Griffith v. City and County of Denver

• Citation: 55 Colo. 37,132 P. 57
• Parties: GRIFFITH v. CITY AND COUNTY OF DENVER.
• Decision Date: 07 April 1913
• Court: Supreme Court of Colorado

132 P. 57

55 Colo. 37

GRIFFITH v. CITY AND COUNTY OF DENVER.

Supreme Court of Colorado

April 7, 1913

Rehearing Denied May 5, 1913.

Error to District Court, City and County of Denver; Harry C Riddle, Judge.

Action by Noah H. Griffith against the City and County of Denver. Judgment for defendant, and plaintiff brings error. Affirmed.

H. N Hawkins and E. T. Wells, both of Denver, for plaintiff in error.

H. A Lindsley and F. W. Sanborn, both of Denver, for defendant in error.

BAILEY J.

The suit is by Noah H. Griffith, to recover damages for personal injuries sustained through falling upon a sidewalk on Lawrence, between Sixteenth and Seventeenth streets, in the city of Denver. The fall is attributed to the fact that the sidewalk where it occurred was made of concrete, with a surface so smooth and slippery and with so great an incline that persons walking thereon, though using due care, were liable to slip, the inclination of the walk toward the street being greater than authorized by ordinance. That because of such construction the sidewalk in question had been and was insecure and dangerous, particularly in the winter time, and during seasons of snow, sleet and ice; so that at such times, and especially when covered by melting snow, persons walking upon it were liable, by reason of its inclination and smooth and polished surface, to slip and fall. The walk had been thus maintained for several years prior to the accident.

The defendant, for answer to the complaint, admitted knowledge and notice of the condition and manner of construction of the walk, but alleged that it was a reasonably safe one, and conformed in general to that class of walks in use throughout the city. For an affirmative defense, the defendant alleged that the plaintiff's injury, if any, was caused by his own negligence. For reply, the plaintiff denied that the sidewalk in question was constructed in a reasonably safe manner, or that the injury of the plaintiff was due to negligence on his part.

Under the pleadings the sole and only issue was whether the city was negligent in maintaining a sidewalk in the condition, and constructed after the manner, of the one of which complaint is made. A number of expert witnesses testified on each side, describing the walk in detail, some affirming that it was not of proper construction, and others directly the contrary. Witnesses testified that the surface was exceedingly smooth, polished, slippery and dangerous. Its alleged inclination was shown, to wit, a fall of about one-half an inch to the foot, instead of three-tenths of an inch, as limited by ordinance. The jury made personal inspection of the walk. Plaintiff offered to show by numerous witnesses, who had previously occupied the premises in front of which the accident occurred, that from the time of the construction of the walk repeated accidents had happened to pedestrians from falling upon it. This testimony was offered to show negligence on the part of the city. There was no issue upon the question of knowledge and notice, and therefore no testimony to that point was necessary or competent. The court below held that such testimony was inadmissible to establish negligence, for which purpose alone it could be offered, and therefore excluded it. The jury returned a verdict for the defendant, and a judgment of dismissal followed. Plaintiff brings the case here on error, seeking a reversal.

The main error alleged is the rejection of testimony of previous mishaps to others by falling on this walk, although there is some complaint made of the instructions given.

The purpose of the testimony of other accidents was to show that the walk was unsafe, and thus fix negligence on the city for maintaining it in such condition. To give any probative force to the fact that others had fallen on the walk prior to the accident in question, it must have been first shown that these independent happenings occurred under substantially like circumstances and conditions, both as to the walk and the persons who fell upon it, as did the one over which this contest is waged. Nothing of that sort was attempted, and for this reason alone, if for no other, the testimony was properly rejected because, in that state of the record, clearly irrelevant. Under such circumstances, we fail entirely to apprehend how such testimony could even tend to show the condition of the walk for safety or otherwise. It could not in any sense illustrate the main issue, for it is common knowledge that persons may, and frequently do fall, in passing over a perfectly safe and properly constructed walk, through their own fault, while others, in going over a known dangerous one, exercising ordinary care, do so in safety. The condition of the walk and the method of construction had been fully described to the jury, by various expert witnesses; it had been inspected by that body, and the testimony offered could and nothing whatever as to the physical condition of the walk.

Moreover, the question is stare decisis in this jurisdiction. It was expressly determined in Diamond Rubber Co. v. Harryman, 41 Colo. 415, 92 P. 922, that evidence of collateral facts, which are incapable of aiding in the determination of the main fact, should be excluded, because such evidence tends to draw the minds of the jurors from the real issue and excite, prejudice, mislead and confuse them. It was stated, in substance, in that case, that the character of the obstruction was susceptible of proof, such proof was made, and whether or not the object there under consideration was dangerous was to be determined by the jury from these facts, and not from whether others had passed along the sidewalk where it was located without being injured, or had sustained injury. A precisely similar situation is now before us, and the opinion in that case is controlling here. Indeed, we have neither the purpose nor inclination to overturn or modify it. The character of the construction and the condition of the walk here involved was susceptible of proof, and such proof was before the jury. It was for the jury, from the facts thus submitted, to determine whether the walk was reasonably safe. The condition and character of the walk, whether safe or dangerous, could not be established by showing that some passed over it safely, while others fell upon it and were injured.

Bearing in mind that the testimony of former accidents was offered for the purpose of...