Robinson v. Kerr, 18870
| Decision Date | 29 August 1960 |
| Docket Number | No. 18870,18870 |
| Citation | 355 P.2d 117,88 A.L.R.2d 705,144 Colo. 48 |
| Parties | , 88 A.L.R.2d 705 Lawrence Edward ROBINSON, by his next friend and maternal grandmother, Ruby Shaffer, Plaintiffs in Error, v. Earl W. KERR and Harris Park Lakeshore, Inc., a Colorado Corporation, Defendants in Error. |
| Court | Colorado Supreme Court |
McLean & McLean, Earl J. Hower, Denver, for plaintiffs in error.
Yegge, Bates, Hall & Shulenburg, Denver, for defendant in error, Earl W. Kerr.
January, Gilchrist & Blunk, Bardwell & Bardwell, denver, for defendant in error, Harris Park Lakeshore, Inc.
In the trial court plaintiff in error was plaintiff, and defendants in error were defendants. We shall so refer to them.
Plaintiff, Lawrence Edward Robinson, a minor, was seven years of age when on April 7, 1956 he was kicked in the face by a horse named Smokey, causing the loss of his left eye.
Smokey was owned by the defendant Harris Park Lakeshore, Inc. and was allowed to roam at large by its owner. Harris Park Lakeshore had an arrangement with defendant Earl W. Kerr whereby Kerr would see that it had access to hay and feed during the winter period when snow was on the ground. The corporation did not pay Kerr for this service, but he undertook to render it in repayment for favors previously extended to him.
The accident occurred on property owned by Mr. and Mrs. Shaffer, grandparents of the plaintiff, who had purchased one acre of land from Colorado Lakeshore, Inc., as a cabin-site. Shortly thereafter they erected a fence upon their property line as surveyed by the selling corporation. The fence consisted of from two to four strands of barbed-wire. The gate to the entrance of Shaffers' land consisted of one strand of the same wire. Access to the Shaffer land was over a small bridge located on a part of their property.
The Shaffers had left the 'gate' open upon arriving at the cabin to spend the day on April 7, 1956. Plaintiff went outside to play while his grandmother prepared breakfast. His grandfather proceeded to the backyard to repair a well. The horse appears to have wandered into the Shaffer property and onto the bridge. The grandfather told Eddie to get the horse out of the front yard, whereupon Eddie walked toward the horse. As he neared the horse he shouted at it, whereupon the horse wheeled, lashed out with a rear hoof, striking the boy in the face, then ran across the bridge and off the property.
At the conclusion of plaintiffs' evidence defendant Harris Park Lakeshore, Inc. moved for a directed verdict on the ground that C.R.S. '53, 8-13-1, et seq. applied to the facts shown.
Defendant Kerr moved for a directed verdict on two grounds: (1) That C.R.S. '53, 8-13-1, et seq. precluded a recovery, and (2) that plaintiff had failed to prove that Kerr had such care custody and control of Smokey as would impose liability upon him.
The trial court granted each of these motions and plaintiff brings the case here on writ of error.
Plaintiff bases his claim on the common law action of trespass quare clausum fregit.
As preliminary to a determination of the issues, it becomes necessary to consider the Colorado Fence statute as applied to the factual situation before us. This statute, as first enacted by the General Assembly in 1877, is in substance the same as now in force. It imposes a strict liability upon the owner of livestock for damage to grass, garden, vegetable products or other crops committed by trespassing livestock, provided the complainant carries the burden of proving that his crops had been enclosed by a fence sufficient by statutory standards to turn ordinary stock.
It is the contention of defendant Harris Park that no logical distinction exists as to the damages caused, whether to person or property, and that the statute applies in either case. Reading of the statute dispels this theory. Morris v. Fraker, 5 Colo. 425, cited by all the parties has been followed consistently in this state and serves as a guide for crop owners and cattlemen, but it has no application in an action for personal injuries caused by livestock trespassing on the land of others. The act itself limits its application to 'Damages for trespass and injury to grass, garden or vegetable products or other crops.' C.R.S. '53, 8-13-2.
Hence that plaintiff's fence had but one strand of wire in various sections is of no importance here except perhaps to indicate the property line of the grandparents' land, nor is failure to close the one-strand wire gate material.
Plaintiff contends that under the common law in force in Colorado (C.R.S. '53, 135-1-1) an owner or custodian of a horse is liable if the animal goes upon the land of another and inflicts personal injury upon one lawfully thereon.
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People v. Jones
...of the general assembly." Robbins , 107 P.3d at 387 ; Preston v. Dupont , 35 P.3d 433, 440–41 (Colo. 2001) ; Robinson v. Kerr , 144 Colo. 48, 355 P.2d 117, 119–20 (1960). The legislature has never expressed a clear intent, or any intent for that matter, to abrogate the common law born alive......
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