*1 16,830. No. County
Parker of Denver. 553) P. (262 [2d] October 1953. Decided *2 plaintiff Mr. Darwin D. Coit, for in error.
Mr. Leonard M. Campbell, Mr. Duncan J. Cameron, for defendant error.
En Banc. delivered court. Alter
Mr. Justice brought against City an action I. Parker Frances County judgment of Denver to recover a dam- ages allegedly by by sustained her reason an accident public city. on one of the streets of that At the conclu- granted sion of all the evidence court defendant’s judgment motion for a directed verdict and entered ac- cordingly. by seeking Plaintiff is here writ error judgment. reversal of the granting court, defendant’s motion for a directed
verdict, stated: City County
“The motion of the of Denver for a granted, finding directed verdict is the Court as a matter of law that the defect in this sidewalk at the time of the 10, accident on December 1949, was, fact, less than one slight impose duty upon inch, and as such was so as to no either discover to correct the same. “Accordingly, prepare the Court will verdict for signature jurors.” of one of the thusly: Plaintiff’s evidence be summarized On night December at about 7 o’clock P. M., plaintiff walking was near sidewalk 1216 York Street when, reason of a crack rise of one inch or public more tripped in the sidewalk, she on said eleva- resulting permanent fell, tion and bodily in serious and injuries. plaintiff Witnesses for testified that the said walk was constructed of concrete blocks and that at the injured, one plaintiff place the elevation was adjoining a half one and block from varied over block tapered to about one side thereof and on to two inches of the this condition side, on the other and that inch one period of considerable had remained for some sidewalk testified prior Plaintiff accident. time date prior employed to the teacher that she was as a school particular to travel over this accident and had occasion frequently. sidewalk in the or elevation evidence to the rise
Defendant’s ruler, actual measurement with a sidewalk, oyer slightly inch, than an one inch or less it was of an three-fourths the exact center of walk was inch. evidence, and of all of the
At the conclusion upon stated, as hereinbefore defendant, motion verdict, and connection therewith court directed a *3 the law, it as a matter of that defect found, stated that in the than one inch. There was com sidewalk was less petent defect sidewalk at evidence that in the place alleged injuries occurred near where the was elevation, on and it is well- and a half to two inches in jurisdiction party making a mo settled in this that law admits the truth of the ad tion for directed verdict versary’s every fact evidence and favorable inference of legitimately therefrom. It also is which drawn jurisdiction equally this that settled in well ordinarily careful do what results from a failure to prudent person done under circum have here contended defend stances of the case. It is not safety pedestrians on its side ant an insurer of every or unevenness therein walks, nor that defect part an accident occurs there creates a on its if position plaintiff’s here, defect it is on, but representatives of evidence, under the was such that reasonably danger anticipate from its defendant could might reasonably prudent men hon existence and that estly conclusions as to defendant’s liabil- reach different 358
ity. so, This it is contention that being plaintiff’s trial court erred defendant’s motion for granting directed verdict evi- here is contended that dence facts for presented determination. jury’s
Our court Denver v. in the case 28 Hyatt, 129, Colo. 63 held that a failure on the 403, part Pac. the city to exercise reasonable care its sidewalks keep travel reasonably safe condition for was negligence, and it also held that its failure to so maintain its side- walks damages would render it liable for to a pedestrian thereon dili- who, in the exercise of care and ordinary gence, was injured by reason of the defective sidewalk. The decision in Denver Hyatt, supra, remained law in this jurisdiction until in the our decision Denver Burrows, 76 Colo. Pac. 17, 227 840.
In
Burrows,
Denver v.
con-
the sidewalk was
structed of cement blocks, and an unevenness occurred
therein so that
“One
blocks was so elevated that
these
while one end
was even
block,
thereof
adjoining
the other end was one and
inch
five-eighths
higher.
elevation was one and
three-eighths
where,
the point
testimony,
struck
according
plaintiff
her
toe
against
edge
raised block.” It
inwas
that case
held: “In our
the defect
opinion,
involved in the instant
that,
case was such
as a
law,
matter of
it did not render
the sidewalk not
safe. It was a
reasonably
slight defect
from which
danger
to be
reasonably
antici-
v. City
We therein cited
pated.”
Northrup
Pontiac,
and also Beltz v.
Yonk-
250,
Mich.
City of
1107,
N.W.
ers,
148 N.Y.
42 N.E.
of two
inequalities
inches or
held,
less
ain
sidewalk were
as a matter
*4
not to render
unsafe for
reasonably
travel.
public
City
Colorado
Springs v. Phillips,
in
Subsequently,
of
“We if hold, had, did and we have dictum, been such we would follow cases three-eighths inequality further than as of one speaking Furthermore, that case inches. we were light as to all the facts and circum- evidence case, tried, stances cause had been presumably evidence was in record before us. controlling, principle general think and, as we our in the case as is set forth in such cases irregularity inequality of the surface follows: ‘Mere way damages of a not of itself liable for does make place. municipality only A sustained such is held reasonably the maintenance of a safe sidewalk. Griffith *5 360
v. Denver,
Smith,
55
Pueblo
37, 44,
57;
Colo.
132 Pac.
v.
57
sidewalk,
Colo. 500,
“With thus in think mind, announced we opinion say it an unreasonable to construction of the lays proposition permitting down the that, whether an inequality or raised block in sidewalk, constitutes ac- negligence may simply tionable be determined with a ”** * foot rule. pointed supra, As was out in Nelson Denver, no definite or mathematical rule can be laid down as to the depth depression of a or in elevation a sidewalk neces- sary negligence against constitute actionable a muni- cipality. We think it clear from the in that case depression that the extent of the or elevation in a street which negligence will relieve the of actionable in its vary maintenance must with other circumstances as we therein said. The other circumstances which must be taken into consideration all of these cases is the amount of travel on the sidewalk, the location of the de- pression or elevation, area, nature and other may properly circumstances which be considered jury determination of the case. There be instances judicial propriety, which the court, with may determine that the defect in the sidewalk is so slight negligence question that actionable becomes a law, but there is, in almost all instances, a shadow zone where the facts are such that the must be sub- jury, duty mitted to the and it then becomes its to take into consideration all of the facts and circumstances in connection with the improper accident. We believe it action- determine for a to undertake error court the de- inch for if a fraction of able held Phillips, Springs Colorado pression is two elevation depression then if good *6 whereas, negligence, or less there no actionable inches is be if over inches it is a an inch two fraction of of negli- a determination jury’s actionable require cannot sub- and we situation, an This is absurd gence. decisions, many in It has been announced thereto. scribe case that each hereinafter, cite shall some of which we cir- surrounding must determined the necessarily a be left to must cumstances, matter generally jury. re- fact that court have called attention
We Burrows, v. Denver on the decision lied somewhat in v. Beltz Pontiac, supra; City v. supra; Northrup of deci- Yonkers, examined these City supra. We have of con- the courts have Michigan sions and find that in v. in Northrup rule relied announced sistently upon careful Pontiac, is said: “A City supra, wherein it of of all them leads to examination of cited] [cases law, a matter of held, conclusion that the court has in a of inches less sidewalk inequality two or that does not render it not travel. public safe reasonably It a obviously difficult what just point determine jury permitted pass upon question. shouldloe our falls within bar, however, opinion, clearly case at in supra.” the cases the rules laid in cited down in Our connection examination Yonkers, v. this City supra, Beltz discloses situation of in that In that case there jurisdiction. was two City v. Beltz of half inch projection. Upon authority Hamilton Yonkers, City v. it was held in of of Buffalo, 944, N.E. that a four-inch 72, 173 N. Y. 65 pro- of not, or matter was as a action- jection depression Butler Village Oxford, v. Later, 186 negligence. able of Beltz v. City 712, authority N. Y. 79 N.E. City Buffalo, supra, and Hamilton v. Yonkers, supra, 362
it was that a or depression held five-inch projection actionable However, we find negligence. v. Loughran York, New N.E. City N. Y. Yonkers, City (2d) 136, the rule Beltz announced supra, has now been and therein we radically changed, find following: “ * * * tpg pas cj[ty in its contention that prevailed should be complaint ground dismissed on the there was no evidence that the hole was four inches in depth or that it constituted a ‘trap.’
“For the past least, years at this has twenty court declined to recognize such as that any principle urged we have held no that there is city. On contrary, rule in a that the this municipality whether the upon sort turns hole or depression, causing to fall, is inches—or num- pedestrian any other four ber inches—in ‘a constitutes depth trap.’ See, e.g., *7 Norbury Buffalo, 605, 669; 246 N. Y. 159 N.E. & Jaybro Wilson v. N. Y. Realty Development Co., 289 410, 2d 497; 46 v. City Buffalo, N.E. Dowd of 290 N. Y. 895, 50 2d 297; Lynch N.E. v. of City Beacon, 295 N. Y. 872, 515; 67 2d Pratt v. N.E. of Seneca 295 Village Falls, 690, N. Y. 65 N.E. As observed, 2d 332. we but recently there is no requirement that ‘a hole a public thorough- * * * fare be of a before its existence particular depth can rise a give legal liability.’ Wilson v. Jaybro Realty & Co., Development 289 N. Y. page 412, 46 N.E. 498. A on 2d at municipality’s liability depends page whether not, mind having the circumstances of each case, it has neglected its keep public failed thoroughfares-—whether sidewalk a street or the of ain a condition pathway park—in reasonably safe for (Italics ours.) pedestrians.”
In the following cases, among many others, it is held that actionable connection the main- tenance of sidewalk is a fact question of for the jury’s determination: Smith City Bluefield, v. 132 38, W. Va. of 55 392, S.E. one and (2d) one fourth inch projection;
363 (2d) City 26 N.W. Moines, 312, Beach v. Des 238 Ia. of City Cin 81, one and a half to Kimball v. inches; two of App. (2d) 28, 92 Ohio offset of one cinnati, 487, 111 N.E. Young inch to one and Company (Mo. v. Public Service inches; a half depression App.) (2d) of 113, 255 S.W. City one v. to one Louisville inches; and a half of Ky. (2d) one and three Wheeler, 222, 386, 301 191 S.W. projection; Commissioners, etc. inch President & fourths Kelly (Md.) (2d) depression v. A. of one half to 594, 89 one and District Columbia v. inches; three fourths of (District Municipal Ap of Williams of Columbia Court (2d) peals) and one 111, 46 A. elevation between one eighths Gurney Rapid City (S. D.) inches; v. 50 five Ray (2d) depression of one Lake 360, inch; N.W. v. Salt (2d) City, of 412, 256, 92 Utah 69 P. elevation seven City Guymon eighths fourths of an v. inch; to three (2d) depression 141 P. Eaton, 73, 555, 193 Okla. one eighths inches; and five to one and three fourths Palmer Long City (2d) P. Beach, 134, 952, 33 Calif. 199 de v. pression inches; of from one fourth of an inch to three City (2d) 6, 535, Ariz. P. de Yuma, 55 97 Dillow v. City pression approximately inches; Johnson v. two (2d) (2d) one 878, 229 P. and one Ilaaco, 408, 38 Wash. City Maloney D. inches; Forks, fourth v. Grand 73 N. (2d) one inch to one and one fourth 445, 769, 15 N.W. Pittsburgh, City Pa. 22 A. inches; 256, Henn v. (2d) 742, inches; one a half to two Phoenix (2d) 157, one Ariz. 226 P. and half Weedon, Quinn Stedman, 50 R. I. 146 Atl. inches; two one and one fourth inches. 618, one fourth to long jurisdiction following In this and unbroken *8 by has been held our court that decisions, it line where on material facts or conflict, the evidence is in in undisputed upon facts which event there are reasonable opinions men form different and fair-minded draw different conclusions ques inferences,
or then negligence jury. is one for determination a tion following Municipal McQuillin, find the in 19 We Cor 364
porations (3d ed.) page “Although section 54.204: question generally municipality’s negligence is question jury, yet only a of fact one infer where question ence can be drawn from the evidence, negligence becomes court. In one law for the other appear words, when is to one made case is upon which reasonable minds would not at a dif arrive regard ferent conclusion to whether mainte particular nance of defect a street or sidewalk con negligence part municipality, stituted question may See, also: 1 then be one law.” Shear Negligence (Rev. ed.) p. man and 109, §40, Redfield on seq.; p. seq.; p. et et C.J.S., §941, Jur., Am. seq.; 141,§156,et 119A.L.R. 161. Springs
Here, under our decision Colorado v. Phillips, supra, duty grant it became the court’s motion for a under because, directed verdict the evi depression dence, not inches, did exceed two and this negligence. we had determined not be actionable We opinions have concluded that the court of this in Denver supra, City Springs Burrows, v. Colorado Phil lips, supra, basically wrong are in their determination depressions constituting that negligence may elevations or actionable
be measured inches. If the law an jurisdic nounced these cases to be in this followed pedestrian injury tion, then who sustains an on a side projection depression walk where the or is 1-31/32 height depth, inches in or no matter or under injury may what circumstances the have occurred, is against municipality, entitled to maintain an action duty declare, and it becomes the court’s so to whereas injury place one whose on a sidewalk occurred at a projection depression where the or inches 2-1/32 height depth, actionable then becomes a j ury’s for the determination. compelled opinions We are hold that our in Denver Springs Burrows, Colorado v. Phil- basically wrong lips, supra, they are in so far as deter- *9 negligence' solely by mine our becomes inches, duty definitely accordingly, to the same, which, overule is done. judgment is aside and the cause reversed and set proceedings,
remanded if court, to the district further any, harmony to be in herewith.
Mr. Justice Holland dissents.
Mr. Justice Holland dissenting. majority
aWith firm belief that the effects of the devasting reaching particularly are far so municipalities, I dissent therefrom and am actuated to expression my views thereon. my opinion,
Of first that, is fact consideration overruling Phillips long of the Burrows and cases of standing gratuitous required. is and not called for or by plain- These cases have not been for attacked counsel upon tiff and it seems that relied the defect in counsel being three-eighths bar as more than one and testimony inches as shown the case. some disputed This application evidence, course, leaves no room for the
of the rule as determined the trial court ruling thereon as a words, of law. In other matter justify evidence before the trial court did not application of the law as set out in the cases, decided question jury should have been submitted any if there evidence to the effect that the defect three-eighths was more than one and inches; and in proof event, if there was substantial that the defect or three-eighths rise in the more sidewalk was than one and city safety rely inches, then the could not with on the remedy two cases as an excuse its failure to the de- city fect, and the rule of constructive notice to apply. right ignore, However, it had a without liabil- ity, three-eighths unevenness in sidewalks of one and inches less, and this case, if retried on remand as the majority opinion jury directs, should be submitted to the in the instruction great care shown and all or not cases whether under decided elementary is
circumstances, notice, had since it essential that notice defect before *10 be it can would attach. It is difficult to conceive of how notice case that the law imputes said in the trial of this the years, for twenty-nine when the trial and prior less than defects to notice municipality required was the one but after height, inches in three-eighths the seen fit to that trial, say and when this court has the not exist yester- rule or the did city responsibility be remanded with day but does should today. court should instruct that at a new trial the instructions the instant case if the found the jury that in jury the than the to be less one or defect in sidewalk elevation find for defendant. inches, it should three-eighths hand, to do in the case at justice The majority opinion, the is inclined further; however, majority no if go should cases, the rule in the Burrows and Phillips to overturn retroactive to the action be and not prospective let its on notice a sudden litigant of a without damage party in its change responsibility. the cases of Burrows
If the after opinion, overruling Colorado Denver, 76 Colo. 17, 840, 227 Pac. 230 Pac. the court Phillips, 76 Colo. Springs all laid down clear and unmistakable rule that in cases one for a and the negligence jury question or the not to meas- city municipality be ured inches and so as a matter of I ad- declared thereof; however, logic support mit there is forceful then existence of kind of a obtains, any if that result deemed evidence neglect part defect be may making and is tantamount city municipality using sidewalks, safety persons an insurer of of a is nowhere required and that requirement the law. majority
In this connection the leaves the here clouded be- uncertainty, involved with question may cause, it is stated, “There be instances which judicial propriety, court, that determine slight the defect in the actionable sidewalk is so further, becomes a And law.” improper “We believe it error for court to un- negligence by dertake to a fraction determine actionable * * * judge of an .” inch If one should determine trial three-eighths that an unevenness that is one and inches slight neg- in a sidewalk is so there no actionable ligence, should he because, all, after reversed, trying get rule of measurement that the court is now away from still remains an instrument in minds and judge. hands of the trial is reasonable unreason- What nearly able under these cases is all of the decisions, dangling judge jury. left between and the In the Phillips by majority Burrows and cases, which opinion are overruled, there is a rather unmistakable provides security standard which reasonable for the *11 municipality guidance involved, as as well for a trial court. The case of Nelson Denver, 109 Colo. (2d) 122 P. cited, therein adds more confusion uncertainty and to the field what we to think like “ * * * as law, settled because in that it said, and sometimes the defect is such that, as a matter of it apparent nothing is not actionable.” It is therefore that really positive and definite has been determined majority opinion, other than to throw further uncer- tainty parties around interests of all who be city position being involved; leaves the in the com- pelled, liability, in order to to avoid have and maintain its sidewalks without defect whatever; enables a com- plainant recovery any to take the chance under con- handicaps ditions; and the trial court in the exercise of perfect judgment freedom in their and discretion. municipality’s standpoint
From the there was no un- certainty in our former to cases, at least the extent that three-eighths unevenness in a sidewalk of one and inches actionable; and rule there laid down guiding light municipality
has been of the twenty-nine years. rely unquestioned right to It had the certainty on that court announced our the rule as and not thereof, be concerned as to the correctness rights municipality in the case and interests of the Bur- not be the ruins of the at bar should buried with Phillips particu- of this rows and cases. As to the results applies peculiar lar case, maxim of stare decisis with almost force. That maxim assures muni- irresistible cipalities, they as well as act individuals, that insofar rights pro- on authoritative rules of their be conduct, will leading up It tected the courts. cannot be said that city the case at acted on a hand, that mistaken view arbitrary or on an conclusion of its own. It should not required repeat attach, that before would city must notice, have actual or constructive. If it three-eighths had actual of a defect one notice negligent correcting inches, was it in not the defect? something How could it have notice of constructive our court had actionable, said was not and failure to re- negligence. pair not be things plain- Two are certain in this case. Counsel for or tiff knew should have known of the rule in these two bringing as it stood at action;
cases time further knew should have known the burden was upon plaintiff to take herself out from under that rule by proof greater of a defect than the rule discounte- by any nanced, which failed to do she of her witnesses any degree satisfactory proof. other cer- tainty case is, in this that the under the rule so concerning fixed in its transactions these defects, had the right rely attaching liability, thereon without and the *12 city any knowledge the mere fact that was without suddenly, warning, our court would and without make it liability and that liable, Its would fall on it without notice. rights depended upon and interests what awas cer- tainty in the decided cases that are now overthrown. It has been said that the doctrine of stare decisis has according greater of the or to the nature force, less question questions do decisions decided, those met in such cases is not constitute a business rule and certainty general only favor considerations which stability relates to a decision in the law and where transacting validity business, the modes of certain imperative quite maxim are not at and courts becomes liberty party damage change to the instant it to involved.
After all, case is not in this whether complained two decisions or correct, of are but whether they been and busi- made, were decisions that had city responsibility de- conducted, ness pended municipality, faith thereof. well as A right rely certainty upon individuals, has the to governmental decisions this court cases where city regulated. functions the may are to drastic as be As change justice, the damage. be, must, it be done without directly
The decision here strikes at the method doing permitted by business as this court and where years, upon many it has been so acted therefore the imperative. maxim of stare decisis omis- becomes duty sion of so-called in the show, instant does not or tend to show, this court should to first hold that in the bar, case at was excusable. Before should here, attach the defect must be prudent per- shown have of such been character that danger anticipate sons users of the sidewalk in question, application and in the of that rule, it must be require borne in mind that nowhere does the law duty impossible measure of that is of fulfillment. It is city’s position further to be considered that the here is upon not based its own construction of what is reason- ably upon any safe, self-devised custom, but is based upon the decisions our court. It was not a mistaken arbitrary Finally, or an view conclusion of its own. what measure reasonableness when used stand- duty required keep ard of the its sidewalks *13 area
reasonably safe for involved use? particular here had no doubt been thousands of pedestrians used without measure or stand- mishap. Further, is the ard to be used trial determining courts in defect is so slight that actionable becomes a all, law? After we are back at about place started, where we in cases where the defect except sois obviously could not dangerous be questioned. However, face municipalities now of har- uncertainty rassing from claims kind litigation arising involving any of a defect and must rest their chances on the peculiar idea of what is reasonable or insignificant according the particular judge further, And presiding. my opin- ion, municipality unheard of position of the being insurer of all its safety persons using streets or sidewalks. 16,993.
No. Plumbing Kinzbach et al. v. Midwest Heating Company.
(262 548) [2d] P. Decided October 1953.