Krause v. Watson Bros. Transp. Co., Inc.

• Decision Date: 29 November 1948
• Docket Number: 15975.
• Citation: 119 Colo. 73,200 P.2d 387
• Parties: KRAUSE et ux. v. WATSON BROS. TRANSP. CO., Inc., et al.
• Court: Colorado Supreme Court

200 P.2d 387

119 Colo. 73

KRAUSE et ux. v. WATSON BROS. TRANSP. CO., Inc., et al.

No. 15975.

Supreme Court of Colorado, en Banc.

November 29, 1948

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Action by Mr. and Mrs. Ralph Krause against Watson Brothers Transportation Company, Inc., a corporation, and James Floyd Lawson to recover for death of plaintiffs' daughter. To review an adverse judgment, the plaintiffs bring error.

Judgment reversed and case remanded.

Rogers Bruno & Rogers, of Denver, for plaintiffs in error.

H Berman, of Denver, for defendants in error.

STONE, Justice.

Plaintiffs in error sought to recover damages from defendants in error for asserted negligence of the latter in connection with the operation of a motor truck which resulted in the death of their six year old daughter, Loretta Krause, at the loading dock of defendant corporation. At the close of plaintiffs' case the court upon motion by defendants for dismissal, directed the jury to return a verdict finding the issues joined for the defendants, and rendered judgment in accord therewith. The question here involved is the sufficiency of the evidence to require submission of the case to the jury.

Plaintiffs offered evidence in brief as follows: Loretta, on the afternoon of the fatality, joined her brothers Ralph, aged nine, and Robert, aged seven, at play in a neighboring ball park, and from there the three children crossed the street to the warehouse and adjoining loading docks operated by the defendant corporation; they had been there many times Before to play, the last time being only a few days Before ; the dock floor was so constructed as to be level with the floor of the company trailers and about three feet from the ground there were men at work on the dock nearby; Ralph climbed upon the dock and Robert climbed upon a trailer which was backed up to the dock and about three feet from it, and the two of them were attempting to lift Loretta upon the trailer when defendant Lawson, an employee of defendant corporation, who had been working on the docks, came out of the warehouse, crossed the dock to a company tractor which stood in front of the trailer, then drove the tractor forward until in proper line and backed it against the trailer, hitting it, as is customary, with sufficient force to engage the coupling pin; this resulted, as frequently happened, in driving the rear end of the trailer against the dock, where it crushed Loretta's body between them. There was further evidence that the dock and trucks were near and plainly visible from the street and in part unfenced, and that children played about the docks 'all the time.' Defendant Lawson testified that he did not notice any children playing around there as he went to hook up the trailer, but that he had seen children playing there; that he had never chased children away from there because it was none of his business, but that he had 'seen foremen up there chase them away continually.' Defendant Lawson's helper Greenfield, at the time of the accident, was standing on the east side of the trailer waiting to roll up the dollies on the trailer after the coupling was completed. Another witness testified that she lived directly across the street in an upstairs apartment; that from her window she could view the defendant corporation's docks; that she was watching the Krause children at play over there, saw one of the boys trying to pull Loretta up in the trailer, heard one of the boys cry 'look out!' and saw the accident; that one or two men had been working on the dock prior to the accident within about seven feet from where the Krause boy stood.

We have here, not the question of whether defendants left unguarded and open to trespassing children property or instrumentalities which are dangerous per se, but rather the question whether defendants exercised reasonable care, in carrying on their activities, to guard the safety of trespassing children if any, whose presence was known or should have been anticipated. It is a question of active, not passive, negligence. Annotation 156 A.L.R., p. 1226.

The children were trespassers, but even as to trespassers, we have refused to follow without exception the narrow rule that the only obligation owed to them is to abstain from wilful, wanton or reckless conduct. The owner of premises is liable for injuries resulting from active negligence to trespassers whose presence is known or, in the exercise of care, ought to be known.

In Catlett v. Colorado & Southern Ry. Co., 56 Colo 463, 139 P. 14, employees of a sugar factory had been accustomed, for some years, to walk on a path which crossed defendant's...