Phipps v. Mitze
| Decision Date | 28 April 1947 |
| Docket Number | 15834. |
| Citation | 180 P.2d 233,116 Colo. 288 |
| Parties | PHIPPS et al. v. MITZE. |
| Court | Colorado Supreme Court |
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.
O. Otto Moore, of Denver, for plaintiffs in error.
Grant E. McGee and Charles A. Murdock, both of Denver, for defendant in error.
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 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 from them. The parents of the drowned boy testified that they had warned him to stay out of all bodies of water. There also was testimony to the effect that there was no fence within a radius of a quarter of a mile of where the accident occurred. There was a fence, partly broken down in places, marking the boundaries of defendant's land, which the children found no difficulty in crossing. The evidence further showed that the ponds on the land where the death occurred had been constructed by some predecessor in interest to defendant, and that defendant continued to maintain them as he found them when he purchased the property--using the collected water for irrigation. The ponds were not visible from any public highway or road, and their existence could be discovered only by entering upon and traversing the land of defendant. There was no warning sign at either of the ponds. An old, fallen-down, wooden sign forbidding fishing was found some distance away, and there was a fallen 'no hunting' sign about a mile away.
At the conclusion of plaintiffs' case, on motion of defendant the trial court directed a verdict in favor of the defendant, and plaintiffs here seek a reversal of that ruling, contending that there was sufficient evidence to warrant the submission of the case to the jury. To support this contention, chief reliance is placed upon Restatement of the Law--Torts, section 335, and Smith v. Windsor Reservoir & Canal Co., 78 Colo. 169, 240 P. 332; Windsor Reservoir &...
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...work 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 hid......
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...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 Ch......
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