osthoff, Jr., Denver, for plaintiffs in error.

McComb, Zarlengo & Mott, Denver, for defendant in error.

ALTER, Chief Justice.

Carleton Brent and Dorothy Brent, husband and wife, as plaintiffs, brought an action against Bank of Aurora, a Colorado corporation, seeking damages in their first claim in the sum of $13,023.94 on account of expenses and damages arising out of injuries sustained by Dorothy in falling on the bank's premises, and in their second claim the sum of $10,000 by reason of the death of their minor child resulting from said fall. The cause was tried to a jury, and at the conclusion of plaintiffs' case in chief the court granted defendant's motion for a directed verdict, and judgment of dismissal followed. Plaintiffs are here by writ of error seeking a reversal of the judgment.

The evidence discloses that plaintiffs are husband and wife, residing in Aurora, Colorado, and are depositors in the Bank of Aurora. On the evening of December 11, 1953, shortly after 7 o'clock, plaintiffs, together with their three children, left their home by automobile, five or six blocks from the bank, for the purpose of making a deposit in the bank. On arriving at the bank, plaintiff Carleton Brent, who was driving, attempted to park his automobile in one of the two parking lots maintained by the bank for the use of those having business therewith, and, finding the space available for his parking was narrow, he stopped prior to parking his car to enable his wife to leave the automobile for the purpose of transacting their intended business. It is undisputed that the wife was pregnant, the length of the pregnancy being about six months. The wife, after alighting from the automobile, waited until her husband parked their car, then proceeded to the rear thereof, stepped on a piece of ice or an icy spot and fell. As a result of injuries she was taken to a hospital and there confined for a period of days, during which her child was born alive, but within a short period of time died. She was obliged to return to the hospital for further treatment, and at the time of the trial had not fully recovered from ailments attributable to her injuries.

The parking lot where the accident occurred had two signs posted on the bank building, reserving the same for the use of its 'Customers Only.' The only lighting on the parking lot was such as came through windows of the bank building itself and street lights in the proximity thereof. Plaintiff offered a certified copy of the records of the Weather Bureau Airport Station at Denver, Colorado, which shows the climatic conditions on December 10 and 11, which were admitted without objection. The following is a pertinent part thereof:

                "December 10, 1953
                --------------------------
                Maximum temperature 48 degrees, minimum temperature 22 degrees.  The
                temperature was above freezing at 12:01 a. m. and did not drop below
                freezing until 4:00 p. m. Total precipitation was .23 in. and total snowfall
                was 3.8 in
                "Precipitation type                  Began                    Ended
                --------------------------  ------------------------  -------------------------
                Light snow showers                 4:33 p. m.               6:45 p. m
                Light snow                         6:45 p. m.              11:45 p. m
                Very light snow                   11:45 p. m.         (Continued until
                                                                      12:00 a. m. on
                                                                      Dec. 11)
                "There was 1 inch of snow on the ground at 12:01 a. m. on December 10
                and during the afternoon and evening another 3.8 in. of snow fell.  Total
                on ground at 11:10 p. m. on December 10, was 4 in.
                

About June 27, 1952, the city installed a pump near its southPH 'December 11, 1953

Maximum temperature 28 degrees, minimum temperature 7 degrees. Cloudy with very light snow at 12:01 a. m. but snow ended by 12:50 a. m. and skies cleared rapidly thereafter, with skies nearly clear during daylight hours. Surface winds were southerly during daylight hours, with winds during the morning averaging 10 to 15 miles per hour, and during the afternoon 15 to 20 miles per hour. Precipitation 3'' at Midnight.'

It is undisputed that the weather conditions as reported by the Weather Bureau were substantially the same as those in Aurora.

Mrs. Brent's testimony is the only evidence of the existence of any ice whatever in the parking lot at the time of the accident. She testified that there were no defects in the lot itself other than the ice; the only reason for her fall was slipping on ice. She was not asked, nor did she testify, as to the dimensions of the ice or how or when it came to be on the parking lot. Further, she did not see the ice before slipping and falling, stating, however, that the ice causing her fall was not covered with snow.

The pertinent part of plaintiffs' summary of the argument is as follows:

'The trial court erred in directing a verdict in favor of defendant at the close of plaintiffs' case for the reason that plaintiffs' evidence, given its most favorable construction, established the existence of a dangerous, icy condition in defendant's parking lot, which condition existed for such a period of time prior to plaintiff's fall that could lead reasonable minds to conclude that the defendant, through its officers knew or reasonably should have known of this condition and should have corrected it or warned the plaintiffs of its existence.

'Notice to the defendant of the condition of its parking lot may have been either actual or constructive. It is acknowledged that plaintiffs did not, themselves, give notice to the Bank of the condition of the lot, either before or after the fall. Notice of the condition then, to the Bank, if any, must have been constructive notice. The evidence showed that the snow fall which caused the condition in the lot ended more than eighteen hours before plaintiffs' fall. Plaintiffs urge that whether or not this period of time, during a business day, is sufficient to charge the defendant with notice of the condition is a question of fact to be resolved by the jury, rather than a question of law for the court.' (Italics ours.)

Plaintiffs' counsel prefaces his argument with the statement that the evidence is to be viewed in its best light and is entitled to the most favorable construction that can be given it before the court is entitled to grant a motion for non-suit or directed verdict. Since the decision of this court in Schwenke v. Union Depot & R. Co., 12 Colo. 341, 21 P. 43, that rule has been consistently adhered to in this jurisdiction. See Nelson v. Centennial Cas. Co., 130 Colo. 66, 273 P.2d 121, 123, wherein it is said:

'* * * Where a trial court, from a review of all the evidence adduced, is convinced that there is no basis upon which a verdict in favor of the plaintiff may be supported and that even though the jury should return a verdict in his favor it could not be permitted to stand, it becomes the duty of the trial court, as a matter of law, to direct a verdict in favor of defendant. Where the trial court in so doing exercises sound judicial discretion, its action is entitled to the same presumption of regularity and validity as is accorded to any other type of judgment. That error may have been committed by the trial court is never presumed, but must affirmatively be made to appear. * * *'

Here plaintiffs rely not upon actual but constructive notice on the bank's part in order to establish their claim. It may be said that in order to establish constructive notice on the part of the bank the plaintiffs must clearly and definitely establish that the ice in the parking lot was there long enough, and was of such dangerous character, that the bank, by the exercise of reasonable care, should have discovered and remedied it. It is to be observed that in the first paragraph of plaintiffs' summary of the argument it is stated that plaintiffs' evidence, viewed in its most favorable construction, '* * * established the existence of a dangerous, icy condition in the defendant's parking lot, which condition existed for such a period of time prior to plaintiff's fall that could lead reasonable minds to conclude that the defendant, through its officers, knew or should have known of the condition and should have corrected it or warned plaintiff of its existence.' Further, in the second paragraph of the same summary, they say, 'The evidence showed that the snow fall which caused the condition in the lot ended more than eighteen hours before plaintiff's fall.' There is not a scintilla of evidence to be found in the entire record from which a jury might determine how, when or how long the icy condition of which plaintiffs complain existed. It was incumbent upon plaintiffs to establish by competent evidence that the icy condition of which they complain existed for a time of sufficient duration prior to the accident to enable the jury to determine whether a reasonably prudent man, or in this instance the bank, knew or ought to have known of the condition and to have taken such measures as were necessary to remedy it for the...

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