Fowler Real Estate Co., Inc. v. Ranke

Decision Date19 March 1973
Docket NumberNo. C--251,C--251
Citation507 P.2d 854,181 Colo. 115
PartiesFOWLER REAL ESTATE COMPANY, INC., Petitioner, v. James C. RANKE et al., Respondents.
CourtColorado Supreme Court

Paul A. Morris, Boulder, for petitioner.

Collier, Hayden & Sweeney, William G. Ross, Denver, for respondent.

DAY, Justice.

We granted certiorari to the Court of Appeals to review an affirmance by that court of a judgment for $7,500 on a wrongful death action brought by the parents of Edward M. Ranke. The decision was by two judges with the third dissenting. Ranke v. Fowler Real Estate, 30 Colo.App. 543, 497 P.2d 1268.

The fourteen-year old youth, Edward, went swimming at a pool located in Eldorado Springs, Colorado, owned and operated by the petitioner, Fowler Real Estate Company, Inc. He was on an outing with nine other boys. About 10 to 15 minutes after the arrival of the group, Edward was pulled unconscious from the pool by the lifeguard on duty. Efforts to revive the boy proved futile.

The issue presented is whether the Court of Appeals erroneously upheld the trial court's action in refusing to instruct the jury on contributory negligence. We hold that it did and reverse.

We consider it settled law that issues of negligence, contributory negligence, proximate cause, and assumption of risk are for the finder of fact to determine. Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928. Only in rare cases, when the facts are clear and not in dispute, may the court determine contributory negligence as a matter of law. Schell v. Kullhem,127 Colo. 555, 259 P.2d 861.

Guidance of when the matter of contributory negligence can be taken from the jury was stated in Gray v. Turner, 142 Colo. 340, 350 P.2d 1043, quoting language found in a long line of cases dating back to 1906 in Williams v. Sleepy Hollow M. Co., 37 Colo. 62, 86 P. 337:

"It is only in the clearest of cases, when the facts are undisputed and it is plain that all intelligent men can draw but one inference from them, that the question is ever one for the court."

See also Bates v. Stagg, 157 Colo. 456, 404 P.2d 530; Hansen v. Dillon, 156 Colo. 396, 400 P.2d 201; Swanson v. Martin, 120 Colo. 361, 209 P.2d 917. See generally Denver v. Stutzman, 95 Colo. 165, 33 P.2d 1071.

Examination of the record reveals several facts which would support a jury's determination that the deceased was contributorily negligent. The father testified that the boy was not a strong swimmer and that he had warned Edward that morning not to swim in the deep end of the pool. He was found in that area which was clearly marked by depth measurements, and the area...

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8 cases
  • Rupert v. Clayton Brokerage Co. of St. Louis, Inc.
    • United States
    • Colorado Supreme Court
    • June 8, 1987
    ...competent evidence, will not be disturbed on appeal. Samuelson v. Chutich, 187 Colo. 155, 529 P.2d 631 (1974); Fowler Real Estate Co. v. Ranke, 181 Colo. 115, 507 P.2d 854 (1973). Clayton concedes that if it had complied with its investor and broker suitability standards and account minimum......
  • Kulik v. Public Service Co. of Colorado
    • United States
    • Colorado Court of Appeals
    • August 16, 1979
    ...of a duty is established, the particular scope of that duty is a question for the trier of fact. See, e. g., Fowler Real Estate Co. v. Ranke, 181 Colo. 115, 507 P.2d 854 (1973); Barker v. Colorado-Region Sports Car Club of America, Inc., 35 Colo.App. 73, 532 P.2d 372 Here, Metropolitan's co......
  • Samuelson v. Chutich
    • United States
    • Colorado Supreme Court
    • December 16, 1974
    ...(are) such that reasonable men, giving fair consideration thereto, must reach the same conclusion.' See Fowler Real Estate Company v. Ranke, 181 Colo. 115, 507 P.2d 854 (1973). If it appears to the court under the guidelines set forth in Buchholz, supra, that the plaintiff was not within th......
  • Lindauer v. LDB Drainlaying, Inc.
    • United States
    • Colorado Court of Appeals
    • September 23, 1976
    ...reasonable minds could draw but one inference from them that the court may rule on the issue as a matter of law. Fowler Real Estate co. v. Ranke, 181 Colo. 115, 507 P.2d 854; Eisenhart v. Loveland Skiing Corp., MEASURE OF DAMAGES. Defendant argues that the measure of damages should be the d......
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