Elliott v. Field

• Decision Date: 17 June 1895
• Citation: 41 P. 504,21 Colo. 378
• Parties: ELLIOTT et al. v. FIELD.
• Court: Colorado Supreme Court

41 P. 504

21 Colo. 378

ELLIOTT et al. v. FIELD.

Supreme Court of Colorado

June 17, 1895

Error to La Plata county court.

Action by Ralph Field against W. S. Elliott and the city of Durango. From a judgment for plaintiff, defendants bring error. Affirmed.

Wilson & McCloskey and O. S. Galbreath, for plaintiffs in error.

Jackson & Yeager, Geo. F. Summer, and John Hipp, for defendant in error.

CAMPBELL J.

This was an action by the defendant in error against the plaintiffs in error to recover damages for personal injuries which the complaint alleges were sustained by the plaintiff on the night of the 20th of September, 1891, as the result of his falling into a deep and dangerous excavation made by the defendant Elliott in a public street in the city of Durango, which the said defendant and his codefendant, the city, negligently and wrongfully suffered to remain open and exposed for a period of about three months without any protection, and without any light or signal to indicate danger at night. The trial resulted in a judgment for the plaintiff against both defendants in the sum of $1,140, to reverse which the defendants are prosecuting this writ of error. To the complaint the defendants interposed separate demurrers, on the grounds of uncertainty; that the complaint did not state a cause of action; that there was an improper joinder of several causes of action, and a misjoinder of parties defendant. These demurrers were overruled by the court, and the defendants, not electing to stand by their demurrers, filed separate answers, that of the defendant Elliott being a general denial, while the answer of the city contained, not only a general denial, but a so-called separate and further defense, alleging that the excavation was in the sidewalk, and the city was not the owner of the adjoining lot; that the excavation was not made by it, or under its authority; and that it had no notice of any defect in the street. The plaintiff filed a replication denying this affirmative matter, and trial was had upon the issues thus joined. The bill of exceptions filed in this court was stricken from the record upon the application of the defendant in error, so that in considering the errors assigned we are restricted to those appearing in the record proper. These relate to the granting of a continuance by the court, upon the application of the plaintiff, over the objection of the defendants, and to the overruling of the demurrers to the complaint.

1. One of the grounds for a continuance was on account of the absence of material witnesses, whose evidence, as set out in the affidavit, the defendants, in order that there might not be a delay in the trial, offered to admit would be given. If the objection and the exception to this ruling of the court upon the continuance are preserved in the record, the action of the court was proper, because one of the grounds assigned for the continuance was the unavoidable absence from the court of the plaintiff, who was detained by serious illness. The plaintiff had the right to be present to assist his counsel in the trial, and his necessary absence was a good ground for continuance. We must assume, in the absence of any showing to the contrary, that the court granted the application upon this ground, and that the showing therefor was sufficient.

2. Under our practice, a demurrer to the complaint, except for the grounds that the same...