Windsor Reservoir & Canal Co. v. Smith, 11925.

Docket Nº11925.
Citation82 Colo. 497, 261 P. 872
Case DateNovember 14, 1927
CourtSupreme Court of Colorado

261 P. 872

82 Colo. 497

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

No. 11925.

Supreme Court of Colorado, En Banc.

November 14, 1927


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

Rehearing Denied Dec. 19, 1927.

Error to District Court, Larimer County; Francis E. Bouck, Judge.

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

Reversed, and a new trial granted.

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

[82 Colo. 498] Stow & Stover and H. A. Alpert, all of Ft. Collins, for defendants in error.

DENISON, J.

Elbridge H. Smith and wife had a verdict and judgment against the company, plaintiff in error, for negligently causing the death of their son, seven years old, and the company brings error.

A demurrer to the complaint was sustained; we reversed that decision. Smith v. Windsor Res. Co., 78 Colo. 169, 240 P. 332, q. v. The defendant then answered, and the case was tried. We held that the complaint stated a cause of action, in that it alleged that the defendant owned and maintained an outlet ditch, 45 feet deep, with water 22 feet deep, and with a false bank of sand, which had been blown in by the wind, rested on ice, and was in great danger of caving, though to children apparently safe, and so in the nature of a trap, all of which defendant knew, yet for many weeks permitted plaintiff's son, seven years old, and other small children, to rest and play on said bank; that the ice gave way while children were on the bank, the sand sank with them into the water, and plaintiffs' son was drowned.

The claim is made that the evidence does not support the complaint. We think it does. That the ditch and false bank were there as alleged is undisputed, also that the boy and other children sometimes rested and played on the banks, and were doing so when it caved; that it was dangerous is proved by the event; there is little, if any, dispute that the bank was to children apparently safe. The allegations of the complaint in controversy at the trial, then, were really but two--the permission to play on the bank and the knowledge by defendant of the danger. There was direct evidence of express permission to go anywhere on the defendant's property, 'so [82 Colo. 499] long as we stayed off the ice,' and there is circumstantial evidence from which it may be inferred that one Stephens, defendant's caretaker, who lived and worked for defendant on its land, near the accident, knew of the fact that the children played on the false bank and that it was dangerous. These conditions forbid us to say that the plaintiff's case as alleged was not proved, and the inhibition upon us is strengthened by the fact that the jury viewed the premises and by the unexplained absence of Stephens as a witness.

The point is urged, however, that the children, including the deceased, were repeatedly warned to keep off the reservoir, and to keep off the company's land. The evidence of this is very strong, but contrary to the testimony of the children as to permission and to some circumstantial evidence. The solution was for the jury.

It is claimed that Elbridge Smith, one of the plaintiffs, forbade his son and a daughter two or three years older to go on the reservoir, but there is evidence that he only told them to keep off the ice; whatever, therefore, may be the relevancy of such a warning, the point is not conclusive against [261 P. 873] the verdict. The court sustained an objection to a question to Smith on cross-examination whether he had warned his children...

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9 practice notes
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...waste resulting from the common 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 com......
  • Trimble v. Spears, No. 40786
    • United States
    • United States State Supreme Court of Kansas
    • January 25, 1958
    ...Co., supra; Hooker v. Routt Realty Co., supra; Averch v. Johnston, 90 Colo. 321, 9 P.2d 291; Windsor Reservoir & Canal Co. v. Smith, 82 Colo. 497, 261 P. 872; Lunt v. Post Printing & Publishing Co., 48 Colo, 316, 110 P. 203, 30 L.R.A., N.S., 60; Watson v. Manitou & Pikes Peak Railway Co., 4......
  • Dunbar v. Olivieri, 13485.
    • United States
    • Colorado Supreme Court of Colorado
    • September 23, 1935
    ...Coal Co., 77 Colo. 143, 235 P. 373, 39 A.L.R. 482; Smith v. Windsor R. & C. Co., 78 Colo. 169, 240 P. 332; Windsor R. & C. Co. v. Smith, 82 Colo. 497, 261 P. 872. 1. None of the first group of citations is decisive of the case at bar. The mere fact that one does a thing prohibited by statut......
  • Gotch v. K. & B. Packing & Provision Co., 13032.
    • United States
    • Colorado Supreme Court of Colorado
    • September 18, 1933
    ...them by any affirmative act or force set in motion. Averch v. Johnston, 90 Colo. 321, 9 P.2d 291; Windsor Reservoir & Canal Co. v. Smith, 82 Colo. 497, 261 P. 872; Reardon v. Thompson, 149 Mass. 267, 21 N.E. 369; Vaughan v. Transit Development Co., 222 N.Y. 79, 118 N.E. 219; Fitzpatrick v. ......
  • Request a trial to view additional results
9 cases
  • Mile High Fence Co. v. Radovich, No. C--31
    • United States
    • Colorado Supreme Court of Colorado
    • September 20, 1971
    ...resulting from the common 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 commo......
  • Trimble v. Spears, No. 40786
    • United States
    • United States State Supreme Court of Kansas
    • January 25, 1958
    ...Co., supra; Hooker v. Routt Realty Co., supra; Averch v. Johnston, 90 Colo. 321, 9 P.2d 291; Windsor Reservoir & Canal Co. v. Smith, 82 Colo. 497, 261 P. 872; Lunt v. Post Printing & Publishing Co., 48 Colo, 316, 110 P. 203, 30 L.R.A., N.S., 60; Watson v. Manitou & Pikes Peak Ra......
  • Dunbar v. Olivieri, 13485.
    • United States
    • Colorado Supreme Court of Colorado
    • September 23, 1935
    ...77 Colo. 143, 235 P. 373, 39 A.L.R. 482; Smith v. Windsor R. & C. Co., 78 Colo. 169, 240 P. 332; Windsor R. & C. Co. v. Smith, 82 Colo. 497, 261 P. 872. 1. None of the first group of citations is decisive of the case at bar. The mere fact that one does a thing prohibited by statute ......
  • Mathias v. Denver Union Terminal Ry. Co., No. 18093
    • United States
    • Colorado Supreme Court of Colorado
    • March 24, 1958
    ...of refraining from injuring him by wanton acts or through affirmative and active negligence. Windsor Reservoir & Canal Co. v. Smith, 82 Colo. 497, 261 P. 872. Inhering in certain relationships is the doctrine of assumption of risk. It applies to the relationship between an owner of prem......
  • Request a trial to view additional results

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