Veraguth v. City of Denver

• Decision Date: 11 April 1904
• Citation: 19 Colo.App. 473,76 P. 539
• Parties: VERAGUTH v. CITY OF DENVER.
• Court: Colorado Court of Appeals

76 P. 539

19 Colo.App. 473

VERAGUTH v. CITY OF DENVER.

Court of Appeals of Colorado

April 11, 1904

Error to District Court, Arapahoe County.

Action by Milton W. Veraguth against the city of Denver. Judgment for defendant, and plaintiff brings error. Affirmed.

By the twenty-sixth subdivision of section 20 art. 2, of the charter of the city of Denver, approved April 3, 1893 (Sess.Laws 1893, p. 131, c. 78), the city council was empowered to prevent the deposit of ashes in unsafe places, and, by the fifty-eighth subdivision of the same section, to declare prevent, or abate nuisances on public or private property and the cause thereof. By sections 62 and 66 of article 3, it is made the duty of the mayor, the members of the city council, the chief of police, and all assistants and members of the police department of the city, at all times diligently and faithfully to enforce all such laws, ordinances, and regulations for the preservation of good order and the public welfare as the city council might enact. On the 1st day of October, 1898, the following ordinances of the city council were, and for a long time previously had been, in force:

"It shall be the duty of the owner of every building within the city of Denver, and of the agent having the same in charge, to furnish a close and secure metallic or earthen vessel, or brick or stone room or bin, as a receptacle for ashes; and it shall be the duty of such owner and agent, and also of every tenant and occupant of any building within the city to remove the ashes from such receptacle when the same is filled. And no ashes (except at manufactories where ashes are used) shall be kept or deposited in any part of the city in anything other than such metallic or other earthen vessel, or stone or brick room or bin. Any person failing to comply with, or violating, any of the provisions of this section, shall be fined in any sum not less than ten nor more than one hundred dollars, and the additional sum of five dollars for every twenty-four hours of failure or refusal to supply such receptacle or remove such ashes after notice so to do from the chief, or assistant chief engineer of the fire department, or any fire warden or police officer."

"Every act or thing, done or made, permitted, allowed or continued on any property, public or private, by any person or corporation, their agents or servants, detrimental to health, or to the damage or injury of any of the inhabitants of this city, and not hereinbefore specified, shall be deemed a nuisance."

On the 1st day of October, 1898, Charles H. Freund was, and had for a considerable time been, the owner of certain ground in the city of Denver, on which was a 1 1/2-story frame building the upper part of which was occupied by Freund and his family, and the lower part by the parents of the plaintiff, as tenants of Freund. Freund and his tenants failed to comply with the provisions of the ordinance concerning ashes. They provided no metallic or earthen vessel, or brick or stone room or bin, upon the premises, as a receptacle for ashes, but used a circular hole dug into the ground in the rear of the house, and within the lot belonging to Freund, about 3 feet in diameter, and 2 1/2 feet in depth, and caused the ashes produced by them respectively to be thrown into it. This hole was left uncovered. The lot was inclosed by a fence. On the 1st day of October, 1898, the plaintiff, then a child 1 1/2 years of age, strayed from the rear door of the house, and fell into the hole, which, at the time, was full of hot ashes, and before he could be rescued was severely burned, and sustained permanent injury. His mother and guardian, Emma E. Veraguth, brought this action in his behalf to recover from the city damages for the injury, alleging knowledge on its part of the existence of the hole and its contents, and of their dangerous character, and averring that, notwithstanding such knowledge, it negligently and wrongfully failed to enforce its ordinance relating to ashes, or the law respecting nuisances, but negligently and wrongfully permitted the dangerous situation to remain undisturbed. The testimony introduced by the plaintiff corresponded substantially with the allegations of the complaint, and was not contradicted in any material particular by the defendant's witnesses. A demurrer originally interposed to the complaint had been overruled, but, when the evidence was concluded, the court reconsidered the ruling and directed a verdict for the city. ...