City of Victor v. Smilanich

• Decision Date: 07 April 1913
• Citation: 54 Colo. 479,131 P. 392
• Parties: CITY OF VICTOR v. SMILANICH.
• Court: Colorado Supreme Court

131 P. 392

54 Colo. 479

CITY OF VICTOR v. SMILANICH.

Supreme Court of Colorado

April 7, 1913

Appeal from District Court, Teller County; John W. Sheafor, Judge.

Action by Peter Smilanich by Gabriel Smilanich, his next friend against the City of Victor. From a judgment for plaintiff defendant appeals. Affirmed.

Appellee as plaintiff, by his next friend brought suit against the city of Victor to recover damages sustained by the alleged negligence of the latter. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $7,500, from which the defendant has appealed.

The complaint alleged, in substance, that plaintiff at the time the injury was sustained was about 4 1/2 years of age; that at this time the city was engaged in extending its municipal water system by constructing a ditch through the residence district adjacent to the city, employing laborers for that purpose, who, with tools and explosives, were removing rock and soil from the ditch; that plaintiff resided with his parents in the vicinity of the ditch; that many other small children resided in the same neighborhood; that defendant's employés engaged in excavating the ditcy carelessly and negligently permitted a box of explosive caps intended to explode with great force when struck with a hard instrument, to remain where the children of the neighborhood including plaintiff, could gather them up; that these caps were of an attractive appearance, and enticing to plaintiff as playthings; that plaintiff and one of his playmates, by the name of Willie Vranesich, not knowing the dangerous character of the caps, and having access thereto, took a number of the caps; that plaintiff held one of them in his hand, and Willie, not knowing the danger to which he and the plaintiff were exposed, struck the cap with a rock, causing it to explode, whereby plaintiff was grievously injured in particulars specified. For answer the defendant, so far as material to consider, denied the negligence charged; that is denied that its employés negligently and carelessly left explosive caps where plaintiff and other children would have access to them.

The evidence established that plaintiff at the time of his injury was of the age charged in the complaint, and that his playmate, Willie, was about six years of age; that Peter was injured by the explosion of a cap commonly used to explode giant powder; and that thereby his right hand was torn from his wrist, the bone in the thigh of his right leg broken, and his flesh and muscles badly lacerated. The evidence further establishes that defendant was engaged in excavating the tench for its waterworks system, and that in prosecuting this work its employés used explosives, including caps of the character in question, for the purpose of exploding giant powder, and that such caps will explode when struck by a hard substance. It also appears that part of this work was being done by contractors, who had contracts from the city, and gratuitously by owners of property in the vicinity, all of whom used explosives, for whose conduct, however, the defendant was not responsible. The tools and explosives used by the employés of the city were kept in a shed near the residence of the parents of Peter, which was kept locked, the key being carried by one of them. Peter's mother testified that on the day her boy was injured, and shortly before the injury, she heard shooting in the trench. The employés of the city were engaged in working in the ditch at this time. These parties admitted that they kept explosives in the shed mentioned, which were used in excavating the ditch; that a few days prior to the time Peter was injured they had brought to their work a round tin box about two-thirds full of caps. A full box contains 100 caps. There was testimony to the effect that other parties who had been engaged on the ditch, either as contractors or on their own account, had completed their work nearly a month previous to the injury, and that they had not left any caps on the work.

Willie was called as a witness for the plaintiff, and over the objection of the defendant was permitted to testify. The objection urged was his age, which, at the time of the trial was about 6 1/2 years. On his voir dire he was examined by counsel for both sides, and by the court, by a line of questions intended to elicit his understanding of the obligations of an oath, and also his intelligence, after which the objection was overruled. From this examination it appears he had some idea of the obligation of an oath, that he understood he could be punished if he did not tell the truth, and that he was fairly intelligent for a boy of his age. He testified that he and Peter found the caps in a tin box just outside the door of the shed, where the tools and explosives were kept by the city's employés engaged on the ditch, and just prior to the time Peter was injured, and that Peter held one of the caps in his hand, which the witness struck with a rock. Shortly after the explosion about 35 caps were taken from Willie's pocket, which he said he found in the box at the door of the shed, and quite a number were found on the ground in the immediate vicinity of where the injury occurred. This witness further testified that he never got caps out of an empty house, nor from under the sidewalk, and that all the caps he ever got he took from the box by the door of the shed. There was also testimony tending to prove that Willie could not have secured the caps about the residence of his parents, as explosives were not kept there. It appears that the employés of the city could not have used in ...