City of Denver v. Soloman

• Decision Date: 14 November 1892
• Citation: City of Denver v. Soloman, 2 Colo.App. 534, 31 P. 507 (Colo. App. 1892)
• Parties: CITY OF DENVER et al. v. SOLOMAN.
• Court: Colorado Court of Appeals

31 P. 507

2 Colo.App. 534

CITY OF DENVER et al. v. SOLOMAN.

Court of Appeals of Colorado

November 14, 1892

Appeal from district court, Arapahoe county.

Action by Joseph Soloman against the city of Denver, Emily J Middleton, J.S. Lesher, and Oscar Walker, to recover damages for injuries received from falling in a pit or area way along a sidewalk in defendant city. From a judgment for plaintiff defendants appeal. Affirmed.

The other facts fully appear in the following statement by REED J.:

Certain premises on Wazee street in the city of Denver are alleged to have been rented and used as livery and sale stables. Emily Middleton is alleged to have been the owner; Lesher and Walker, lessees, in the possession and use of the property. The building was a large structure, with basement; the front, for the entire length, being on the line of the street. In front of the building, within the line of the street extending along the front of the building, on each side of the center of it, was an excavation or pit for access and light to the basement, such pit or excavation extending nearly the entire length of the building, being about 5 feet in width and 3 1/2 feet in depth. There was some testimony showing that at some former time the pit was protected by some kind of a railing, but that it had been broken down or removed long previous; that there was no rail or protection of any kind when lessees went into the occupation of the premises January 1, 1889, and the condition remained the same. Across the opening, and extending from the office door out onto the sidewalk, was a short flight of steps, five or six in number, and four feet in width, to that extent bridging the pit, which was open and unprotected on each side. Again, a short distance off was a bridge or driveway, nearly 10 feet in width, to the doors of the building, bridging the excavation. Aside from this, the excavation was open, there being three different pits or openings made by the bridges, respectively, 4 feet, 5 feet, and 20 feet in length. On the evening of September 20, 1889, at about 8 o'clock, Soloman (appellee) drove into the yard, left a horse to be cared for, passed through the barn from rear to front, went out at the main door upon the carriage bridge or driveway crossing the opening, turned to the left too soon, walked off the end of the bridge, fell into the hole, and received serious personal injury, brought suit against appellants for damages sustained. Trial was had to a jury, resulting in a verdict and judgment for $841. The nature and extent of the injuries received by appellee were established by competent evidence, and appear to have been practically conceded. No question is made in regard to the amount awarded by the jury as damages; hence these questions are not involved. The complaint is in the ordinary form, alleging the injury; negligence of the city of Denver, Emily J. Middleton, as owner, and the other defendants, as lessees, in allowing the pit to remain unprotected. Certain allegations of the complaint will require notice in the discussion of the case. Lesher and Walker filed demurrers to the complaint. What disposition was made of them does not appear, and it is immaterial, as no exceptions were saved and the principal parties filed answers. The city of Denver, after general denials, admitted that plaintiff was properly upon the premises where the injury occurred, and that he fell into the pit; alleging that the injury received was very slight; that the pit or area way was not a defect in the sidewalk, nor one that should have been guarded by the city; that no hand or guard rail was necessary for the safety of the public in traveling along the street in front of or into the building; admits "that a notice of the intention of plaintiff to bring suit was served upon the mayor of the city of Denver on September 13, 1889." For a second defense: Negligence of the plaintiff, his knowledge of the locality, etc. The defendant Lesher answered generally, admitting that he and associates were in the occupation of the premises as lessees of the defendant Emily Middleton; alleging that the excavation was made long before his possession, and was not made by them; admitting that the opening was immediately in front of the premises occupied by them, in the sidewalk, and was unprotected; alleging that the injury was not received upon the premises leased and occupied by them, but in the public street in front of the premises, and that the street was under the control of the city, etc. Second defense: Knowledge of the premises by the plaintiff, and that the injuries were caused by his negligence. Defendant Emily Middleton answered, denying the ownership of the premises, and asserting that the injury was caused by the negligence of the plaintiff, etc.

F.A. Williams, Clay B. Whitford, and Johnson & Given, for appellants.

Chas. Hartzell and T.M. Patterson, for appellee.

REED J., (after stating the facts.)

It is seldom that a more troublesome and complicated case is presented for review. It will be conceded that the city, the owner of the property, and the lessees were all proper and necessary parties defendant; but, while necessarily so, it will at once be apparent that, except upon the common ground of the contributory negligence of plaintiff, each defendant, for the purpose of shifting the responsibility, interposed and prosecuted a different line of defense; in fact, rendering joint defendants equally as antagonistic to each other as either was to the plaintiff. This condition led to great embarrassment upon the trial. The various individual issues involved were such that, while almost any testimony offered might be properly admissible as between plaintiff and an individual defendant, much of it would be objectionable to codefendants. The same trouble arose in regard to the instructions of the court, and the embarrassment of the court is fully evidenced by the great number of conflicting and incompatible instructions prayed by different defendants. The great number and length of those both given and refused is such as to entail an immense amount of labor in this court in their examination alone. To attempt to reconcile and harmonize them would be equally impracticable, as it evidently was in the court below. The number of supposed errors assigned by the different defendants is rather startling, aggregating 75, each assigning as erroneous all the instructions given for the plaintiff, each of the codefendants, those given by the court on its own motion, and those prayed by the individual appellant and refused by the court.

The open, unprotected excavation or area way in the sidewalk between the front street line of the building and the street of the character established by the evidence, was dangerous to life and limb of those who traveled the street, and such condition had existed so long that the city authorities had full knowledge of it. Not to have the knowledge, imputed such negligence as to render the city liable. By its charter the city is liable for such neglect to an individual injured. The owner of the property and the lessees are also liable. To allow the sidewalk to remain in that situation was gross negligence, for which each and all were responsible; the owner and lessees for maintaining it, and the city for failing to compel proper protection. At common law either could have been prosecuted, and a recovery had, without making the others codefendants. The wording of section 11 of the city charter (Sess.Laws 1889) is peculiar: "No action can be maintained against the city of Denver for damages to persons or property by reason of any defect in the streets or sidewalks of said city, which defect was caused by or was the result of the negligence of some other than an employe of the city, unless said person shall be joined with the city in the same action," etc. It is difficult to arrive at the intention of the legislature, or proper legal construction of the paragraph. Though blindly expressed, it would seem that, where the injury was received through the negligence of a third party, and there was no knowledge of the danger nor negligence on the part of the city, the party directly causing the injury should be joined, and, if judgment was obtained, the party directly responsible should be held primarily liable, and the city's liability should be secondary. It is very doubtful whether the clause can have any application in a case like the present, where the city, the property owners, and lessees are all equally culpable. To so construe it at once raises the question whether or not, by reason of its departure from and contravention of well-settled principles of common law, and by reason of its limitations and restrictions upon the plaintiff's right to bring and maintain an action, it could be regarded as constitutional. Without determining that question, it can be safely said that it was never the intention of the legislature to compel a plaintiff to prosecute and maintain three different suits in one against three sets of tort feasors, all and each equally liable; nor can it be construed, as was attempted in this instance, to impose upon the plaintiff the burden of establishing his right of action against all the parties, and at the same time adjudicate the liability and settle the equities of the respective defendants as to each other. Admitting the statute to be constitutional, and the necessity of joining all the defendants in this case, and the right of each defendant to interpose any special defense not common to all, the rights of the plaintiff remained the same, and he could be required only to maintain the respective issues which were, as to him, plain and simple. Maintaining his issues against all he could take judgment...