Niernberg, by Niernberg v. Gavin

• Decision Date: 30 October 1950
• Docket Number: No. 16559,16559
• Citation: 123 Colo. 1,224 P.2d 215
• Parties: NIERNBERG, by NIERNBERG et al. v. GAVIN.
• Court: Colorado Supreme Court

Page 215

224 P.2d 215

123 Colo. 1

NIERNBERG, by NIERNBERG et al. v.GAVIN.

No. 16559.

Supreme Court of Colorado, en Banc.

Oct. 30, 1950.

Walter F. Scherer, Denver, for plaintiffs in error.

Pershing, Bosworth, Dick & Dawson, Winston S. Howard, and Arthur K. Underwood, Jr., all of Denver, for defendant in error.

STONE, Justice.

This is an action for damages resulting from injuries suffered by six-year-old plaintiffMichael Niernberg on premises of defendant Gavin.The record discloses that at the time of the accident defendant was engaged in cleaning a fifty-gallon steel tar barrel.For that purpose he stood the barrel on its open end close to the rear line of a vacant lot owned by him, raised one side of the barrel by use of pieces of wood so that it stood at an angle and built a fire under it for the purpose of melting the tar.Plaintiff Michael and two young companions, who had been playing in the adjacent alley, were attracted by the tar which was flowing from the barrel and busied themselves dipping sticks in it for the purpose of making torches.While so engaged Michael either stumbled or lost his balance and stuck his hand in the hot tar, causing the injuries here involved.The evidence is undisputed that defendant stood near the barrel, saw the children playing, and repeatedly ordered them to go away, and that he'kicked the fire out' before plaintiff's injury.

By stipulation, the case was tried to the court and, after plaintiffs had completed the presentation of their evidence, defendant moved for judgment on the ground that plaintiffs had failed to prove a claim.The motion was sustained and judgment of dismissal entered, to which error is here specified.

It first is contended that the evidence established an attractive nuisance.In this we think counsel is mistaken.Among other reasons, as said in King v. Simons Brick Co., 52 Cal.App.2d 586, 126 P.2d 627, 629, 'It is only in those cases where a dangerous trap on premises otherwise safe is concealed from view or when an artificial device, attractice to children, is left exposed and upon premises accessible, open and unguarded that the owner is liable for damages resulting by reason of injuries to children who are attracted to the premises by such contrivances.'See, also, Anderson v. Reith-Riley Const. Co., 112 Ind.App. 170, 44 N.E.2d 184;Schock v. Ringling Bros., etc., 5 Wash.2d 599, 105 P.2d 838.In the present case no trap or unguarded device is involved.However, this question appears to be academic, since the attractive-nuisance doctrine is only an exception to the general rule limiting the liability of landowners as to trespassers, and, as we have held in Krause v. Watson Brothers Transp. Co., 119 Colo. 73, 200 P.2d[123 Colo. 4] 387, without recourse to that doctrine the owner of premises is liable for injuries resulting from active negligence to trespassers whose presence is known, or in the...