City of Denver v. Aaron

• Decision Date: 11 March 1895
• Citation: 6 Colo.App. 232,40 P. 587
• Parties: CITY OF DENVER v. AARON. [1]
• Court: Colorado Court of Appeals

40 P. 587

6 Colo.App. 232

CITY OF DENVER v. AARON. ^[1]

Court of Appeals of Colorado

March 11, 1895

Appeal from district court, Arapahoe county.

Action by Mendall Aaron against the city of Denver for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

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

Sullivan & May and Charles O. Patton, for appellee.

THOMSON J.

Mendall Aaron brought this action against the city of Denver, a municipal corporation, to recover damages for injuries received by him by reason of the dangerous condition in which an excavation in one of its streets, made by the Denver Water Company, was suffered to remain. The facts in evidence were undisputed, and the court directed a verdict in plaintiff's favor for such amount as, in the opinion of the jury from the evidence, would compensate him for his injuries. The instructions upon the question of damages are unobjectionable. They correctly stated the law applicable to the facts, and the decision of the case here turns upon the action of the court in directing a verdict. The facts are as follows: On the 10th day of April, 1890, an ordinance was adopted by the city council of the defendant granting to the Denver Water Company the right and privilege of laying down, continuing, and maintaining water pipes valves, hydrants, and apparatus for the conveyance and distribution of water in, upon, along, and through certain of the streets of the city, including the street upon which the injuries were received. Section 3 of this ordinance reads as follows: "Sec. 3. The Denver Water Company, its successors and assigns, shall at all times, save and hold the city harmless of and from all loss, cost or damage to person or property, occasioned by any negligence in the excavation of any street, lane, alley or public place, within the city made by it in the laying of any of its mains, pipes, valves or other apparatus. And whenever the said the Denver Water Company, its successors or assigns, shall open or cause to be opened any street, lane, alley or other public place for laying any mains, pipe, valve or hydrant, or other apparatus, it shall forthwith, restore the same to as good condition, as the same was in before any such opening, at its own expense, and in case of any failure so to do, for a space of twenty-four hours after the laying of such main, pipe, hydrant, valve or other apparatus shall be completed, notice shall be given to the said company so to do, by the officer for the time being having charge of the streets in said city; and in case of default for twenty-four hours after such notice, the said street may be put in such order by the said city, but at the expense of the said company." The excavation in question was made in pursuance of the grant contained in the ordinance, but, although it was filled to the level of the surface of the street, and seemed to be safe and in good condition, the filling was loosely thrown in, so that wheels of vehicles upon striking it would immediately sink; thus leaving the place in a dangerous condition, and all the more dangerous because it was apparently safe. On the 18th day of June, 1891, some days after the filling was...