Frazier v. Edwards, 15833.

• Decision Date: 26 January 1948
• Docket Number: 15833.
• Citation: 190 P.2d 126,117 Colo. 502
• Parties: FRAZIER v. EDWARDS et al.
• Court: Colorado Supreme Court

190 P.2d 126

117 Colo. 502

FRAZIER v. EDWARDS et al.

No. 15833.

Supreme Court of Colorado, in Department.

January 26, 1948

Rehearing Denied March 1, 1948.

Error to District Court, Pueblo County; J. Arthur Phelps, Judge.

Action by Eva H. Edwards against Elsie I. Frazier, formerly Elsie I Barker, for injuries alleged to have been sustained in fall on an icy sidewalk on defendant's premises, wherein John Stavast was brought in as third-party defendant by original defendant and a cross-complaint was filed by original defendant against third-party defendant. To review summary judgment in favor of third-party defendant and a judgment for plaintiff against original defendant, the original defendant brings error.

Affirmed.

Wolvington & Wormwood, of Denver, for plaintiff in error.

Harry S. Petersen and Maurice A. Eversen, of Pueblo, for defendant in error Edwards.

William T. Burris, of Pueblo, for defendant in error Stavast.

LUXFORD Justice.

This is an action to recover damages for personal injuries alleged to have been sustained in a fall on an icy sidewalk. The original suit was by plaintiff, a tenant, against defendant her landlady. Later a contractor, John Stavast, was brought in as third-party defendant. The trial court sustained the latter's motion for judgment on the pleadings and summary judgment. The case was then tried, the jury's verdict was for plaintiff, and the court entered judgment thereon. Defendant brings the case here for review alleging that the court erred: (1) in granting third-party defendant's motion for judgment on the pleadings and summary judgment (2) in denying defendant's motion for a directed verdict at the close of plaintiff's evidence; (3) in denying defendant's motion for a directed verdict at the close of all the evidence, and (4) in giving to the jury instruction No. 7. As above stated, defendant in error, John Stavast, was third-party defendant in the trial court, and he will be hereinafter mentioned by name. The other parties are here in reverse order of their appearance below, and we will hereinafter refer to them as plaintiff and defendant or by name.

Plaintiff, Eva H. Edwards, was a tenant in an apartment house, owned and operated by the defendant, Elsie I. Frazier, at 311 West Eighth Street, Pueblo, Colorado. Returning to the apartment about 6:20 o'clock in the evening of January 22, 1945, and using the private sidewalk on said premises, which extended from the street sidewalk to the front door of said building, plaintiff slipped and fell, the fall resulting in a broken hip. She brought this action against defendant for damages on account of said injury, and alleged that it was caused by defendant owner's negligence in allowing the sidewalk to become slippery and dangerous, due to an accumulation of ice thereon. As above noted, Stavast was brought into the case as a third-party defendant. It appeared that in doing certain carpenter work on defendant's apartment house, under a contract with her, Stavast had removed an old downspout on the front part of the building, and was unable to replace it with a new one because of war-time restrictions. All his other work, under the contract, had been completed, settlement with defendant had been made therefor, and practically all his tools and surplus materials had been removed from her premises Before plaintiff's accident. Subsequently, plaintiff accepted Stavast as another defendant and filed an amended complaint including him as such. Therein she alleged that her injury was due to the negligence of defendant or Stavast or both. Defendant filed an answer to the amended complaint and set forth therein a cross-complaint against Stavast, alleging that he was liable to her for any damages that might be awarded plaintiff. Stavast filed his answer to the amended complaint, in which he alleged that defendant was, at all times mentioned in said complaint the owner, and in complete possession and control of the premises in question, and that any contractual liability between her and himself had terminated Before the happening of the accident.

Motion for judgment on the pleadings and summary judgment. After a pre-trial conference and the taking of the depositions of plaintiff and defendant, Stavast filed a motion for judgment on the pleadings and summary judgment, which the court sustained. At the pre-trial conference counsel for defendant stated their position as follows: 'We admit that she was the owner and in possession of the property in question, but we state definitely that we did not have control over the downspout.' Such a position is untenable. The defendant was in complete possession and control of her apartment house when plaintiff's accident occurred. She had Before that time settled with Stavast for the work he had performed; her contractual relations with him had ceased; he was not on her premises, and had nothing to do with operating the same; and was not liable to plaintiff because there was no privity of contract between himself and her. Ford v. Sturgis, 56 App.D.C. 361, 14 F.2d 253, 52 A.L.R. 619; Huset v. J. I. Case Threshing Mach. Co., 8 Cir., 120 F. 865, 61 L.R.A. 303; Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 13 N.W. 499, 43 Am.Rep. 456; Besner v. Central Trust Co., 230 N.Y. 357, 130 N.E. 577, 23 A.L.R. 1081. Defendant was operating her apartment house, knowing of the absence of the downspout, and any attendant responsibility, under the circumstances, was hers. Otis Elevator Co. v. Maryland Casualty Co., 95 Colo. 99, 33 P.2d 974, is cited in support of defendant's contention. In that case it was held, as stated in paragraph 8 of the...