Parker v. City and County of Denver

• Citation: 262 P.2d 553,128 Colo. 355
• Decision Date: 19 October 1953
• Docket Number: No. 16830,16830
• Parties: , 37 A.L.R.2d 1177 PARKER v. CITY AND COUNTY OF DENVER.
• Court: Supreme Court of Colorado

Page 553

262 P.2d 553

128 Colo. 355, 37 A.L.R.2d 1177

PARKER v. CITY AND COUNTY OF DENVER.

No. 16830.

Supreme Court of Colorado.

Oct. 19, 1953.

Darwin D. Coit, Denver, for plaintiff in error.

Leonard M. Campbell, Duncan J. Cameron, Denver, for defendant in error.

ALTER, Justice.

Frances I. Parker brought an action against the City and County of Denver to recover a judgment for damages allegedly sustained by her by reason of an accident on one of the public streets of that city. At the conclusion of all the evidence the court granted defendant's motion for a directed verdict and entered judgment accordingly. Plaintiff is here by writ of error seeking a reversal of the judgment.

The court, in granting defendant's motion for a directed verdict, stated:

'The motion of the City and County of Denver for a directed verdict is granted, the Court finding as a matter of law that the defect in this sidewalk at the time of the accident on December 10, 1949, was, in fact, less than one inch, and as such was so slight as to impose no duty upon the City to either discover or to correct the same.

'Accordingly, the Court will prepare the verdict for the signature of one of the jurors.'

Plaintiff's evidence may be summarized thusly: On the night of December 10, 1949, at about 7 o'clock P. M., plaintiff was walking on the sidewalk near 1216 York Street when, by reason of a crack and rise of one inch or more in the public sidewalk, she tripped on said elevation and fell, resulting in serious and permanent bodily injuries. Witnesses for plaintiff testified that the said walk was constructed of concrete blocks and that at the place where plaintiff was injured, the elevation of one block over an ajoining block varied from one and a half to two inches on one side thereof and tapered to about one inch on the other side, and that this condition of the sidewalk had remained for some considerable period of time prior to the date of the accident. Plaintiff testified that she was employed as a school teacher prior to the accident and had occasion to travel over this particular sidewalk frequently.

Defendant's evidence as to the rise or elevation in the sidewalk, by actual measurement with a ruler, was that it was not over one inch or slightly less than an inch, and at the exact center of the walk was three-fourths of an inch.

At the conclusion of all of the evidence, and upon motion of defendant as hereinbefore stated, the court directed a verdict, and in connection therewith stated that it found, as a matter of law, that the defect in the sidewalk was less than one inch. There was competent evidence that the defect in the sidewalk at or near the place where the alleged injuries occurred was one and a half to two inches in elevation, and it is well settled law in this jurisdiction that a party making a motion for a direction verdict admits the truth of the adversary's evidence and every favorable inference of fact which may be legitimately drawn therefrom. It also is equally well settled in this jurisdiction that negligence results from a failure to do what an ordinarily careful and prudent person would have done under the circumstances of the case. It is not here contended that defendant is an insurer of the safety of pedestrians on its sidewalks, nor that every defect or unevenness therein creates a liability on its part if an accident occurs thereon, but it is plaintiff's position that the defect here, under the evidence, was such that representatives of defendant could reasonably anticipate danger from its existence and that reasonably prudent men might honestly reach different conclusions as to defendant's liability. This being so, it is plaintiff's contention that the trial court erred in granting defendant's motion for a directed verdict for here it is contended that the evidence presented facts for the jury's determination.

Our court in the case of City of Denver v. Hyatt, 28 Colo. 129, 63 P. 403, held that a failure on the part of the city to exercise reasonable care to keep its sidewalks in reasonably safe condition for travel was negligence, and it also held that its failure to so maintain its sidewalks would render it liable for damages to a pedestrian thereon, who in the exercise of ordinary care and diligence, was injured by reason of the defective sidewalk. The decision in City of Denver v. Hyatt, supra, remained the law in this jurisdiction until our decision in the case of City and County of Denver v. Burrows, 76 Colo. 17, 227 P.840, 841.

In City and County of Denver v. Burrows, supra, the sidewalk was constructed of cement blocks, and an unevenness occurred therein so that 'One of these blocks was so elevated that while one end thereof was even with the adjoining block, the other end was 1 5/8 inches higher. The elevation was 1 3/8 inches at the point where, according to testimony, the plaintiff struck her toe against the edge of the raised block.' It was in that case held: 'In our opinion, the defect involved in the instant case was such that, as a matter of law, it did not render the sidewalk not reasonably safe. It was a slight defect from which danger was not reasonably to be anticipated.' We therein cited Northrup v. City of Pontiac, 159 Mich. 250, 123 N.W. 1107, and also Beltz v. City of Yonkers, 148 N.Y. 67, 42 N.E. 401, where inequalities of two inches or less in a sidewalk were held, as a matter of law, not to render it reasonably unsafe for public travel.

Subsequently, in City of Colorado Springs v. Phillips, 76 Colo. 257, 230 P. 617, where the obstruction in a sidewalk was 'perhaps two inches', we held, based on the opinion in City and County of Denver v. Burrows, supra, that a 'defect of this kind was, as a matter of law, insufficient to show lack of reasonable care in a municipal corporation'.

It should be noted that the election with which we were concerned in the Burrows case was one and three-eighths inches while the projection in City of Colorado Springs v. Phillips, supra, was two inches. If two inches was, as a matter of law, not negligence because of our holding in the Burrows case, supra, that one and three-eighths inches was, as a matter of law, not negligence, then five-eighths of an inch can be disregarded on the authority of these two opinions, and it is apparent therefrom that the next case, with a two and five-eighths inch projection, would, consistent therewith, be, as a matter of law, not actionable negligence, and progressively, there would be no such thing as negligence on the part of the city in the maintenance of its sidewalks.

In Nelson v. City and County of Denver, 109 Colo. 113, 122 P.2d 252, 253, where the trial court had granted the city's motion for judgment on the pleadings, our court held that error was committed. In that action it was alleged that plaintiff was injured as a result of an accident on a cement sidewalk where one slab of the sidewalk 'was raised approximately two inches above the level of the adjoining concrete slab', and in support of its motion for judgment on the pleadings, the city relied on our opinion in City and County of Denver v. Burrows, supra. With reference thereto we said:

'We did not hold, and if we had, the holding would have been dictum, that we would follow such cases further than as to an inequality of one and three-eighths inches. Furthermore, in that case we were speaking in the light of the evidence as to all the facts and circumstances of the case, for the cause had been tried, and presumably the evidence was in the record before us. The general and, as we think, the controlling principle in such cases is set forth in our opinion in the case as follows: 'Mere irregularity and inequality of the surface of a way does not of itself make a city liable for damages sustained at such a place. A municipality is held only to the maintenance of a reasonably safe sidewalk. Griffith v. Denver, 55 Colo. 37, 44, 132 P. 57; Pueblo v. Smith, 57 Colo. 500, 143 P. 281. A defect in a street or sidewalk, to be actionable, must be such that a reasonably prudent person would anticipate danger from its existence. Denver v. Hyatt, 28 Colo. 129, 63 P. 403. Sometimes this is a question for the jury, as in Griffith v. Denver, supra, and sometimes the defect is such that, as a matter of law, it is not actionable, as was the case in Pueblo v. Smith, supra. Each case must be determined on the facts in evidence. (City and County of) Denver v. Hatter, 68 Colo. 194, 188 P. 728.'

'With the principle thus announced in mind, we think it an unreasonable construction of the opinion to say that it lays down the proposition that, whether permitting an inequality or raised block in a sidewalk, constitutes actionable negligence may be determined simply with a foot rule. * * *'

As was pointed out in Nelson v. City and County of Denver, supra, no definite or mathematical rule can be laid down as to the depth of a depression or elevation in a sidewalk necessary to constitute actionable negligence against a municipality. We think it clear from the opinion in that case that the extent of the depression or elevation in a street which will relieve the city of actionable negligence in its maintenance must vary with other circumstances as we therein said. The other circumstances which much be taken into consideration in all of these cases is the amount of travel on the sidewalk, the location of the depression or elevation, the nature of the area, and other circumstances which may properly be considered by a jury in the determination of the case. There may be instances in which the court, with judicial propriety, may determine that the defect in the sidewalk is so slight that actionable negligence becomes a question of law, but there is, in almost all instances, a shadow zone where the facts are such that the question must be submitted to the jury, and it then becomes its duty to take into consideration all of the facts and circumstances in connection with the...