City of Boulder v. Burns

• Decision Date: 22 July 1957
• Docket Number: No. 18060,18060
• Citation: City of Boulder v. Burns, 313 P.2d 712, 135 Colo. 561 (Colo. 1957)
• Parties: CITY OF BOULDER, a municipal corporation, Plaintiff in Error, v. Maren N. BURNS and Western Industries, Inc., a Colorado corporation, and Western Industries, Inc., doing business under the assumed name and style of Boulder Trailer Court, Inc., Defendants in Error.
• Court: Colorado Supreme Court

Page 712

313 P.2d 712

135 Colo. 561

CITY OF BOULDER, a municipal corporation, Plaintiff in Error, v.Maren N. BURNS and Western Industries, Inc., a Colorado corporation, and Western Industries, Inc., doing business under the assumed name and style of Boulder Trailer Court, Inc.Defendants in Error.

No. 18060.

Supreme Court of Colorado, En Banc.

July 22, 1957.

Ryan, Sayre & Martin, Boulder, for plaintiff in error.

Rinn & Connell, Boulder, for defendants in error.

HALL, Justice.

Defendant in error, to whom we shall refer as plaintiff, brought this action against the City of Boulder, to recover damages for personal injuries suffered January 18, 1955, when she fell into a water meter box pit installed and maintained by the city on the east side of the 1500 block of 24th Street, Boulder, Colorado.The city answered denying negligence; alleged contributory negligence on the part of plaintiff, unavoidable accident, and further that the sole cause of plaintiff's injuries was the negligence of defendant in error Western Industries, Inc.The city thereupon filed a third-party complaint naming as third party defendantWestern Industries, Inc., in which it was alleged that the meter box in question was installed by the city to supply water service to the premises of Western Industries, Inc., which company agreed to be answerable to the city for all damages resulting from the location or installation of the meter box.

Trial was to a jury which found in favor of the plaintiff and awarded her damages against the city.A separate verdict was returned in favor of Western Industries, Inc., on the city's third party complaint.

The writ of error here has been dismissed as to Western Industries, Inc., and there remains only the question of the correctness of the verdict and judgment in favor of plaintiff.

The evidence clearly establishes that the city installed, maintained and had exclusive control over the meter installation in question.This meter was located outside the city limits on Boulder county property under an undisclosed arrangement with Boulder county as to the roadway which the parties call the 24th Street right of way.There is no sidewalk on either side of 24th Street at the point of this installation, although pedestrians used walkways on each side of the street and adjacent to the portion of the street used for vehicular travel.The meter box in question was about in line with that part of the street used by pedestrians and in front of the vehicular entrance to the trailer court of Western Industries, Inc.The meter was set in a hole, the walls of which had been surrounded by brick or concrete and was covered by a lid consisting of a sheet of iron 24 by 30 inches and weighing about 50 pounds, and intended to rest on ledges or shelves on the sides and ends of the box and to be flush with the top of the box.The lid was not fastened in any manner to the box and had a hand hole in one end so that it could be removed.The evidence established without contradiction that on numerous occasions the lid had been knocked from its proper position on the box by cars passing over it.At the time of plaintiff's injuries she was walking from her home on an errand and was proceeding in a northerly direction on the east side of 24th Street, which at this point, as we have mentioned, is a county highway.It was snowing at the time and the ground and this box were covered by snow and were not visible.Plaintiff had frequently walked along this same course and knew of the presence and approximate location of the box; she stepped upon the lid which 'flipped up' causing her to fall and receive the injuries for which the jury awarded her damages.

The city seeks reversal on five grounds, claiming:

1.That plaintiff was guilty of negligence as a matter of law in walking on the dangerous east side of the street where she knew this box was located when she could have walked on the west side where there were no boxes.

The evidence makes it abundantly clear that plaintiff was walking where she and others had a right to walk.There is no evidence that plaintiff knew or had any reason to believe that the box was dangerous or that by stepping on the lid it would flip up and drop her into a hole.Cases cited by plaintiff in support of this ground are not in point.In the cases cited the party injured knew of the dangers resulting in the injuries and knowingly chose a dangerous way in preference to a safe way.Under the circumstances of the case before us, had there been evidence that plaintiff knew of the dangerous condition of the box, the question of her negligence still would be a question to be determined by the jury.

In City and County of Denver v. Hudson, 91 Colo. 87, 12 P.2d 344, we said:

'If the undisputed evidence shows that the plaintiff had knowledge of the unsafe condition of the sidewalk in question,...