City and County of Denver v. Forster, 12301.

• Decision Date: 29 June 1931
• Docket Number: 12301.
• Citation: 1 P.2d 922,89 Colo. 246
• Parties: CITY AND COUNTY OF DENVER v. FORSTER.
• Court: Colorado Supreme Court

1 P.2d 922

89 Colo. 246

CITY AND COUNTY OF DENVER v. FORSTER.

No. 12301.

Supreme Court of Colorado, En Banc.

June 29, 1931

Error to District Court, City and County of Denver; Francis E Bouck, Judge.

Action by Joseph Forster, administrator of the estate of Catherine Forster, deceased, against City and County of Denver. To review a judgment for plaintiff, defendant brings error.

Reversed and remanded, with directions.

Thomas H. Gibson, George Hetherington, and George O. Bakke, all of Denver, for plaintiff in error.

F. T Johnson, of Denver, for defendant in error.

HILLIARD J.

The plaintiff in error, defendant below, brings error to review a judgment of $3,000 entered in favor of the defendant in error's intestate. The action was for damages resulting from alleged negligence on the part of the defendant in maintaining its streets, and particularly that part of Sixteenth street at the intersection of Court place.

The complaint alleged that on March 17, 1927, the plaintiff alighted from a street car at the intersection mentioned, and immediately tripped upon a certain oval shaped block of iron or steel placed by the defendant in the open and traveled part of Sixteenth street, which was otherwise smooth and level, and thereby sustained a fracture of the cervical neck of the left femur. The defendant admits, in its answer, that shortly Before the time of the injury to the plaintiff it caused oval blocks of the kind described in the complaint to be placed at the intersection in question, but denies it was negligent in so doing, claiming that its manager of safety and excise installed the blocks, by it called markers, to designate a safety zone for street car patrons, under powers alleged to be lodged in that official by its Ordinance No 85, Series of 1926, and that the placing of said markers was a part of the plan adopted by said manager pursuant to that ordinance; that such markers are of the kind used to designate safety zones in Denver, and are of the kind commonly used for that purpose in other cities of the United States. It also pleaded contributory negligence.

In the view we take of the matter it is unnecessary to determine the question of negligence upon either side, or to notice any of the assignments of error save those going to the question of the capacity in which the defendant was acting in placing the markers in its streets.

It appears that section 68 of the ordinance involved gives power to the manager of safety and excise to create safety zones for the use of pedestrians and where they shall have the right of way, and section 16(a) authorizes him to direct control, restrict, and regulate, in the interest of public safety and convenience, the movements of pedestrians and vehicles upon the streets. If the manager of safety was acting in...