City and County of Denver v. Stutzman, 13246.

Docket Nº13246.
Citation95 Colo. 165, 33 P.2d 1071
Case DateJune 12, 1934
CourtSupreme Court of Colorado

33 P.2d 1071

95 Colo. 165

CITY AND COUNTY OF DENVER
v.

STUTZMAN.

No. 13246.

Supreme Court of Colorado

June 12, 1934


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.

[95 Colo. 166] BOUCK, Justice.

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 [33 P.2d 1072] 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 [95 Colo. 167] ordered. On the other hand, if the work was not so done, but...

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5 practice notes
  • Davies v. Land O'Lakes Racing Association, No. 36410
    • United States
    • Supreme Court of Minnesota (US)
    • April 1, 1955
    ...generally shallow [244 MINN 258] 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 the bottom of ......
  • Robinson v. City of Bartlesville Bd. of Educ., No. 62551
    • United States
    • Supreme Court of Oklahoma
    • May 14, 1985
    ...43 Ill.2d 177, 251 N.E.2d 227 (1969); Mayor & C. of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978); City and County of Denver, 95 Colo. 165, 33 P.2d 1071 11 Larson v. Independent School Dist. No. 314, 289 N.W.2d 112, (Minn.1979), 18 McQuillen, supra Note 5 at 245. 12 314 F.2d 98 (......
  • Denver Tramway Corp. v. Callahan, 15101.
    • United States
    • Colorado Supreme Court of Colorado
    • June 19, 1944
    ...as constituting error, because the affirmance of the judgment depends on whether the case of City and County of Denver v. Stutzman, 95 Colo. 165, 33 P.2d 1071, 1072, is controlling. The trial court very frankly [150 P.2d 799] stated that if it were not for that case, he would have granted t......
  • Fowler Real Estate Co., Inc. v. Ranke, No. C--251
    • United States
    • Colorado Supreme Court of Colorado
    • March 19, 1973
    ...P.2d 530; Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201; Swanson v. Martin, 120 Colo. 361, 209 P.2d 917. See generally Denver v. Stutzman, 95 Colo. 165, 33 P.2d Examination of the record reveals several facts which would support a jury's determination that the deceased was contributorily ne......
  • Request a trial to view additional results
5 cases
  • Davies v. Land O'Lakes Racing Association, No. 36410
    • United States
    • Supreme Court of Minnesota (US)
    • April 1, 1955
    ...generally shallow [244 MINN 258] 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 the bottom of ......
  • Robinson v. City of Bartlesville Bd. of Educ., No. 62551
    • United States
    • Supreme Court of Oklahoma
    • May 14, 1985
    ...43 Ill.2d 177, 251 N.E.2d 227 (1969); Mayor & C. of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978); City and County of Denver, 95 Colo. 165, 33 P.2d 1071 11 Larson v. Independent School Dist. No. 314, 289 N.W.2d 112, (Minn.1979), 18 McQuillen, supra Note 5 at 245. 12 314 F.2d 98 (......
  • Denver Tramway Corp. v. Callahan, 15101.
    • United States
    • Colorado Supreme Court of Colorado
    • June 19, 1944
    ...as constituting error, because the affirmance of the judgment depends on whether the case of City and County of Denver v. Stutzman, 95 Colo. 165, 33 P.2d 1071, 1072, is controlling. The trial court very frankly [150 P.2d 799] stated that if it were not for that case, he would have granted t......
  • Fowler Real Estate Co., Inc. v. Ranke, No. C--251
    • United States
    • Colorado Supreme Court of Colorado
    • March 19, 1973
    ...P.2d 530; Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201; Swanson v. Martin, 120 Colo. 361, 209 P.2d 917. See generally Denver v. Stutzman, 95 Colo. 165, 33 P.2d Examination of the record reveals several facts which would support a jury's determination that the deceased was contributorily ne......
  • Request a trial to view additional results

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