City of Denver v. Baldasari

• Decision Date: 14 May 1900
• Citation: 61 P. 190,15 Colo.App. 157
• Parties: CITY OF DENVER v. BALDASARI.
• Court: Colorado Court of Appeals

61 P. 190

15 Colo.App. 157

CITY OF DENVER v. BALDASARI.

Court of Appeals of Colorado

May 14, 1900

Appeal from district court, Arapahoe county.

Action by Alberto Baldasari against the city of Denver for damages for injuries received while crossing a viaduct. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

George C. Norris and Emerson J. Short, for appellant.

C.M Kendall, T.E. Waters, and Win Wylie, for appellee.

BISSELL P.J.

The failure of the city of Denver to maintain in a reasonably safe condition for the purposes of public travel the Sixteenth Street Viaduct occasioned the accident which is the subject-matter of the present suit. There is no controversy respecting the character of the street, and it is conceded that the viaduct was lawfully constructed by the city, and maintained as a part of the highway. It ran over the Platte, and over the tracks with which the bottoms bordering on that river are filled. This, with others furnished, practically, the only safe mode of crossing between Denver and Highlands, and over the great network of tracks. The viaduct is several hundred feet long, resting on pillars and a framework of wood and iron; and the roadway was made of two layers of planking of varying thickness, laid on stringers. Sixteenth street is one of the most widely-traveled streets in the city; and, according to the record and our own observation, this viaduct is one of the principal traveled ways between these two parts of Denver. In May, 1896, Baldasari, who was a peddler, was driving a single horse and wagon over the way to the city, in the transaction of his ordinary business. He was rightfully there, and properly pursuing his even way. At some point on the viaduct which cannot be distinctly designated by words, his horse stepped into a hole in the viaduct, caught one of his hind feet, lunged as a horse naturally would when his foot was caught, jumped towards the sidewalk, overturned the buggy threw Baldasari out, started to run, dragged him a short way, and he was thereby severely hurt. It would be idle to state the nature of his injuries or their extent. It is enough to say they were regularly and sufficiently alleged, and he laid his ad damnum at $10,100. The case went to trial, was submitted to a jury, and he had a verdict for $900. Judgment was entered, and therefrom the city prosecutes an appeal. The case was not argued by the counsel who tried it, nor by those who prepared the briefs. Because of various political changes, different counsel represent the city; and we are quite at liberty to disregard the major portion of the printed argument, and simply respond to the suggestions made by the present representatives on the oral argument. They somewhat follow along the same lines, but the greater weight was put by the counsel on certain propositions which we shall consider. The case is so signally free from error that we need do little more than dispose of one or two propositions, to determine the whole case.

The principal stress is laid on the point that the complaint fails to state a cause of action, in that it did not directly, or otherwise than by inference, allege that the accident resulted from the catching of the horse's foot in a hole in the viaduct. The city's representative has built up a strong argument on several cases which hold it necessary to directly charge that the injury came from an accident which was occasioned by the defect complained of. We are quite ready to concede this to be the law and the rule of pleading, and, had the complaint been demurred to, it would possibly have been error not to sustain the demurrer and compel an amendment. However this may be, we do not believe the complaint is so radically defective that we are at liberty to regard it as wholly failing to state a cause of action, and apply the rule which permits this suggestion for the first time in the appellate tribunal. The case was tried without objection, on issue joined, and the evidence proving the accident was introduced without objection; and since the plaintiff was permitted to prove his case, and we can see that what was charged in the complaint was really the accident which was established by his proof, we do not believe the case should be reversed because of the inartificiality of the pleading. The pleading was not wholly bad, nor did it entirely fail to state a cause of action. It states enough to permit the inference that the accident resulted from a defect in the viaduct, and when, without objection, this was followed by proof on which a verdict was rendered, we are not at liberty to disturb the judgment. the next proposition on...