City of Denver v. Barron

• Decision Date: 11 March 1895
• Citation: 39 P. 989,6 Colo.App. 72
• Parties: CITY OF DENVER v. BARRON.
• Court: Colorado Court of Appeals

39 P. 989

6 Colo.App. 72

CITY OF DENVER v. BARRON.

Court of Appeals of Colorado

March 11, 1895

Appeal from district court, Arapahoe county.

Action by Lulie Barron against the city of Denver. From a judgment for plaintiff, defendant appeals. Reversed.

Mrs. Barron, the appellee, got hurt on Thirty-Fourth avenue, in the city of Denver, on the 1st of March, 1892. It appears from the proof that prior to that time a sewer had been laid along the alley between Franklin and Humboldt streets where they cross Thirty-Fourth avenue and had been continued in its course probably across the avenue. On the evening of the day in question, and a little after dark, or thereabouts, Mrs. Barron, with her two children, was driving along the avenue towards home. When she got to the point where the sewer crossed the avenue, the horse suddenly plunged into a hole, or the dirt gave way with him, and in his fright and struggles to get out of the difficulty Mrs. Barron was thrown over the dashboard, which broke under her weight. Her back struck the wheel, whereby she was very much frightened, and quite severely hurt. The horse started to run, but evidently was not very violent in his efforts, because he was soon caught by the motorman of a passing car, and the horse and phaeton were put in charge of a passer-by, and sent home. Mrs. Barron was able to be up for a day or so, when she was compelled to take to her bed, and was under the care of a physician for some days. All of her injuries were not very clearly defined, though one of her principal contentions which the evidence tended to support was that she was enceinte, and within three or four days of the time had a miscarriage. These facts were proven on the trial over the objection of the counsel for the city. To protect her rights in the premises as required by the charter, she served a notice on the mayor in the following language "You will please take notice that on Tuesday, the 1st day of March, A.D.1892, Mrs. Lulie Barron, the wife of W.W Barron, residing at 3444 Gilpin street, in the city of Denver, was severely injured by reason of a defect in Thirty-Fourth avenue at the point where the sewer recently laid by the city crossed said avenue, between Franklin and Humboldt streets, the said injury having occurred in the following manner, so far as we have been able to ascertain: Mrs. Barron was driving along said avenue with a horse and phaeton, when, directly over the place where the sewer had been laid, the ground gave way beneath the horse, and he sank in several feet. He plunged out, and started to run, and the phaeton, by reason of the sinking and the plunging of the horse, was nearly upset, and Mrs. Barron thrown over the dashboard and against the front wheel. She clung to the lines, and the horse was stopped within half a block. Her two children were in the phaeton, but, aside from a severe fright, were uninjured. Mrs. Barron was severely injured internally, was in bed for a period of ten days, and is now in the care of a physician, and will probably never entirely recover from the effects of her fright and injury. The city had notice and ample knowledge of the defective and wretched condition in which the ground over the sewer had been left in that locality, and took no steps to remedy it. Mrs. Barron proposes to hold the city responsible for whatever damages she has sustained by reason of the above injuries." During the progress of the trial, objection was made to the introduction of much of the testimony on the ground of the insufficiency of this notice. The charter provision is found in section 4, art. 13, and is: "Before the city of Denver shall be liable for damages to any person injured upon any of the streets, avenues, alleys or sidewalks of the city, the person so injured, or some one in his behalf, shall give the mayor or city council notice in writing of such injury within thirty (30) days after the same have been received, stating in such notice when, where and how the injury occurred and the extent thereof."

A.B. Seaman and Louis K. Pratt, for appellant.

Thomas, Bryant & Lee (W.P. Hillhouse, of counsel), for appellee.

BISSELL, P.J. (after stating the facts).

The arguments and the record suggest but two matters to be determined. The first relates to the contents of the notice which was served on the mayor, and the second springs from the contention that there is no necessity for a notice at all, because of the unconstitutionality of the legislation which provides for it. Disposing of these matters in their inverse order, we will first consider the alleged unconstitutionality of the act of the legislature. Our discussion will consist of nothing but the simple suggestion of the matters on which we rest our opinion. If the question be in any wise involved in the litigation, the appellee can procure a review of our judgment by taking her case to the supreme court, which is the final arbiter of all constitutional questions. There would seem to be no room for discussion. Section 25 of article 5 of our constitution which is said to be infringed by that provision of the charter of Denver regarding notices, has been frequently construed by the supreme court, and every question and argument suggested by counsel seem to be wholly disposed of by those decisions. It is a fact familiar to all lawyers in the state that the original charter which incorporated the inhabitants of Denver was passed by the territorial legislature of 1861. The present charter is but the crystalized form which it has assumed under the various enactments of subsequent legislatures. The first charter in terms provided that the inhabitants should be an incorporation which might sue and be sued and plead and be impleaded in all courts of law and equity. That original provision remained in all the charters down to the last, and is in substance found therein. The appellee insists, under the authority of City of Denver v. Dunsmore, 7 Colo. 328, 3 P. 705, that the right to sue the city was a part of the common law of this jurisdiction, and was not derived from the permissive legislation which chartered the city. This question was not set at rest by that opinion. What that court decided was that, by virtue of the principles of the common law, which were a part of the law of the state, a municipality would be responsible for its torts committed in the negligent performance of its duty in caring for the streets. Although the case undoubtedly held that a city would be liable for negligence in the exercise of its powers over the highways, the court did not undertake to decide, nor do we, whether legislation providing a remedy was necessary to entitle an injured party to secure redress for such injuries. It was wholly unimportant, because the very act of incorporation provided that the city might both sue and be sued. The court assumed, as we do, that the only question for consideration was whether specific legislation was necessary to make the city liable for such torts. It is conceded that the charter provision requiring notice was added to the organic law of the municipality by an amendment passed long after the grant of the original charter, which preceded the adoption of the constitution. It has been held that the...