Gotch v. K. & B. Packing & Provision Co., 13032.

Docket Nº13032.
Citation25 P.2d 719, 93 Colo. 276
Case DateSeptember 18, 1933
CourtSupreme Court of Colorado

25 P.2d 719

93 Colo. 276

GOTCH
v.
K. & B. PACKING & PROVISION CO.

No. 13032.

Supreme Court of Colorado, En Banc.

September 18, 1933


Casemaker Note: Portions of this opinion were specifically rejected by a later court in 489 P.2d 308.

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 27 F.Supp. 880

Error the District Court, City and County of Denver; Arlington Taylor, Judge.

Action by John Gotch against the K. & B. Packing & Provision Company. To review a judgment of nonsuit, plaintiff brings error.

Affirmed.

[93 Colo. 277] Ivor O. Wingren, Earle F. Wingren, and G. Walter Bowman, all of Denver, for plaintiff in error.

Charles Rosenbaum, of Denver, for defendant in error.

BUTLER, Justice.

John Gotch sued the K. and B. Packing & Provision Company for damages for the death of his wife. The trial court granted the company's motion for a nonsuit and dismissed the action. Gotch seeks a reversal of the judgment.

The company operates a slaughterhouse and packing plant in Denver. Its building is large. In the southwest corner on the ground floor is the office, and in the southeast corner is a door between the loading platform and the shipping room. At the north end of the shipping room is a door opening into the slaughter room. On the day [25 P.2d 720] of the accident that door was open. Immediately to the east of that door is a freight elevator shaft that extends from the basement to the second floor. The elevator gate did not work automatically, as required by the [93 Colo. 278] city ordinance, but had to be raised and lowered by hand. On the day of the accident the elevator was on the second floor and the elevator gate was up, leaving the shaft unguarded on the ground floor.

Three or four times a week for about four years Mrs. Gotch had taken lunches to their son, Mike. She would deliver them to him in the slaughter room, where he worked as a butcher. On December 15, 1930, Mrs. Gotch brought a lunch for her son. She passed through the doorway from the platform into the shipping room, and proceeded toward the slaughter room, but instead of entering the open doorway to the slaughter room, she, for some unexplained reason, stepped into the unguarded elevator shaft. She fell down the shaft to the basement and was killed.

1. Trespassers and mere licensees take the premises as they find them. The owner of premises is not under the same obligation to trespassers and licensees as he is to those who are upon the premises by his express or implied invitation. To the latter he owes a duty to have his premises in a reasonably safe condition and to give warning of latter or concealed defects. To the former he owes no such duty, but as to them he is under obligation not willfully and intentionally to injure them, or, as it is sometimes expressed, not to injury them after becoming award of their presence. Of course, he must exercise reasonable care, after becoming aware of their presence, not to injure them by any affirmative act or force set in motion. Averch v. Johnston, 90 Colo. 321, 9 P.2d 291; Windsor Reservoir & Canal Co. v. Smith, 82 Colo. 497, 261 P. 872; Reardon v. Thompson, 149 Mass. 267, 21 N.E. 369; Vaughan v. Transit Development Co., 222 N.Y. 79, 118 N.E. 219; Fitzpatrick v. Cumberland Glass Mfg. Co., 61 N. J. Law, 378, 39 A. 675; Gibson, Parish & Co. v. Sziepienski, 37 Ill.App. 601; Dixon v. Swift, 98 Me. 207, 56 A. 761; Indian Refining Co. v. Mobley, 134 Ky. 822, 121 S.W. 657, 24 L.R.A. (N. S.) 497; Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973, 20 L.R.A. 714, 39 Am.St.Rep. 436; Muench v. Heinemann, [93 Colo. 279] 119 Wis. 441, 96 N.W. 800; Lackat v. Lutz, 94 Ky. 287, 22 S.W. 218; 20 R.C.L. pp. 55, 59, 60; Note, 24 L.R.A. (N. S.) 497.

2. The city ordinance referred to above does not change the rule. In the absence of such ordinance, it would be for the jury to determine whether or not it was negligence to equip the elevator shaft with gates that did not close automatically. The effect of the ordinance is to take that question away from the jury and make a failure to equip the elevator...

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16 practice notes
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...on Lunt v. Post Printing & Publishing Co., 48 Colo. 316, Page 313 110 P. 203 (1910), and Gotch v. K. & B. Packing & Provision Co., 93 Colo. 276, 25 P.2d 719 Lunt defined a common law licensee and a common law invitee and the duties owed to each. 10 This case involved a fireman 11 who answer......
  • Trimble v. Spears, No. 40786
    • United States
    • United States State Supreme Court of Kansas
    • January 25, 1958
    ...under a like duty to the invitee to give him warning of any known latent or concealed defects. Gotch v. K. & B. Packing & Provision Co., 93 Colo. 276, 25 P.2d 719, 89 A.L.R. 753; Rudolph v. Elder, 105 Colo. 105, 95 P.2d 'We have also held that in order to establish a defendant's liability o......
  • SW v. Towers Boat Club, Inc., No. 11CA0935.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 26, 2012
    ...the person was a licensee, the owner had a duty not to willfully or wantonly injure the person. Gotch v. K & B Packing & Provision Co., 93 Colo. 276, 278, 25 P.2d 719, 720 (1933), overruled [ by Mile High Fence, 175 Colo. 537, 489 P.2d 308]. An even higher standard was owed if the person wa......
  • Gallegos v. Phipps, No. 88SA141
    • United States
    • Colorado Supreme Court of Colorado
    • September 18, 1989
    ...the person was a licensee, the owner had a duty not to willfully or wantonly injure the person. Gotch v. K & B Packing & Provision Co., 93 Colo. 276, 278, 25 P.2d 719, 720 (1933), overruled, Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971). An even higher standard was owe......
  • Request a trial to view additional results
16 cases
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...on Lunt v. Post Printing & Publishing Co., 48 Colo. 316, Page 313 110 P. 203 (1910), and Gotch v. K. & B. Packing & Provision Co., 93 Colo. 276, 25 P.2d 719 Lunt defined a common law licensee and a common law invitee and the duties owed to each. 10 This case involved a fireman 11 who answer......
  • Trimble v. Spears, No. 40786
    • United States
    • United States State Supreme Court of Kansas
    • January 25, 1958
    ...under a like duty to the invitee to give him warning of any known latent or concealed defects. Gotch v. K. & B. Packing & Provision Co., 93 Colo. 276, 25 P.2d 719, 89 A.L.R. 753; Rudolph v. Elder, 105 Colo. 105, 95 P.2d 'We have also held that in order to establish a defendant's liability o......
  • SW v. Towers Boat Club, Inc., No. 11CA0935.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 26, 2012
    ...the person was a licensee, the owner had a duty not to willfully or wantonly injure the person. Gotch v. K & B Packing & Provision Co., 93 Colo. 276, 278, 25 P.2d 719, 720 (1933), overruled [ by Mile High Fence, 175 Colo. 537, 489 P.2d 308]. An even higher standard was owed if the person wa......
  • Gallegos v. Phipps, No. 88SA141
    • United States
    • Colorado Supreme Court of Colorado
    • September 18, 1989
    ...the person was a licensee, the owner had a duty not to willfully or wantonly injure the person. Gotch v. K & B Packing & Provision Co., 93 Colo. 276, 278, 25 P.2d 719, 720 (1933), overruled, Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971). An even higher standard was owe......
  • Request a trial to view additional results

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