Denver City Tramway Co. v. Nicholas

Citation84 P. 813, 35 Colo. 462
Case DateJanuary 08, 1906
CourtSupreme Court of Colorado

84 P. 813

35 Colo. 462

DENVER CITY TRAMWAY CO.
v.
NICHOLAS.

Supreme Court of Colorado

January 8, 1906


Rehearing Denied Feb. 5, 1906.

Appeal from District Court, Arapahoe County; F. T. Johnson, Judge.

Action by Joseph H. Nicholas, a minor, who sues by Joseph Nicholas, his next friend, against the Denver City Tramway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The amended complaint, inter alia, avers: 'That the Denver Consolidated Tramway Company, predecessor of the defendant, was possessed of certain cars moved and propelled by means of an electric current conveyed thereto by wire stretched over the railway. That the motor cars were equipped with an arm attached thereto upon the top of the cars, and moved vertically upon a hinge, and with a wheel upon the movable end thereof, called a trolley wheel, by which wheel and other devices the particulars whereof are unknown to the plaintiff, the electric [35 Colo. 464] current was conveyed to the car and the apparatus thereof, and by means thereof the cars were wont to be moved along the railway. That the motor cars were so adjusted that to suspend the motion thereof, the arm attached to them could be and was wont to be drawn and tied down, so that the trolley wheel was no longer in contact with the wire; that the cars were equipped with levers and other devices, the particulars whereof are unknown to the plaintiff, whereby, on releasing the arm and placing the trolley wheel in contact with the wire, and by moving the levers and other devices or some of them, the motor cars would again be set in motion at great speed; that the company was, and for a long time had been wont to assemble and store upon its tracks, upon Alaska street, the cars not at the time in use, and on the occasion in question was unlawfully maintaining and storing on one of its tracks, in the public street aforesaid, among other cars, one of the motor cars equipped as aforesaid. That the cars standing upon the street aforesaid were, as defendant well knew, attractive to children and youths, and that children and youths were and for a long time had been wont to resort to them to amuse themselves by imitating the actions, motions, and conduct of the employés of the company operating the said cars. That defendant had, during all the time aforesaid, omitted to erect any fence about the cars, or place said cars within any inclosure, or station any watchman or other person to warn off or exclude children therefrom; and during all the time aforesaid, had been wont to leave, and on the day and year in question had left, and was leaving and maintaining the cars aforesaid, including one of said motor cars in said Alaska street, entirely exposed, not inclosed, without maintaining any watchman or guard to warn or exclude any children therefrom, or by any means [35 Colo. 465] attempting to protect children attracted thereto, from injury by means of such cars; that on the day and year aforesaid, plaintiff and one Nelson Vaille, each being under the age of 13 years, and each being ignorant of the machinery and devices whereby said motor cars were set in motion, and all the uses of said devices, and ignorant of and not appreciating the great danger of attempting to move or operate and interfere with said cars, and plaintiff by reason of his youth being unable to appreciate or understand the danger of attempting to move or operate said cars, or interfere therewith or play about the same, and unable to resist his natural propensity to amuse himself with such cars, went to and got upon one of the said motor cars, and plaintiff and said Nelson were there amusing themselves for one-half hour or thereabouts, pretending to move, stop and again set in motion the said car. That in front of the car, upon the same track, was another car of defendant, unlawfully placed and maintained in the public street aforesaid, and that plaintiff and the said Nelson Vaille, or one of them, having untied the rope whereby said arm was drawn down, and having caused said movable arm to rise, so that the trolley wheel was against the wire, conveying the electric current as before set forth, plaintiff being ignorant of the uses and devices upon the front platform, and incapable to understand, know or appreciate the great danger of meddling or interfering therewith, carelessly moved one of said levers or some other of the devices aforesaid, and thereby suddenly set the car in motion at great speed and towards and upon and against the other cars standing in front thereof; and plaintiff being overcome with fright, and ignorant and unconscious of the great risk thereof, hastily attempted to dismount from said car, and in said attempt was caught between the moving car aforesaid and the car [35 Colo. 466] in front thereof, and one of the legs of plaintiff was thereby broken.'

The instructions given by the court which are reported in the abstract are as follows: Instruction No. 1: 'Plaintiff claims that the defendant was possessed of certain electric cars and left them exposed in a public street and with the appliances thereof unguarded and so insecure that the cars might be set in motion by children amusing themselves thereat, the defendant knowing that...

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14 practice notes
  • S.W. v. Towers Boat Club, Inc., Supreme Court Case No. 12SC391
    • United States
    • Colorado Supreme Court of Colorado
    • December 23, 2013
    ...personal injury such as may be attracted thereby.Id.at 278, 64 P. at 1048 (emphasis added); see also Denver City Tramway Co. v. Nicholas, 35 Colo. 462, 470, 84 P. 813, 815–16 (1906) (quoting this language from Kopplekom ). Crucially, the court deemed this to be the rule of law even if the c......
  • Thomas v. Oregon Short Line R. Co., 2800
    • United States
    • Supreme Court of Utah
    • January 12, 1916
    ...Christensen v. Railway, 29 Utah 193, 80 P. 746; Riley v. Rapid Transit Co., 10 Utah 428, 37 P. 681; Denver City Tramway Co. v. Nicholas, 35 Colo. 462, 84 P. 813; Smith v. Pittsburgh & W. Ry. Co. (C. C.) 90 F. 783. In each of these cases the question before the court was as to whether the ch......
  • Blakesley v. Standard Oil Co., No. 33882.
    • United States
    • United States State Supreme Court of Iowa
    • March 11, 1922
    ...St. Rep. 670;Kelly v. Traction Co., 204 Pa. 623, 54 Atl. 482;Potera v. Brockhaven, 95 Miss. 774, 49 South. 617;Tramway Co. v. Nicholas, 35 Colo. 462, 84 Pac. 813;Omaha v. Richards, 49 Neb. 244, 68 N. W. 528. True this presumption is rebuttable, and whether it has been sufficiently rebutted ......
  • Blakesley v. Standard Oil Co., 33882
    • United States
    • United States State Supreme Court of Iowa
    • May 6, 1921
    ...& B. Traction Co., 204 Pa. 623 (54 A. 482); Potera v. City of Brookhaven, 95 Miss. 774 (49 So. 617); Denver City Tramway Co. v. Nicholas, 35 Colo. 462 (84 P. 813); City of Omaha v. Richards, 49 Neb. 244 (68 N.W. 528). True, this presumption is rebuttable, and whether it has been sufficientl......
  • Request a trial to view additional results
14 cases
  • S.W. v. Towers Boat Club, Inc., Supreme Court Case No. 12SC391
    • United States
    • Colorado Supreme Court of Colorado
    • December 23, 2013
    ...personal injury such as may be attracted thereby.Id.at 278, 64 P. at 1048 (emphasis added); see also Denver City Tramway Co. v. Nicholas, 35 Colo. 462, 470, 84 P. 813, 815–16 (1906) (quoting this language from Kopplekom ). Crucially, the court deemed this to be the rule of law even if the c......
  • Thomas v. Oregon Short Line R. Co., 2800
    • United States
    • Supreme Court of Utah
    • January 12, 1916
    ...Christensen v. Railway, 29 Utah 193, 80 P. 746; Riley v. Rapid Transit Co., 10 Utah 428, 37 P. 681; Denver City Tramway Co. v. Nicholas, 35 Colo. 462, 84 P. 813; Smith v. Pittsburgh & W. Ry. Co. (C. C.) 90 F. 783. In each of these cases the question before the court was as to whether the ch......
  • Blakesley v. Standard Oil Co., No. 33882.
    • United States
    • United States State Supreme Court of Iowa
    • March 11, 1922
    ...St. Rep. 670;Kelly v. Traction Co., 204 Pa. 623, 54 Atl. 482;Potera v. Brockhaven, 95 Miss. 774, 49 South. 617;Tramway Co. v. Nicholas, 35 Colo. 462, 84 Pac. 813;Omaha v. Richards, 49 Neb. 244, 68 N. W. 528. True this presumption is rebuttable, and whether it has been sufficiently rebutted ......
  • Blakesley v. Standard Oil Co., 33882
    • United States
    • United States State Supreme Court of Iowa
    • May 6, 1921
    ...& B. Traction Co., 204 Pa. 623 (54 A. 482); Potera v. City of Brookhaven, 95 Miss. 774 (49 So. 617); Denver City Tramway Co. v. Nicholas, 35 Colo. 462 (84 P. 813); City of Omaha v. Richards, 49 Neb. 244 (68 N.W. 528). True, this presumption is rebuttable, and whether it has been sufficientl......
  • Request a trial to view additional results

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