City of Denver v. Johnson

• Decision Date: 12 October 1896
• Citation: 8 Colo.App. 384,46 P. 621
• Court: Colorado Court of Appeals
• Parties: CITY OF DENVER v. JOHNSON.

46 P. 621

8 Colo.App. 384

CITY OF DENVER v. JOHNSON.

Court of Appeals of Colorado

October 12, 1896

Appeal from district court, Arapahoe county.

Action by J.D. Johnson against the city of Denver for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Appellee brought suit against the city for damages for injuries received by the alleged negligence of the city to keep the streets in repair. The allegations of the complaint charging the negligence and stating the injury are as follows "Plaintiff says Fifteenth street in said city, between the Platte river and Larimer street, is now, and has been for more than one year last past, a public street and highway over upon which there is a great amount of travel by the public. Plaintiff says that said defendant corporation, disregarding its duty, as aforesaid, to keep said public street in repair and in safe condition, and particularly that portion of said Fifteenth street aforesaid negligently, carelessly, and wrongfully permitted an excavation three feet deep and more than three feet in diameter to be and remain in said Fifteenth street between the points aforesaid, and about opposite No. 2134 on said street, on or about February 9, 1894, uncovered and unguarded, and without barricade or obstruction about it to prevent persons or animals from falling into the same; that said excavation was not caused by, nor was it the result of, the negligence of some person other than an employé of said defendant city; that the plaintiff, on the day aforesaid, was lawfully traveling on said Fifteenth street between the points aforesaid, riding in a wagon drawn by two horses, having no knowledge of said excavation, and not apprehending danger, and when about opposite the point aforesaid was suddenly precipitated into the excavation aforesaid, and was bodily injured thereby, was bruised and made lame and sick and sore thereby, and without any fault or carelessness or negligence or blame on the part of the plaintiff, but he avers that the said injuries were caused wholly by reason of the said negligence of the defendant as aforesaid. Plaintiff says that by reason of the said negligence of the defendant he was injured as aforesaid, and has been rendered lame and sick and sore thereby, and unable to work for the space of one month, and has been compelled to expend twenty-five dollars for medicines, medical treatment, and nursing in consequence thereof, whereas he was well and strong and able to work before being injured as aforesaid; that by reason of all the matters herein stated he has been injured and damaged in the sum of two thousand dollars." Answer denying the existence of an excavation as stated in the complaint, and all the material allegations of the complaint. Further answering, said: "That at the said point on Fifteenth street there is a ditch or gutter at the side thereof of about the depth given by plaintiff, which said ditch or gutter is described in the complaint as an excavation, but that such ditch or gutter is necessarily there, and is used to carry off the accumulation of surface water from said street into the Platte river; that ample space is left between said ditch or gutter and the opposite side of the street for the passage of vehicles and teams, and that said ditch is not dangerous to travelers using said street; that at the time and place plaintiff claims to have been injured the buggy or wagon he was riding in was run into by an electric car belonging to the Consolidated Tramway Company, whose lines pass through said street, and by said No. 2134, and whatever injuries he received were caused wholly by such collision; that said buggy or wagon in which plaintiff was riding did not run into said gutter at the time and place described in the complaint, nor was it thrown therein when struck by said electric car." A replication was filed, denying the allegations of the second answer. A trial was had to the court without a jury, resulting in a judgment for the plaintiff for $500, from which an appeal was prosecuted to this court.

F.A. Williams and G.Q. Richmond, for appellant.

W.W. Pardee and Doud & Towler, for appellee.

REED P.J. (after stating the facts).

The principal facts are clearly established by the evidence without serious conflict. Appellee, driving a two-horse grocery delivery wagon, crossed the bridge from North Denver and was driving east on Fifteenth street, on the south side. There is a ditch or drain on that side of the street for carrying water into the river. For about two blocks from the river the ditch is covered, then for a space it is open and unprotected. At this point (the open ditch) the accident occurred. The sides of the ditch slope quite abruptly to the bottom. The opening was 2 feet and 3 inches in depth, and the ditch 13 feet wide on the surface. There are two tramway car tracks in the street. From the ditch to track upon that side was a driveway, much used, 9 feet in width; then occurs the car track, some 4 feet in width; then a central drive, some 20 feet in width; then the other track; then a narrow driveway north of the track. Appellee and Hamilton were in the wagon, the former driving, the team trotting. A tramway car going in the same direction was not observed until close upon them. Appellee, to avoid it, pulled his team to the right, and the off horse went over the bank into the open ditch, was frightened, jumped or plunged to get out, and in so doing placed the wagon in such position that the hind wheel was struck by the car, wagon and team thrown into the ditch, appellee thrown out under the horses, and received his injuries. As to the circumstances and cause of the collision the evidence was conflicting, as it always is in that class of cases, each party testifying to exonerate itself from the charge of negligence in causing it. But in this case, as the suit is not against the tramway company, but the city, and the only question being whether the leaving the street and ditch in that condition was negligence for which the city could be held liable, by whose fault the collision occurred becomes unimportant. Although, except for the collision, the accident could not have occurred, it is apparent from the evidence that, except for the ditch and obstruction, the collision would not have occurred. Nearly the entire argument of appellant is devoted to the contention that the accident was caused by the tramway car collision. I quote the language: "The ditch or gutter did not frighten the horses. The ditch or gutter was not the cause of the plaintiff being thrown out of the wagon. On the contrary, the proximate cause was the rapidly approaching car striking the rear end of the vehicle." In support of the position that the excavation was not the "proximate" cause, Jones, Neg.Mun.Corp. §§ 9, 193, 195, is cited. In section 9 it is said: "It is often said that the negligence must be the 'proximate cause' of the damage in order to create liability. *** But it is to be noticed that it is not necessary that the negligent act should be the last cause, the primary cause, or the sole cause. Indeed, the only essential matter is that, in view of...