18 Colo. App. 142 | Colo. Ct. App. | 1902
On the 31st day of January, 1898, Charles D. Murray, a child seven years of age, was seriously injured by the falling upon him of a derrick situated in a public street of the city of Denver. By his nest
The action was brought against the city and Cliff jointly. The complaint stated the facts substantially as the evidence showed them, and charged the city with negligence in suffering the derrick to remain upon the street. The answer of the city, after denying all the allegations of the complaint, averred Contributory negligence on the part of the plaintiff. The jury returned a verdict against both defendants, and judgment was entered accordingly. The city alone appeals.
Error is assigned to each of the several instructions given at the plaintiff’s request. Except as to the admission of some testimony to which the city objected, and the objections to which are now abandoned, no other error is assigned. Only a few of the instructions are noticed in the argument. The objections to the others are therefore waived.
1. The fourth instruction, given at the request of the plaintiff, was that the city was “bound to use all reasonable care, caution and supervision to keep its streets and sidewalks in safe condition for travel, in the ordinary modes of travel.” The objection to this is that it does not qualify the word “safe” by the word “reasonably.” In Boulder v. Niles, 9 Colo. 415, it is said that it is the duty of the municipality to keep its avenues of travel in a reasonably safe condition for the modes of use to which they are subjected. We hardly think the jury could have been misled by the instruction. The difference between using reasonable care to keep the streets in a safe condition, and the keeping of the streets in a reasonably safe condition, is not very palpable. But if the instruction was faulty, its defects were cured by the
By the fifth instruction the court advised the jury that there could be no recovery against the city, unless the unsafe condition of the street was actually known to the city, or had existed for such a length of time prior to the accident that the city, by the exercise of reasonable care and prudence, ought to have discovered it. It is contended that no liability could attach to the city until, after actual notice, or lapse of a sufficient period to raise a presumption of notice, it had failed to use reasonable diligence to render the street safe; and that because the instruction omitted so to state, it was fatally defective. No fault is found with the instruction as far as it wentthe objection is that it did not go far enough. But the city did not ask the court to supply the omission, and it is too late now to complain of it. — Mining & Milling Co. v. Prentiss, 25 Colo. 4.
However, there is another answer to the objection. Upon the undisputed facts, the derrick and poles had encumbered the street for such a length of time that the city was charged by law with notice of their presence, and with the duty of causing' their removal before the accident occurred; and it would not have been error to so instruct the jury. — Denver v. Hyatt, 28 Colo. 129. The city is not in a position to complain of the instruction as it was given.
The court also instructed the jury that the liability of the city was the same whether the derrick was tied with a rope or not; and in the course of the instruction, after submitting the questions whether the derrick was in the street, in proximity to a public school, and was a contrivance attractive to children, incidentally referred to it as “said obstruction.” Counsel say that the court invaded the province of the
The question of the plaintiff’s contributory negligence was properly submitted, and upon the evidence, the verdict was manifestly right.
The judgment will be affirmed. Affirmed.
Wilson, P. J., not sitting.