Denver Tramway Corp. v. Callahan, 15101.

Docket Nº15101.
Citation150 P.2d 798, 112 Colo. 460
Case DateJune 19, 1944
CourtSupreme Court of Colorado

150 P.2d 798

112 Colo. 460

DENVER TRAMWAY CORPORATION
v.

CALLAHAN.

No. 15101.

Supreme Court of Colorado

June 19, 1944


Rehearing Denied July 24, 1944.

In Department.

Error to District Court, City and County of Denver; Floyd F. Miles, Judge.

Action by Robert B. Callahan against the Denver Tramway Corporation and others, subsequently dismissed except as to defendant named, to recover damages claimed to have resulted by reason of the death of plaintiff's son who was drowned on premises under control of defendants. Judgment for plaintiff, and defendant brings error.

Reversed.

[112 Colo. 461] W. A. Alexander and Cecil M. Draper, both of Denver, for plaintiff in error.

Harry A. Feder and Milton Morris, both of Denver, for defendant in error.

BAKKE, Justice.

Robert B. Callahan, defendant in error, plaintiff below, brought this action against plaintiff in error, the Denver Tramway Corporation and the City and County of Denver, praying damages in the sum of $5,000 claimed to have resulted by reason of the death of his son James, who was drowned when he dropped into a deep hole in the Platte river on premises under the control of defendant corporation. After issues joined, the matter was dismissed as to the City and County of Denver, but tried to a jury as to the Tramway company. The jury returned a verdict in favor of the plaintiff in the sum of $800, and judgment was entered accordingly. The company seeks reversal on a writ of error.

The drowning occurred on August 4, 1940, when James, approximately eleven years of age, in company with two other boys, went down to the river to play near a turbine intake plant operated by the company. The plant is located on a bank of the Platte river, where, since 1901, the company has taken water for purposes of condensation to be used in connection with its adjoining [112 Colo. 462] power plant. To make the water more easily available, the company maintains a V-shaped drag, operated on a cable, which, as occasion requires, is moved back and forth in front of the plant to pull the sand away from the basins to a depth of about ten to twelve feet. August 4th was Sunday, and the drag had been used the Wednesday Before . When the boys reached the intake plant they removed their clothing, and James told one of the other boys he was going into the water, saying: 'I think I can swim.' At the place he entered, the water was shallow and he waded out to a cable by which he attempted to cross said intake plant by pulling himself hand over hand. Shortly thereafter he lost his hold on the cable and dropped into the water over the deep excavation. He was unable to swim and was drowned, his body being recovered a short time later.

In bringing the action, plaintiff adopted the theory that the company maintained the premises as an 'attractive nuisance' to the children in the community, and in doing so failed to warn said children, and particularly James, of the dangerous condition thereof.

No good purpose would be served by considering the numerous points specified as constituting error, because the affirmance of the judgment depends on whether the case of City and County of Denver v. Stutzman, 95 Colo. 165, 33 P.2d 1071, 1072, is controlling. The trial court very frankly [150 P.2d 799] stated that if it were not for that case, he would have granted the company's motion for a directed verdict. It is not difficult to understand why the trial court took such a position, because the physical facts of the two cases are strikingly similar, in that death in both was caused by drowning in a deep hole made by dredging machines, used by defendants in each case in the same general locality on the Platte river, in the City of Denver; however, there are at least two vital distinctions in the law applicable that may not have been called to the attention of the trial court, and the court had no opportunity to examine the record in the Stutzman case.

...

To continue reading

Request your trial
4 practice notes
  • S.W. v. Towers Boat Club, Inc., Supreme Court Case No. 12SC391
    • United States
    • Colorado Supreme Court of Colorado
    • December 23, 2013
    ...¶ 22 We find no support in our case law for this proposition. The court of appeals cites to a dictum in Denver Tramway Corp. v. Callahan, 112 Colo. 460, 464–65, 150 P.2d 798, 799–800 (1944), in which we stated that “there is no question but that the [child plaintiff] was a trespasser on the......
  • SW v. Towers Boat Club, Inc., No. 11CA0935.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 26, 2012
    ...of Denver, 112 Colo. 546, 151 P.2d 757 (1944)); 62 Am.Jur.2d Premises Liability § 299 n. 9 (citing Denver Tramway Corp. v. Callahan, 112 Colo. 460, 150 P.2d 798 (1944)). ¶ 22 We conclude that historical Colorado attractive nuisance doctrine can easily be harmonized with other provisions of ......
  • Fitch v. Selwyn Village, No. 530
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 12, 1951
    ...McCall v. McCallie, 48 Ga.App. 99, 171 S.E. 843; Simon v. Hudson Coal Co., 350 Pa. 82, 38 A.2d 259; Denver Tramway Corp. v. Callahan, 112 Colo. 460, 150 P.2d 798; McGuire v. Carey, 366 Pa. 627, 79 A.2d 236; 38 Am.Jur., Negligence, section 149, page 815. Cf. Salt River Valley Water Users' As......
  • Jones v. Comer, No. 5-3116
    • United States
    • Supreme Court of Arkansas
    • January 13, 1964
    ...8 Cal.2d 741, 68 P.2d 971 (Children playing on raft and boards. One child fell off and drowned.); Denver Tramway Corp. v. Callahan, 112 Colo. 460, 150 P.2d 798 (Eleven year old child tried to cross pond by cable and drowned.); Harriman v. Afton, 225 Iowa 659, 281 N.W. 183 (Thirteen year old......
4 cases
  • S.W. v. Towers Boat Club, Inc., Supreme Court Case No. 12SC391
    • United States
    • Colorado Supreme Court of Colorado
    • December 23, 2013
    ...¶ 22 We find no support in our case law for this proposition. The court of appeals cites to a dictum in Denver Tramway Corp. v. Callahan, 112 Colo. 460, 464–65, 150 P.2d 798, 799–800 (1944), in which we stated that “there is no question but that the [child plaintiff] was a trespasser on the......
  • SW v. Towers Boat Club, Inc., No. 11CA0935.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 26, 2012
    ...of Denver, 112 Colo. 546, 151 P.2d 757 (1944)); 62 Am.Jur.2d Premises Liability § 299 n. 9 (citing Denver Tramway Corp. v. Callahan, 112 Colo. 460, 150 P.2d 798 (1944)). ¶ 22 We conclude that historical Colorado attractive nuisance doctrine can easily be harmonized with other provisions of ......
  • Fitch v. Selwyn Village, No. 530
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 12, 1951
    ...McCall v. McCallie, 48 Ga.App. 99, 171 S.E. 843; Simon v. Hudson Coal Co., 350 Pa. 82, 38 A.2d 259; Denver Tramway Corp. v. Callahan, 112 Colo. 460, 150 P.2d 798; McGuire v. Carey, 366 Pa. 627, 79 A.2d 236; 38 Am.Jur., Negligence, section 149, page 815. Cf. Salt River Valley Water Users' As......
  • Jones v. Comer, No. 5-3116
    • United States
    • Supreme Court of Arkansas
    • January 13, 1964
    ...8 Cal.2d 741, 68 P.2d 971 (Children playing on raft and boards. One child fell off and drowned.); Denver Tramway Corp. v. Callahan, 112 Colo. 460, 150 P.2d 798 (Eleven year old child tried to cross pond by cable and drowned.); Harriman v. Afton, 225 Iowa 659, 281 N.W. 183 (Thirteen year old......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT