City and County of Denver v. Stutzman
| Citation | 95 Colo. 165,33 P.2d 1071 |
| Decision Date | 12 June 1934 |
| Docket Number | 13246. |
| Parties | CITY AND COUNTY OF DENVER v. STUTZMAN. |
| Court | Supreme Court of Colorado |
In Department.
Error to District Court, City and County of Denver; Henley A Calvert, Judge.
Action by Laura Stutzman against the City and County of Denver, a municipal corporation. To review a judgment for plaintiff defendant brings error.
Affirmed.
James D. Parriott, Frederick P. Cranston, and Karl C. Brauns, all of Denver, for plaintiff in error.
James A. Marsh and Jean Stauffer Perkins, both of Denver, for defendant in error.
The defendant in error, Mrs. Stutzman, plaintiff below, recovered a judgment for $1,128.50 against the City and County of Denver (hereinafter called the city) for her daughter's death, alleged to be due to the city's negligence. The city seeks reversal.
On June 28, 1931, Nellie Dietrich, the daughter, aged fifteen accompanied by other girls, was wading and playing in what is commonly called the Platte river, the bed of which at that point in South Denver belonged to the city. She and another girl walked toward the bank when they stepped into a hole and sank. The companion was rescued, but Nellie was drowned. The hole was an excavation under the surface of the stream. Its surface dimensions were between 25 and 30 feet in length and between 20 and 25 feet in width, and the depth was perhaps 12 feet. The cavity had been made by a dredge or drag line operated by the city.
Boys and girls were in the habit of similarly wading and playing in the stream, which, though generally shallow, was in some places knee deep. There were no fences or other inclosures along the river, at or near that point, to warn of danger.
Counsel for the city deny its liability. They announce, as decisive of the case, these propositions: (1) That the city had no actual or constructive knowledge of the alleged dangerous condition; (2) that it was not the city's duty to erect a fence, or post signs, or give other warning of such condition; (3) that the city did give warning; (4) that the work done by the dredge was in the exercise of a governmental function; (5) that Nellie, the drowned child, was guilty of contributory negligence; and (6) that her mother, the plaintiff, was guilty of contributory negligence.
If proposition 4 is sound, that is, if the city's excavation was done in the exercise of a governmental function, then the judgment here must be reversed and a dismissal ordered. On the other hand, if the work was not so done, but was done in the city's private or proprietary capacity, then we must consider propositions 1, 2, 3, 5, and 6, which undertake to negative the charge of negligence made against the city, and involve the incidental defenses.
Plaintiff's counsel contend that no governmental function is involved, and they invoke the principle of Windsor R. & C. Co. v. Smith, 92 Colo. 464, 21 P.2d 1116, as evolved on the four occasions when it has been Before us, therein mentioned. Counsel for the city contend that it is inapplicable, and say in effect that the Windsor Company's liability was there based upon its permitting the continuance of a trap after having actual knowledge of the danger, and that the two cases are radically different.
Our first inquiry, then, is whether the excavation was in pursuance of a governmental function, as claimed in proposition 4.
Other states than Colorado, notably Kansas, have held that making public improvements of various kinds is a governmental function. This court, however, has repeatedly held that a municipality is liable for damage resulting, for instance from its negligence in the planning, construction, or maintenance of sewers and sewage systems. We cannot find any logical distinction between these activities and the dredging alleged here to have been for the...
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...caused formation of a pond generally shallow but containing a dangerous hole where excavations had been made); City & County of Denver v. Stutzman, 95 Colo. 165, 33 P.2d 1071 (child wading in Platte river, generally shallow but in some places knee deep, stepped into large hold dredged in th......
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