City of Colorado Springs v. Colburn
| Decision Date | 20 June 1938 |
| Docket Number | 14143. |
| Citation | 81 P.2d 397,102 Colo. 483 |
| Parties | CITY OF COLORADO SPRINGS v. COLBURN. |
| Court | Colorado Supreme Court |
Rehearing Denied July 11, 1938.
In Department.
Error to District Court, El Paso County; ohn M. Meikle, Judge.
Action by Lizzie A. Colburn against the City of Colorado Springs for injuries caused by a fall on the floor of the business office of defendant's light and water plant. Judgment for plaintiff, and defendant brings error.
Affirmed.
Ben S. Wendelken and John A. Carruthers, both of Colorado Springs, and Edward L. Wood and Norman W. Baker both of Denver, for plaintiff in error.
Clyde L. Starrett, Thomas I. Purcell, and George M. Gibson, all of Colorado Springs, for defendant in error.
Action involving alleged negligence of the city of Colorado Springs in maintaining the floor of the business office of its light plant in such slippery condition that plaintiff, and elderly woman, fell thereon and sustained serious injury. On a favorable verdict judgment entered for her in the sum of $1,975. Sufficiently stated, it is contended by plaintiff in error, defendant below: (1) That the complaint does not state a cause of action; (2) that notice to the city of the injury, required by '35 C.S.A. c. 163, § 231 (C.L.1921, § 9157), was not given, hence the action must fail; (3) that the verdict did not have sufficient evidentiary support.
The complaint sought to set forth two causes of action, but the trial was upon the one predicated on the theory that the notice required by the statute was excused by virtue of plaintiff's physical and mental incapacity to give it.
The city of Colorado Springs owns and operates its electric and water utilities, and maintains an office where patrons may come and pay their light and water bills and transact other business pertinent to such activities. July 3, 1934 plaintiff went to the office of the city to pay a water bill owing it. The office floor was of terrazo, a floor material composed of marble aggregates and cement mortar ground down and highly polished with a petroleum substance in the form of wax. It had been so highly polished less than a month prior to the accident. The main entrance to the office is through a large door, from which there is a strip of rubber matting extending to the counter where payments are received. On either side of this door there is a smaller one, but no matting extends from them to the counter. Plaintiff entered through one of the smaller doors and had walked about three-fourths of the way toward the counter, when, as she testified, 'I turned to go over to that counter and my feet twisted and I went over on my side and I shot over like a shot from a gun.' She fell on her right hip, which was broken. She was in the hospital ten weeks and then returned home.
No notice was given the city until April 1, 1936. There is no question as to the seriousness of her injuries, nor is the judgment challenged as to amount; but as to the claim of her inability to give notice, there is challenge. Hospital and doctor bills amounted to $1,555.25. She sought recover in the sum of $15,000, but the award was not greatly in excess of her actual outlay.
1. That part of the complaint charging negligence was as follows: 'After plaintiff had entered into the main office room of said building, and, solely on account of the negligent operation, care and maintenance of said building, by the abovenamed defendant, through its agents and employees, in this, to wit: that the main tiled floor in said building was so highly polished with wax or other substance, which caused plaintiff to slip in and upon said tiled floor, breaking her right hip joint and hip bones, through no fault of said plaintiff.' It will be noted that it is not the act of constructing the floor of terrazo that is alleged to be negligent, or that the same was polished, but that the accident was caused by its being 'so highly polished.' We think the allegations of negligence meet the requirements of the rule. McGonigle v. Kane, 20 Colo. 292, 38 P. 367; Adams Express Co. v. Aldridge, 20 Colo.App. 74, 77 P. 6; Denver & R. G. R. R. Co. v. Vitello, 21 Colo.App. 51, 121 P. 112; Gotch v. K. & B. Packing & Provision Co., 93 Colo. 276, 25 P.2d 719, 89 A.L.R. 753.
2. While...
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