Kopplekom v. Colorado Cement-Pipe Co.

• Decision Date: 13 May 1901
• Parties: KOPPLEKOM et ux. v. COLORADO CEMENT-PIPE CO.
• Court: Colorado Court of Appeals

64 P. 1047

16 Colo.App. 274

KOPPLEKOM et ux. v. COLORADO CEMENT-PIPE CO.

Court of Appeals of Colorado

May 13, 1901

Error to district court, Arapahoe county.

Action by Michael Kopplekom and wife against the Colorado Cement-Pipe Company. From a judgment in favor of defendant plaintiffs bring error. Reversed.

C.M. Kendall, T.E. Watters, and Win Wylie, for plaintiffs in error.

WILSON P.J.

This suit was brought to recover damages on account of the death of a minor child of the plaintiffs, alleged to have been caused through the negligence of the defendant company. A demurrer was interposed to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action; and, this being sustained, the plaintiffs stood upon their complaint, and brought the case here for review. The complaint substantially alleges that the defendant, in the prosecution of its business as a manufacturer of cement pipe, was possessed of certain lots or parcels of land in a thickly-populated portion of the city of Denver, and upon a portion thereof had stored a large quantity of cement piping; that said parcel of land adjoined the public streets, and there was no fence or guard dividing the same therefrom, and that the same, and the piping stored thereon, was in constant view from the street; that among the pieces of piping so exposed, and near to the public highway was one of the diameter of 4 1/2 feet, only 2 feet in length and of the weight of from 500 to 700 pounds; that said piece was at the time of the accident, and for a long time previous thereto had been, lying on its side in such manner that it could be rolled easily over the surface of the ground, and that by reason of its great diameter, excessive weight, and short length was, when so lying, topheavy, and easily turned from its side to its end, and that the piping so exposed was a temptation to children who had not arrived at years of discretion and judgment to play therewith, and that children did frequently play with it, and that it was, by reason of the facts stated, a dangerous instrument, all of which the defendant well knew; that upon the date of the accident in question, while the child of plaintiffs, in company with 8 or 10 others, all residing in the immediate neighborhood, and all too young to realize the danger that they incurred, was playing with this short and heavy piece of piping, the son of plaintiffs being inside of the piping and being rolled over the surface by the other children, the piping suddenly fell from its side to its end, catching his body underneath, and inflicting injuries which caused almost immediate death.

The defendant making no appearance, we have not been favored by its counsel with their views as to the particular defects in the complaint which, in their opinion, render it insufficient. Whether they claim it to have appeared upon the face of the complaint that the plaintiffs did not have a cause of action, or that it failed to state some matter necessary to have been stated in order to have constituted a cause of action, we are not advised. We have made as thorough an examination of the complaint as we could without the critical assistance of counsel, and, in our opinion, it does state a cause of action, and was not subject to demurrer on the general ground of its insufficiency. That the plaintiffs would have a right to recover if the allegations of the complaint be accepted as true, or should be sustained upon trial, is, we think, without question. The case comes clearly within the principles laid down by the United States supreme court in the Turntable Case, which has been universally accepted as authority. Railroad Co. v Stout, 17 Wall. 657, 21 L.Ed. 745. A few of the well-considered and leading cases which have affirmed and followed the doctrine there announced are Railway Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434; Powers v. Harlow, 53 Mich. 507, 9 N.W. 257; Car Co. v. Cooper, 60 Ark. 545, 31 S.W. 154; Biggs v. Barb-Wire Co., 60 Kan. 217, 56 P. 4; Schmidt v. Cook (Sup.) 23 N.Y.S. 799; Keffe v. Railway Co., 21 Minn. 207; Cooley, Torts, p. 303, c. 10. The complaint alleges the danger in leaving the piping exposed as it was, and in fact it may be said, as was said in the Turntable Case, the fact of the fatal injuries being received therefrom by the son of the plaintiffs in this case shows the danger. It also alleges that this...