Oliver v. City of Denver

• Citation: 13 Colo.App. 345,57 P. 729
• Parties: OLIVER v. CITY OF DENVER et al.
• Decision Date: 15 June 1899
• Court: Court of Appeals of Colorado

57 P. 729

13 Colo.App. 345

OLIVER v. CITY OF DENVER et al.

Court of Appeals of Colorado

June 15, 1899

Error to district court, Arapahoe county.

Action by W.T. Oliver against the city of Denver and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Betts &amp Rinkle, for plaintiff in error.

J.M Ellis and Guy Le R. Stevick, for defendant in error the city of Denver.

Thomas H. Hood, for defendant in error Lucy W.S. Jerome.

WILSON J.

This was an action to recover damages for personal injuries claimed to have been received by plaintiff, and to have been caused by the negligence of the defendants in placing and allowing obstructions upon a certain sidewalk in the city of Denver, and in a failure to have the street lighted at the place where the accident occurred. Both the city and Mrs Jerome, the owner of the premises abutting on the street at the point where the accident occurred, were made defendants. Each of the defendants demurred to the complaint of plaintiff on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and, plaintiff electing to stand by his complaint, judgment was entered in favor of defendants. All that portion of the complaint which it is necessary to consider is as follows: "That the defendant Lucy W.S. Jerome was at the times hereinafter mentioned the owner of certain premises situate at the northeast corner of the intersection of two certain public streets in the city of Denver, to wit, Lincoln avenue and Eighteenth avenue, and which said premises abutted upon both said streets, and which said streets were common and public thoroughfares. That for a long time prior to the accident hereinafter set forth, and during more than two years, the said Jerome wrongfully and negligently erected and placed and maintained, or caused to be erected and placed and maintained, at the said northeast corner of the intersection of said two streets next to and adjoining her said premises, and upon the sidewalks of said streets, certain iron guards or railings, about one foot high above the surface of the sidewalk, and extending several feet on each side of the stone walk or flagging at the intersection of said sidewalk, and thereby at said point restricting the use of said sidewalk to the width of the stone flagging, and being four feet; and the said guards or railing so placed were an obstruction to the use of the sidewalk at said point, and rendered and caused the said sidewalk to be and remain in an unsafe and dangerous condition, especially in the nighttime, and was in such condition on the night of October 26, 1895. (4) That the defendant the city of Denver, and its officers and agents, had full knowledge of the unsafe and dangerous condition of said sidewalk, or by the use of ordinary prudence and diligence could have ascertained same, but carelessly and negligently allowed the said sidewalk to be and remain in said unsafe and dangerous condition, and carelessly and negligently allowed the said sidewalk and said street intersection to remain dark and without any light, and has allowed same to be in such condition for several years last past, and same was in such unsafe and dangerous condition, and entirely unlighted and dark, on the night of October 26, 1895, as aforesaid. (5) That the plaintiff on the said night of October 26, 1895, and at about seven p.m. of that day, was lawfully and rightfully traveling and passing on and over said sidewalk at said point, while said sidewalk was dark and unlighted, and in said unsafe and dangerous condition as aforesaid, and was wholly unaware of said obstruction, and, without fault or negligence on his part, ran against and tripped against and upon, and fell heavily over and upon, said iron guard or railing or obstruction, and upon the stone flagging of the sidewalk, whereby he received great bodily injury, and sustained bruises in and about his head, body, and arms, and one wrist was broken, and he was made sick, sore, and lame for a long time, and unable to attend to or perform his business for about three months, and is still suffering from said injuries so received, and was compelled to expend about $250 for medical attendance and nursing, all to his damage of five thousand ($5,000)."

It will be seen that the negligence of defendants alleged in the complaint, and upon which plaintiff bases his right to recover, is the obstruction of the sidewalk and the failure to light the street at this point. The facts stated show that the alleged obstruction was without the constructed sidewalk; but it is not shown whether it was within, without, or on the line of the sidewalk area, which latter condition might materially affect the duty and corresponding liability of the city. The city charter of Denver gives the city power to provide for lighting its streets, but it nowhere specially requires it to exercise this power. The exercise of the power being discretionary, a failure in this respect cannot be construed as actionable negligence. It would be, of course, a matter of great...