City and County of Denver v. Hudson

• Decision Date: 23 May 1932
• Docket Number: 12664.
• Citation: City and County of Denver v. Hudson, 91 Colo. 87, 12 P.2d 344 (Colo. 1932)
• Parties: CITY AND COUNTY OF DENVER v. HUDSON.
• Court: Colorado Supreme Court

12 P.2d 344

91 Colo. 87

CITY AND COUNTY OF DENVER v. HUDSON.

No. 12664.

Supreme Court of Colorado, En Banc.

May 23, 1932

Error to District Court, City and County of Denver; J. C Starkweather, Judge.

Action by Louie B. Hudson against the City and County of Denver.Judgment for plaintiff, and defendant brings error.

Affirmed.

Thomas H. Gibson, B. F. Reed, and Karl C. Brauns, all of Denver, for plaintiff in error.

Rees D Rees and C. E. Wampler, both of Denver, for defendant in error.

CAMPBELL, J.

In this action by the plaintiff, Hudson, against the city and county of Denver, the object of which is the recovery of money damages for injuries which she sustained by falling on an icy and slippery pavement of the city, the jury awarded her the sum of $1,650, which the trial court, after denying the defendant's motion for a new trial, embodied in its judgment which the defendant herein seeks to have set aside.Though the City has made several assignments of error, the sole proposition upon which it relies for a reversal is that plaintiff's own case, as made by the evidence which she produced, shows conclusively, as matter of law, that she herself was guilty of contributory negligence in going upon an obviously dangerous sidewalk, having, at the time knowledge of its dangerous condition, and also knowledge of one or more other safe and convenient ways by which the dangerous condition of the walk, on which she slipped and fell, could have been avoided, and that her own failure to use the safe way or ways of which she knew, and her choice of a way she knew to be unsafe, constituted the sole and proximate cause of her injuries.

The courts of this country in their written opinions and text-writers in their treatises have not infrequently adverted to the fact that it is difficult, if not impossible altogether to reconcile or harmonize the decisions of different courts, or even decisions of the same court, upon the question here presented.However, we think that the opinions hereinafter adverted to are in reality not inconsistent when considered in the light of the different state of facts in the different cases.If the undisputed evidence shows that the plaintiff had knowledge of the unsafe condition of the sidewalk in question, and that the adjoining street or sidewalk afforded a safe and suitable way for travel, plaintiff might be guilty of contributory negligence as matter of law.The plaintiff, according to her own testimony, knew that during the winter season in question there had been no attempt either by the city or the owner of the adjoining property to remove from the sidewalk the snow which had fallen upon it from time to time.Snow had melted and formed ice upon this walk, and, upon the night of the day next preceding the day that plaintiff was walking over the same and was injured, snow to the depth of seversl inches had fallen upon the snow and ice that were already upon this walk.The mere fact that walking over this sidewalk was attended with danger did not, as matter of law, make it contributory negligence on the part of the plaintiff to travel over it.

Although it may be true, as the city contends, that it was apparent to any careful observer that it was dangerous for one to travel on this sidewalk in its then condition, it is also true, at least...