Opinion
Rehearing Denied March 30, 1971.
David B. Richeson, Denver, for plaintiffs in error.
George J. Strate, Denver, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
This was an action for damages based on negligence which was tried to the court. The parties will be referred to by their trial court designations. Plaintiffs bring this appeal from an order of the trial court dismissing their complaint at the conclusion of their case presentation. In dismissing the complaint, the trial court found, in part, that plaintiffs had failed to establish negligence on the part of the defendant by a preponderance of the evidence.
Since this matter was tried to the court, we cannot interfere with the findings and conclusions of the trial court if reasonable men could differ in the inferences and conclusions to be drawn from the evidence as it stood at the close of plaintiffs' case. Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284.
Plaintiffs' evidence established at most that, while clearing the street in front of the plaintiffs' residence, the defendant through its agents piled snow in the gutter, and that this act was a factor in a chain or circumstances which caused water from an overflowing irrigation ditch and also from melting snow to flow into plaintiffs' basement.
Certainly there is nothing here upon which we could rule, as a matter of law, that the defendant's acts were negligent. That being so, whether the defendant did or did not act negligently became a question of fact to be resolved by the trial court as the trier of fact, Lasnetske v. Parres, 148 Colo. 71, 365 P.2d 250; and we will not disturb the trial court's resolution of this question upon appellate review where the record supports its finding.
Judgment is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.