Platte & Denver Canal & Milling Co. v. Dowell

• Decision Date: 02 May 1892
• Citation: 17 Colo. 376,30 P. 68
• Parties: PLATTE & DENVER CANAL & MILLING CO. v. DOWELL et ux.
• Court: Colorado Supreme Court

30 P. 68

17 Colo. 376

PLATTE & DENVER CANAL & MILLING CO. v. DOWELL et ux.

Supreme Court of Colorado

May 2, 1892

Appeal from district court, Arapahoe county.

Action by John Dowell and Mary Dowell against the Platte & Denver Canal & Milling Company to recover damages on the ground of negligence resulting in the death of their son by drowning. From a judgment for plaintiffs, defendant appeals. Affirmed.

The other facts fully appear in the following statement by HELM J.:

The statute of 1887, considered in the following opinion, reads 'Section 1. That every corporation and company, whether created by special act or organized under the general incorporation laws of this state, and every partnership person, or persons, who now or may at any time hereafter own or control any canal or ditch, or any part thereof, being two feet in width or over, and carrying water to the depth of twelve inches or over, which canal or ditch, or any part thereof, is within the corporate limits of any city denominated in the law as of the first class, or any city existing by special charter, of a population equal to or exceeding said cities of the first class, or any of the additions thereto, shall at their own expense, within sixty days after this act shall have taken effect, confine, flume and cover over all or any part of such canal or ditch whether located on or across private property, public highways, or alleys in said city, or additions thereto, in a reasonable and sufficient manner, and with such materials as will render such fluming or covering safe, and a sure protection to the lives and property of the inhabitants of said city; and any such corporation, company, partnership, person, or persons shall at all times thereafter keep and maintain any and all such structures confining, fluming, and covering of such canal or ditch in good order and repair, at their own expense. Sec. 2. Such corporation, company, partnership, person, or persons shall, at their own expense, safely and securely lattice or slat the head of such flume or covering with proper materials, so that persons or animals cannot accidentally enter such flume or covering at the head thereof, and pass or be carried down the current of said canal or ditch, and shall thereafter maintain and keep the same in good order and repair, at their own cost and expense. Sec. 3. If any such corporation, company, partnership, person, or persons shall fail or refuse to comply with any of the provisions of the two preceding sections, such corporation, company, partnership, person, or persons shall forfeit and pay to the county, for the use of the common-school fund, the sum of fifty dollars for each and every day such failure or refusal shall continue, to be recovered by a civil action in the name of the people of the state of Colorado, in any court of competent jurisdiction: provided, that nothing in this act shall be construed to bar an action for special damages by any person who shall have suffered such damages by reason of any failure to comply with any of the provisions of this act.'

Syllabus by the Court

1. The law does not presume contributory negligence. Unless appearing in the proofs offered by plaintiff, it is a defense to be established as are other defenses.

2. Where a canal is lawfully constructed, and its maintenance and use within the corporate limits of a city are duly authorized, in the absence of statute, a private action cannot be maintained against its owners without averring and proving special damages caused by an improper or negligent exercise of the lawful rights pertaining thereto. Nor can the city arbitrarily close the head gate of such canal, or compel its owners to construct bridges at its intersections with the city streets.

3. A broad distinction exists between statutes indirectly imposing burdens upon individuals or corporations for the accommodation and convenience of the public or for private aggrandizement, and statutes imposing such burdens for the purpose of promoting the public peace, health, and safety. Provisions are often upheld, regulating the exercise of corporate powers so as to avert dangers menacing life and property, when such provisions would be annulled if designed simply to subserve the public convenience or promote purely private interests.

4. The charter of a private corporation is a contract, within the meaning of the federal constitution, the obligation of which cannot be impaired by subsequent legislation.

5. But such contracts contain no express or implied provision authorizing corporations to transact their business in a manner detrimental to the public peace, health, or safety; and regulations adopted under the police power for the purpose of protecting the public health or safety may be valid. This power is an essential attribute of sovereignty, and a state cannot by legislation barter away the right to exercise it.

6. The police power may be abused. If a statute purporting to have been enacted to protect the public health, morals, or safety has no real or substantial relation to those objects, or is a palpable invasion of constitutional rights, the court should declare it void.

7. Private corporations occupy in respect to the police power the same attitude as private individuals engaged in similar branches of business. They must submit to proper police regulation in the interest of society, even though such regulation operate to injure the business authorized, and to diminish the value of the property employed therein.

8. Courts will not presume dishonest or improper motives on the part of legislative bodies, and they never annul statutes merely because the legislative judgment or discretion is improvidently exercised.

9. Section 3, art. 15, of the constitution, recognizes a legislative right to alter, revoke, or annul, upon condition just to the corporation, any part or all of the corporate charter; but it does not control the exercise of the police power in regulating the transaction of corporate business.

10. The failure to perform a statutory duty specifically imposed under the police power for the protection of the public is negligence per se, and in the absence of contributory negligence a recovery may be had for an injury thereby occasioned.

J. D. Markham, for appellant.

W. E. White, for appellees.

HELM, J., ( after stating the facts.)

Appellant was and is the owner of a canal conveying a large volume of water through a thickly-populated portion of the city of Denver for milling purposes. This canal being uncovered, George E. Dowell, a minor son of appellees, fell in and was drowned. The present action was brought by appellees under section 1509, Mills' Ann. St. to recover damages on the ground of negligence resulting in the decease of the said George E., as aforesaid. The only default or neglect averred in the complaint was the failure and refusal of appellant to confine, flume, or cover its canal, as required by an act of the legislature approved March 29, 1887. Sess. Laws 1887, p. 65. The pleadings and evidence present two questions for adjudication: First, did the failure of appellant to obey the statute of 1887 by covering its canal, and thus rendering the accident impossible, constitute such negligence per se as creates an actionable liability for private injuries that would not have been suffered but for the failure? and, second, does the evidence show contributory negligence on the part of deceased or on the part of appellees? These questions will be considered in inverse order.

No one saw the accident, nor is there any circumstantial evidence indicating precisely where or how it occurred, save that deceased was drowned in appellant's canal. Hence, there is no proof concerning the acts of deceased, or circumstances immediately attending his death. The law does not presume contributory negligence. Unless appearing in the proofs offered by plaintiff, it is a defense to be established as are other defenses. Whart. Neg. § 423; City of Denver v. Dunsmore, 7 Colo. 329, 3 P. 705; Railway Co. v. Ryan, 17 Colo. ----, 28 P. 79; Railroad Co. v. Gladmon, 15 Wall. 401. The defense of contributory negligence on the part of appellees is based upon the fact that they permitted deceased to be at large unattended. He was afflicted with epilepsy, but the convulsions were infrequent, occurring not oftener than from five to seven times a year. A number of the witnesses saw him at different times while having these convulsions, and his schoolmates sometimes called him 'Crazy George;' but a speedy recovery always followed the paroxysms, and his mind does not appear to have been seriously affected. He was 14 years of age, and aside from the epileptic tendency in good physical condition. Much of the time, when not in school or otherwise engaged, he pursued the avocation of bootblack, occasionally earning as high as six dollars per week, which earnings he always brought home to his mother. He was industrious and trustworthy, being employed upon all kinds of errands. In general, he seems to have been amply able to protect himself. We are not prepared to say that, under these circumstances, it was negligence on the part of appellees to permit deceased to go about unattended. Besides, the questions of contributory negligence by appellees and by deceased, respectively, were submitted to the jury, under proper instructions; and certainly the record does not warrant disturbance of the verdict by us upon either of these grounds.

We turn, therefore, to the remaining question, which is the one mainly relied on by counsel for appellant. It is admitted that Denver is a city of the first class, and there is no dispute but that appellant's canal is covered by the terms of the act of 1887. The second defense, to which the...