Phipps v. Mitze, 15834.

Docket Nº15834.
Citation180 P.2d 233, 116 Colo. 288
Case DateApril 28, 1947
CourtSupreme Court of Colorado

180 P.2d 233

116 Colo. 288

PHIPPS et al.
v.
MITZE.

No. 15834.

Supreme Court of Colorado, en Banc.

April 28, 1947


Error to District Court, Adams County; Osmer E. Smith, Judge.

Death action by Charles F. Phipps and Lillie Phipps against W. M. Mitze. To review a judgment directing a verdict in favor of the defendant, plaintiffs bring error. Judgment affirmed. [180 P.2d 234]

[116 Colo. 289] O. Otto Moore, of Denver, for plaintiffs in error.

Grant E. McGee and Charles A. Murdock, both of Denver, for defendant in error.

JACKSON, Justice.

Plaintiffs in error brought suit for the death of their son, aged nine, for damages in the statutory maximum of $5,000--allowed for death by wrongful act--against defendant in error. The latter was the owner of, and occupied, the land upon which was located a small body of water in which the boy was drowned while trespassing on defendant's land.

In a trial to a jury plaintiffs introduced evidence which showed that their son, along with his older sister, aged eleven, and other children, entered defendant's land and in the course of a 'hike' came upon two ponds which up to that time they did not know existed. The ponds were artificial, having been created by throwing dams across an arroya. Some of the children stopped at the smaller pond to play, but the nine year old son and the eleven year old daughter of plaintiffs waded into the larger pond. They had a stick with which to measure the depth of the water, and when they had proceeded to a point where the water was of greater depth they discussed the advisability of proceeding farther. The girl was inclined to draw back, but the boy proceeded, encountered a step-off, or ledge, from which he was precipitated into water which exceeded his height in depth, and was drowned.

Plaintiffs, in their complaint, alleged: 'That the defendant [116 Colo. 290] well knew of the hidden danger caused by the existence of said trench in said reservoir, and the said defendant well knew that children, including the said Doyle Charles Phipps were in the habit of wading in said reservoir, and in fact said defendant permitted them so to do.' Their evidence, however, did not wholly support the foregoing allegation. It included the testimony of one 15 year old boy who stated that he had frequented the reservoir site a number of times, and that he had been warned by the sheriff, at the instance of the landowner, and also by the landowner to stay away from it. Another boy of the same age stated that he had visited the ponds and had been warned personally by the landowner to keep away...

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12 practice notes
  • Vigil v. Franklin, No. 03SC479.
    • United States
    • Colorado Supreme Court of Colorado
    • November 30, 2004
    ...sustained from diving into shallow water. Smith, 726 P.2d at 1125, Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036 (1956), Phipps v. Mitze, 116 Colo. 288, 292, 180 P.2d 233, 235 (1947) (danger of reservoir was open and apparent therefore landowner not liable for child's Vigil testified he was ......
  • Plotzki v. Standard Oil Co. of Ind., No. 28638
    • United States
    • Indiana Supreme Court of Indiana
    • June 2, 1950
    ...of nature without adding any new dangers. Anderson v. Reith-Reilly Construction, supra; Peters v. Bowman, supra; Phipps v. Mitze, 1947, 116 Colo. 288, 180 P.2d 233. Appellant takes the position that sharp drops and deep holes in an artificially constructed pool constitute traps and hidden o......
  • S.W. v. Towers Boat Club, Inc., Supreme Court Case No. 12SC391
    • United States
    • Colorado Supreme Court of Colorado
    • December 23, 2013
    ...by children and as a matter of law, therefore were not attractive nuisances.” 100 Colo. at 361, 67 P.2d at 630. In Phipps v. Mitze, 116 Colo. 288, 291, 180 P.2d 233, 234 (1947), the court found that the Restatement of Torts, section 339 [Artificial Conditions Highly Dangerous to Trespassing......
  • Martinez v. C. R. Davis Contracting Co., No. 7286
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 13, 1964
    ...known by children, even of a tender age. Melendez v. City of Los Angeles, 1937, 8 Cal.2d 741, 68 P.2d 971; Phipps v. Mitze, 1947, 116 Colo. 288, 180 P.2d 233; McCall v. McCallie, 1933, 48 Ga.App. 99, 171 S.E. 843; Heimann v. Kinnare, 1901, 190 Ill. 156, 60 N.E. 215, 52 L.R.A. 652; Plotzki v......
  • Request a trial to view additional results
12 cases
  • Vigil v. Franklin, No. 03SC479.
    • United States
    • Colorado Supreme Court of Colorado
    • November 30, 2004
    ...sustained from diving into shallow water. Smith, 726 P.2d at 1125, Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036 (1956), Phipps v. Mitze, 116 Colo. 288, 292, 180 P.2d 233, 235 (1947) (danger of reservoir was open and apparent therefore landowner not liable for child's Vigil testified he was ......
  • Plotzki v. Standard Oil Co. of Ind., No. 28638
    • United States
    • Indiana Supreme Court of Indiana
    • June 2, 1950
    ...of nature without adding any new dangers. Anderson v. Reith-Reilly Construction, supra; Peters v. Bowman, supra; Phipps v. Mitze, 1947, 116 Colo. 288, 180 P.2d 233. Appellant takes the position that sharp drops and deep holes in an artificially constructed pool constitute traps and hidden o......
  • S.W. v. Towers Boat Club, Inc., Supreme Court Case No. 12SC391
    • United States
    • Colorado Supreme Court of Colorado
    • December 23, 2013
    ...by children and as a matter of law, therefore were not attractive nuisances.” 100 Colo. at 361, 67 P.2d at 630. In Phipps v. Mitze, 116 Colo. 288, 291, 180 P.2d 233, 234 (1947), the court found that the Restatement of Torts, section 339 [Artificial Conditions Highly Dangerous to Trespassing......
  • Martinez v. C. R. Davis Contracting Co., No. 7286
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 13, 1964
    ...known by children, even of a tender age. Melendez v. City of Los Angeles, 1937, 8 Cal.2d 741, 68 P.2d 971; Phipps v. Mitze, 1947, 116 Colo. 288, 180 P.2d 233; McCall v. McCallie, 1933, 48 Ga.App. 99, 171 S.E. 843; Heimann v. Kinnare, 1901, 190 Ill. 156, 60 N.E. 215, 52 L.R.A. 652; Plotzki v......
  • Request a trial to view additional results

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