15 Colo. App. 157 | Colo. Ct. App. | 1900
The failure of the city of Denver to maintain in a reason
The principal stress is laid on the point that the complaint fails to state a cause of action, in that it did not directly, or otherwise than by inference, allege that the accident resulted from the catching of the horse’s foot in a hole in the viaduct. The city’s representative has built up a strong argument on several cases which hold it necessary to directly charge that the injury came from an accident which was occasioned by the defect complained of. We are quite ready to concede this to be th¿ law and the rule of pleading, and had the complaint been demurred to, it would possibly have been error not to sustain the demurrer and compel an amendment. However this may be, we do not believe the complaint is so radically defective that we are at liberty to regard it as wholly failing to state a cause of action .and apply the rule which permits this suggestion for the first time in the appellate tribunal. The case was tried without objection on issue joined, and the evidence proving the accident was introduced without objection, and since the plaintiff was permitted to prove his case, and we can see that what was charged in the complaint was really the accident which was established by his proof, we do not believe the case should be reversed because of the inartificiality of the pleading. The pleading was not wholly bad, nor did it entirely fail to state a cause of action. It states enough to permit the inference that the accident resulted from a defect in the viaduct, and when without objection this was followed by proof on which a verdict was rendered, we are not at liberty to disturb the judgment.
The next proposition on which the city seems to rely is, the alleged variance between the proof and the defect charged. In the complaint it was averred there was a hole in the viaduct in which the horse caught his foot which occasioned the runaway and caused the injury. The proof shows that it
The next proposition we shall not attempt to wholly state because it would unduly extend the opinion to recite all the various instructions of which the city complains. The chief basis for their argument is that the court charged the jury, it was the city’s duty to keep the viaduct in a reasonably safe condition. It is true, as counsel contends, that the city is only bound to use reasonable care to keep its streets in safe
Even if we concede it would have been wiser to leave it out, yet when the supreme court says- it is not error to give a charge of that sort in regard to a sidewalk, we are not at liberty to hold it error to give it. Even if the rule had not been upheld by the supreme court, it so fully accords with our judgment of the duty of the city under the present circumstances, that we should have ultimately declared it, if we had had no precedent for the purpose. It must be remembered this is not a highway in one sense, while in another it is. The accident happened on a viaduct which is a structure in the air on supports, which may run over a draw, gulch, river or an arroya, and for the convenience of public travel in communicating between two points. While it is a part of the highway, it is an independent structure put there for convenience and safety and for the use of the people. Where a city buiids a viaduct for such purposes, it assumes the same obligation that.it does when it constructs a bridge and maintains it for public travel; it is bound to keep the bridge in a reasonably safe condition for the use of the public; it is bound to keep the floor of it in that condition from end to end, and when a man drives onto one end of it to go to the other, he has a right to assume that the whole way, whether over the bridge or over the viaduct, is in a reasonably safe condition for his
Another point on which the city relies regards the permanent injury sustained by the plaintiff to which he testified. We do not conclude the point to be well taken, because even though the complaint did not aptly charge it, it does substantially aver a permanent injury and the sufficiency of the complaint in that respect was not challenged by demurrer, but the proof was received without objection, and when it is followed by a verdict in a sum which is evidently not unreasonable, we do not think the judgment ought to be disturbed.
We have considered the various points which were urged at the argument and the principal ones suggested in the briefs, and having disposed of all these errors which could in any event be regarded as material, adversely to the city’s contention, we must necessarily affirm the judgment which is accordingly done.
Affirmed.