Dunbar v. Olivieri, 13485.

Docket Nº13485.
Citation97 Colo. 381, 50 P.2d 64
Case DateSeptember 23, 1935
CourtSupreme Court of Colorado

50 P.2d 64

97 Colo. 381

DUNBAR
v.
OLIVIERI.

No. 13485.

Supreme Court of Colorado

September 23, 1935


In Department.

Error to District Court, City and County of Denver; Robert W. Steele, Judge.

Action by Donald Dunbar, a minor, by Alberta Dunbar, his next friend, against Basilio Olivieri. To review a judgment of nonsuit, plaintiff brings error.

Affirmed.

[97 Colo. 382] Omar E. Garwood, Milton C. Garwood, and George O. Marrs, all of Denver, for plaintiff in error.

John E. Nelson, Albert E. Sherlock, and Francis Kidneigh, all of Denver, for defendant in error.

BOUCK, Justice.

Donald Dunbar, a nine year old boy, brought an action by his mother as next friend, to recover from the defendant in error, Olivieri, damages for injuries claimed to be due to negligence. Error is assigned on a judgment of nonsuit entered in the district court.

The complaint alleges, as a first cause of action, that on February 19, 1933, between 11:30 a. m. and 12:30 p. m., the defendant unlawfully, negligently, and carelessly burned and maintained a bonfire [50 P.2d 65] at a place on an open lot readily accessible to children of tender years, contrary to section 804 of the Denver Municipal Code, which says: 'It shall be unlawful to burn bonfires or rubbish except between the hours of 4 and 8:30 in the afternoon of any day'; that about 11 a. m. of said day the plaintiff was exposed to, and came in contact with, said fire, and his clothing then and there caught fire and severely burned the plaintiff, particularly on his chest and abdomen, necessitating hospital treatment, and rendering him a permanent and insurable cripple and causing [97 Colo. 383] great pain.

As a second cause of action, the complaint alleges the foregoing and, in addition, that the fire was an attractive nuisance calculated and likely to attract young children, to watch the same, and the plaintiff was attracted thereto and watched the fire and was burned thereby as stated, to his damage.

The plaintiff must therefore recover (if at all) by showing either that the ordinance violation did, as counsel contend, constitute negligence per se and was in the legal sense the cause of his injury, or else that the attractive nuisance doctrine is properly applicable to the case.

In support of the proposition that the defendant is thus guilty of negligence per se, counsel for the plaintiff cite merely the following Colorado cases: Denver, etc., R. Co. v. Ryan, 17 Colo. 98, 28 P. 79; Platte, etc., C. & M. Co. v. Dowell, 17 Colo. 376, 30 P.68; Richardson v. El Paso, etc., Co., 51 Colo. 440, 118 P. 982; Phillips v. Denver Tramway Co., 53 Colo. 458, 128 P. 460, Ann.Cas. 1914B, 29; Denver Tramway Co. v. Orbach, 64 Colo. 511, 172 P. 1063; Oliver v. Weaver, 72 Colo. 540, 212 P. 978; Campion v. Eakle, 79 Colo. 320, 246 P. 280, 47 A.L.R. 289.

The only Colorado cases relied upon by counsel as authorities on the attractive nuisance theory are: Denver City Tram. Co. v. Nicholas, 35 Colo. 462, 84 P. 813; Lovejoy v. Denver, etc., Co., 59 Colo. 222, 146 P. 263, L.R.A. 1915E, 888, Ann.Cas. 1916E, 1075; Hayko v. Colo. & Utah Coal Co., 77 Colo. 143, 235 P. 373, 39 A.L.R. 482; Smith v. Windsor R. & C. Co., 78 Colo. 169, 240 P. 332; Windsor R. & C. Co. v. Smith, 82...

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25 practice notes
  • Lyons v. Nasby, No. 87SC387
    • United States
    • Colorado Supreme Court of Colorado
    • March 20, 1989
    ...and that the injuries suffered were of the kind that the statute was enacted to prevent. Crespin, 727 P.2d at 1108; Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935). Respondent argues that this last requirement prevents any finding of negligence per Petitioner asserts that the respondent......
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...affirmed. Whether or not defendant's placement and manner of keeping of dynamite was reasonable was never discussed. Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935) involved a 9-year old boy who became a permanent and incurable cripple due to injuries sustained while playing around a bo......
  • Hillman v. Northern Wasco County People's Utility Dist.
    • United States
    • Supreme Court of Oregon
    • March 26, 1958
    ...[Citing cases.]' To the same effect see Shipley v. City of Arroyo Grande, 92 Cal.App.2d 748, 208 P.2d 51 and Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d We doubt that the legislature intended, in passing the safety act, to abrogate the common law rule of reasonable care and substitute in its ......
  • Bittle v. Brunetti, No. 85SC476
    • United States
    • Colorado Supreme Court of Colorado
    • February 8, 1988
    ...168 (1961) (violation of municipal safety ordinance may be negligence per se when it is proximate cause of injuries); Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935) (considering possibility that municipal law prohibiting people from lighting bonfires outside of certain hours establishe......
  • Request a trial to view additional results
25 cases
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...affirmed. Whether or not defendant's placement and manner of keeping of dynamite was reasonable was never discussed. Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935) involved a 9-year old boy who became a permanent and incurable cripple due to injuries sustained while playing around a bo......
  • Lyons v. Nasby, No. 87SC387
    • United States
    • Colorado Supreme Court of Colorado
    • March 20, 1989
    ...and that the injuries suffered were of the kind that the statute was enacted to prevent. Crespin, 727 P.2d at 1108; Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935). Respondent argues that this last requirement prevents any finding of negligence per Petitioner asserts that the respondent......
  • Hillman v. Northern Wasco County People's Utility Dist.
    • United States
    • Supreme Court of Oregon
    • March 26, 1958
    ...[Citing cases.]' To the same effect see Shipley v. City of Arroyo Grande, 92 Cal.App.2d 748, 208 P.2d 51 and Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d We doubt that the legislature intended, in passing the safety act, to abrogate the common law rule of reasonable care and substitute in its ......
  • Bittle v. Brunetti, No. 85SC476
    • United States
    • Colorado Supreme Court of Colorado
    • February 8, 1988
    ...168 (1961) (violation of municipal safety ordinance may be negligence per se when it is proximate cause of injuries); Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64 (1935) (considering possibility that municipal law prohibiting people from lighting bonfires outside of certain hours establishe......
  • Request a trial to view additional results

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