Smith v. Windsor Reservoir & Canal Co.

• Decision Date: 19 October 1925
• Docket Number: 11097.
• Parties: SMITH et al. v. WINDSOR RESERVOIR & CANAL CO.
• Court: Colorado Supreme Court

240 P. 332

78 Colo. 169

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

No. 11097.

Supreme Court of Colorado

October 19, 1925

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

Department 1.

Error to District Court, Larimer County; Neil F. Graham, Judge.

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

Reversed.

Stow & Stover and W. K. Lilley, all of Ft. Collins, for plaintiffs in error.

C. D. Todd, for Greeley, for defendant in error.

DENISON, J.

The plaintiffs in error were plaintiffs below, and demurrer to their complaint for negligently causing the death of their minor son was sustained; they stood by it and bring error. The only question is whether it stated a cause of action.

There is so much evidential matter in the complaint that it has been difficult to sift the wheat from the chaff, and it well-nigh defeats itself, but we think it states a cause of action. It shows these ultimate facts: The defendant owned and maintained a reservoir, with an outlet ditch 45 feet deep, in which, at the time of the tragedy, the water was 22 feet deep, and the bank in great danger of caving, all of which defendant knew, yet nevertheless for many weeks permitted the plaintiffs' son, 7 years old, and other small children to rest and play on said banks; that the bank caved with the boy, sank into the water, and he was drowned. The danger was not apparent, but in the nature of a trap. A false bank had been made by drifting sand, which rested partly on ice, and the ice gave way.

When the defendant permitted the child to play on the bank it owed him a duty not to entrap him, and is therefore, under the facts stated, liable for his death. Hayko v. Colo. & Utah Coal Co., 77 Colo. 143, 235 P. 373, 374. The permission as alleged here is equivalent to the invitation suggested in the case.

Judgment reversed.

The CHIEF JUSTICE and ADAMS, J., concur.

DENISON, J., sitting for BURKE, J.