Windsor Reservoir & Canal Co. v. Smith, 13214.

Docket Nº13214.
Citation21 P.2d 1116, 92 Colo. 464
Case DateMay 01, 1933
CourtSupreme Court of Colorado

21 P.2d 1116

92 Colo. 464

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

No. 13214.

Supreme Court of Colorado, En Banc.

May 1, 1933


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

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

Action by Elbridge H. Smith and wife against the Windsor Reservoir & Canal Company. To review a judgment for plaintiffs, defendant prosecutes a writ of error and asks that it be made a supersedeas.

Affirmed.

C. D. Todd, of Greeley, and L. R. Temple, of Fort Collins, for plaintiff in error.

Fred W. Stover and Herbert A. Alpert, both of Fort Collins, for defendants in error.

BURKE, Justice.

[92 Colo. 465] Plaintiff in error is hereinafter referred to as the company, defendants in error as plaintiffs, and their deceased son as John. [21 P.2d 1117]

On a portion of the company's irrigation reservoir and outlet ditch was a so-called 'false bank,' composed of ice, covered by blown sand. The condition occurred annually. As the ice melted, this bank weakened and finally gave way. Thus, while playing thereon, John, then 7 years of age, was precipitated into the water and drowned. Claiming under sections 6303 and 6304, p. 1646, C. L. 1921, plaintiffs sued the company for $5,000 damages for that death, which they charged to the company's negligence. The company denied negligence and charged John therewith. Plaintiffs had a verdict for $4,500, and, to review the judgment entered thereon, the company prosecutes this writ and asks that it be made a supersedeas.

Judgment in this cause has been four times entered in the trial court and three times reversed here. First, a general demurrer to the complaint was sustained. On review we held the complaint good. Smith et al. v. Windsor R. & C. Co. 78 Colo. 169, 240 P. 332. Thereafter, on issue joined and trial to a jury, plaintiffs had judgment for $4,000, which we reversed for errors in the instructions. Windsor R. & C. Co. v. Smith et al., 82 Colo. 497, 261 P. 872. On the next trial a verdict was directed for the company for failure of plaintiffs' evidence. We held the evidence sufficient and again reversed the judgment. Smith et al. v. Windsor R. & C. Co., 88 Colo. 422, 298 P. 646.

The record and arguments now Before us are voluminous and present all the numerous question arising for the entire course of this litigation. A brief notice of the points settled by our former decisions, and a brief statement of the present status of the record, will eliminate most of these from present consideration.

The complaint which we held good in the 78th Colorado has not been changed. The evidence now Before us varies in no particular, here material, from that [92 Colo. 466] which in the 82d Colorado we held sufficient to support the verdict there rendered, and which in the 88th Colorado we held sufficient to go to the jury, i. e., to support a verdict had one been returned thereon for plaintiffs; hence this evidence unquestionably supports this verdict, and further examination of it in this opinion would be futile. No serious objection is now made to rulings on evidence. We think those rulings were correct. Instructions given and refused furnish the foundation for most of the assignments. Of the sixteen given, the company objected to six. It...

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6 practice notes
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...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 adherence to common law classif......
  • Bicandi v. Boise Payette Lumber Co., 6037
    • United States
    • United States State Supreme Court of Idaho
    • May 3, 1935
    ...So. 854; Ramsay v. Tuthill Building Material Co., 295 Ill. 395, 129 N.E. 127, 36 A. L. R. 23; Windsor Reservoir & Canal Co. v. Smith, 92 Colo. 464, 21 P.2d 1116; City of Altus v. Millikin, 98 Okla. 1, 223 P. 851.) The complaint alleges, among other things, that appellant's log pond was ......
  • Denver Tramway Corp. v. Callahan, 15101.
    • United States
    • Colorado Supreme Court of Colorado
    • June 19, 1944
    ...possible limitations or qualifications of the doctrine announced in the Windsor Company case' (Windsor Reservoir & Canal Co. v. Smith, 92 Colo. 464, 21 P.2d 1116, and 82 Colo. 497, 261 P. 872, 873), it definitely appears from the complaint and instructions that the 'trap' theory set for......
  • Phipps v. Mitze, 15834.
    • United States
    • Colorado Supreme Court of Colorado
    • April 28, 1947
    ...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--Torts, supra, it seems to us that section 339 is more applicable to t......
  • 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
    ...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 adherence to common law classif......
  • Bicandi v. Boise Payette Lumber Co., 6037
    • United States
    • United States State Supreme Court of Idaho
    • May 3, 1935
    ...So. 854; Ramsay v. Tuthill Building Material Co., 295 Ill. 395, 129 N.E. 127, 36 A. L. R. 23; Windsor Reservoir & Canal Co. v. Smith, 92 Colo. 464, 21 P.2d 1116; City of Altus v. Millikin, 98 Okla. 1, 223 P. 851.) The complaint alleges, among other things, that appellant's log pond was ......
  • Denver Tramway Corp. v. Callahan, 15101.
    • United States
    • Colorado Supreme Court of Colorado
    • June 19, 1944
    ...possible limitations or qualifications of the doctrine announced in the Windsor Company case' (Windsor Reservoir & Canal Co. v. Smith, 92 Colo. 464, 21 P.2d 1116, and 82 Colo. 497, 261 P. 872, 873), it definitely appears from the complaint and instructions that the 'trap' theory set for......
  • Phipps v. Mitze, 15834.
    • United States
    • Colorado Supreme Court of Colorado
    • April 28, 1947
    ...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--Torts, supra, it seems to us that section 339 is more applicable to t......
  • Request a trial to view additional results

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