Smith v. Windsor Reservoir & Canal Co., 12488.

Docket Nº12488.
Citation88 Colo. 422, 298 P. 646
Case DateApril 06, 1931
CourtSupreme Court of Colorado

298 P. 646

88 Colo. 422

SMITH et ux.
v.
WINDSOR RESERVOIR & CANAL CO.

No. 12488.

Supreme Court of Colorado, En Banc.

April 6, 1931


Casemaker Note: Portions of this opinion were specifically rejected by a later court in 489 P.2d 308

Error to District Court, Larimer County; Robert G. Smith, Judge.

Action by Elbridge H. Smith and wife against the Windsor Reservoir & Canal Company. Judgment for defendant, and plaintiffs bring error.

Reversed and remanded, with directions.

Stow & Stover and H. A. Alpert, all of Ft. Collins, for plaintiffs in error.

[88 Colo. 423] C. D. Todd, of Greeley, and L. R. Temple, of Ft. Collins, for defendant in error.

HILLIARD, J.

This is an action by parents for damages because of the death of their minor son by drowning in an outlet ditch owned and used by the defendant in error in connection with a reservoir. The court directed a verdict for the defendant in error, overruled a motion for new trial, and entered judgment on the verdict. From that judgment the plaintiffs prosecute this writ; the substance of their assignments of error being that the evidence warranted submission of the issues to the jury.

The case has been here twice before. Smith v. Windsor Co., 78 Colo. 169, 240 P. 332; Windsor Co. v. Smith, 82 Colo. 497, 261 P. 872, 874. In the first of these decisions we held that the complaint stated a cause of action and that it was error to sustain a general demurrer thereto. In the second we held that the evidence was sufficient to sustain the verdict awarding damages to the plaintiffs, but that the court had erred in its instructions.

It appears from the evidence that the plaintiffs' son, a child of 7, was precipitated into the water and drowned in the outlet ditch by the giving away of a false bank composed of drifted sand blown upon ice formed in the ditch. It is fairly inferable from the record that the false bank had the appearance of permanecy, and its lack of stability would not be apparent to one not familiar with the situation, certainly not to a small child. It is reasonably clear that, while the rigor of winter persisted, no risk would be involved in going upon the bank, but that, yielding to the gentleness of spring, the icy support at some uncertain time would give way. In the course of the transition there would be three definite conditions in relation to the bank, viz. safe; apparently safe [88 Colo. 424] but pregnant with danger; and beyond the deceptive state. The...

To continue reading

Request your trial
6 practice notes
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...law classifications[175 Colo. 543] than Smith v. Windsor Reservoir & Canal Co., 78 Colo. 169, 240 P. 332; 82 Colo. 497, 261 P. 872; 88 Colo. 422, 298 P. 646; 92 Colo. 464, 21 P.2d 1116. This litigation was four times before this court as the result of the common law status Rigid adheren......
  • Black Diamond Fuel Co. v. Frank, 13910.
    • United States
    • Colorado Supreme Court of Colorado
    • December 28, 1936
    ...since been uniformly reaffirmed. Trinchera Co. v. Trinchera Dist., 89 Colo. 170, 174, 300 P. 614, 615; Smith v. Windsor R. & C. Co., 88 Colo. 422, 424, 298 P. 646, 647; Farmers', etc., Co. v. Fulton Co., 81 Colo. 69, 70, 255 P. 449; Zambakian v. Leson, 79 Colo. 350, 354, 246 P. 268, 269......
  • Blackburn v. Tombling, No. 20725
    • United States
    • Colorado Supreme Court of Colorado
    • November 1, 1965
    ...Farmers Reservoir & Irrigation Co. v. Fulton Inv. [158 Colo. 374] Co., 81 Colo. 69, 255 P. 449; Smith v. Windsor R. & C. Co., 88 Colo. 422, 298 P. 646. It is true in those two cases that questions presented on subsequent writs of error were directly ruled upon and commented upon in ......
  • Phipps v. Mitze, 15834.
    • United States
    • Colorado Supreme Court of Colorado
    • April 28, 1947
    ...Colo. 169, 240 P. 332; Windsor Reservoir & Canal Co. v. Smith, 82 Colo. 497, 261 P. 872; Smith v. Windsor Reservoir & Canal Co., 88 Colo. 422, 298 P. 646; Windsor Reservoir & Canal Co. v. Smith, 92 Colo. 464, 21 P.2d 1116. In respect to the quotation from Restatement of the Law-......
  • Request a trial to view additional results
6 cases
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...law classifications[175 Colo. 543] than Smith v. Windsor Reservoir & Canal Co., 78 Colo. 169, 240 P. 332; 82 Colo. 497, 261 P. 872; 88 Colo. 422, 298 P. 646; 92 Colo. 464, 21 P.2d 1116. This litigation was four times before this court as the result of the common law status Rigid adheren......
  • Black Diamond Fuel Co. v. Frank, 13910.
    • United States
    • Colorado Supreme Court of Colorado
    • December 28, 1936
    ...since been uniformly reaffirmed. Trinchera Co. v. Trinchera Dist., 89 Colo. 170, 174, 300 P. 614, 615; Smith v. Windsor R. & C. Co., 88 Colo. 422, 424, 298 P. 646, 647; Farmers', etc., Co. v. Fulton Co., 81 Colo. 69, 70, 255 P. 449; Zambakian v. Leson, 79 Colo. 350, 354, 246 P. 268, 269......
  • Blackburn v. Tombling, No. 20725
    • United States
    • Colorado Supreme Court of Colorado
    • November 1, 1965
    ...Farmers Reservoir & Irrigation Co. v. Fulton Inv. [158 Colo. 374] Co., 81 Colo. 69, 255 P. 449; Smith v. Windsor R. & C. Co., 88 Colo. 422, 298 P. 646. It is true in those two cases that questions presented on subsequent writs of error were directly ruled upon and commented upon in ......
  • Phipps v. Mitze, 15834.
    • United States
    • Colorado Supreme Court of Colorado
    • April 28, 1947
    ...Colo. 169, 240 P. 332; Windsor Reservoir & Canal Co. v. Smith, 82 Colo. 497, 261 P. 872; Smith v. Windsor Reservoir & Canal Co., 88 Colo. 422, 298 P. 646; Windsor Reservoir & Canal Co. v. Smith, 92 Colo. 464, 21 P.2d 1116. In respect to the quotation from Restatement of the Law-......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT