Denver Tramway Corp. v. Callahan

• Decision Date: 19 June 1944
• Docket Number: 15101.
• Citation: 150 P.2d 798,112 Colo. 460
• Parties: DENVER TRAMWAY CORPORATION v. CALLAHAN.
• Court: Colorado Supreme Court

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.

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 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 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.

In the first place, while the opinion in the Stutzman case does not specifically so state, we think it apparent that the judgment was not predicated on the attractive-nuisance doctrine, and while the statement that 'boys and girls were in the habit of similarly wading and playing in the stream' might be suggestive of the doctrine, it is well known that streams and other bodies of water in their natural state, while attractive to children, do not form the basis for an attractive-nuisance contention. It will be noted that the facts in Stutzman case are, by the opinion, placed in that category of cases where a city is liable for damage resulting from its 'negligence in the planning, construction, or maintenance of sewers and sewage systems,' and that nowhere in the complaint, the instructions, or the opinion, is the attractive-nuisance doctrine mentioned. Furthermore, while we state in the opinion in the Stutzman case that the court is 'not required to determine possible limitations or qualifications of the doctrine announced in the Windsor Company case' (Windsor Reservoir & Canal Co. v. Smith, 92 Colo. 464, 21 P.2d 1116, and 82 Colo. 497, 261 P. 872, 873), it definitely appears from the complaint and instructions that the 'trap' theory set forth in the Windsor cases was the basis of the action. That the Windsor cases are not controlling, is evident from the following statement appearing in the opinion in the first case: 'If the boy entered in violation of warnings, either written or otherwise, he was a trespasser, and was entitled to no care.' In the case at bar, it is established beyond question that James had been warned to stay away from the premises by employees of the company, by his own father within a week preceding the accident, and by his playmate, Harry Longshore, only an instant Before he stepped into the water.

In the second place, in the Stutzman case we specifically approved challenged instruction No. 8 given therein, which reads as follows: 'You are instructed that people have a right to go upon public property of the City and County of Denver without an invitation, and that the City is under no obligation to keep that property in repair so as to make it safe for everybody. But the City is liable if it negligently constructs and maintains a dangerous condition which cannot be seen, without notifying the public who is in the habit of using that public property.' This instruction took the case out of the attractive-nuisance theory (45 C.J. 771[13]), and placed the duty of the city on a plane with a...