Opinion
No. 74-058
Decided January 28, 1975. Rehearing denied February 25, 1975. Certiorari granted April 21, 1975.
In personal injury action arising out of accident in which mechanic was injured while attempting to start stalled car on roadway, trial court directed verdict for defendant, Plaintiff appealed.
Affirmed
1. NEGLIGENCE — Assumption of Risk — Ordinarily — Question of Fact — Barred From Recovery — Defense Shown. While it is true that assumption of risk is ordinarily a question of fact for the jury, a plaintiff is barred from recovery if the evidence shows that he voluntarily and unreasonably assumed the risk with knowledge and appreciation of the danger involved.
2. AUTOMOBILES — Assumption of Risk — Injuries Sustained — Voluntary Attempt — Repair Stalled Car — Roadway — Directed Verdict — Correct. Plaintiff, who was injured when the stalled car he was attempting to repair was struck from behind, had gratuitously offered aid even though he knew it was dangerous to repair a vehicle on the roadway and therefore had voluntarily placed himself in a position of peril; under these circumstances, the trial court was correct in granting defendants' motion for directed verdict.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
Branney Griffith, Ronald K. Griffith, Criswell Patterson, John A. Criswell, for plaintiff-appellant.
Burnett, Horan Hilgers, Myron H. Burnett, Grant McCarren, William J. McCarren, for defendants-appellees Ruland E. Gardner and Contract T.V. Repair, Inc.
Zarlengo, Mott Zarlengo, Donald E. Cordova, for defendant-appellee Mary Zupancic.
Plaintiff Ferguson appeals from a judgment of the trial court dismissing Ferguson's negligence action against defendants Zupancic, Gardner, and Contract T.V. Repair, Inc., Gardner's employer. The trial court granted defendants' motion for directed verdict at the close of plaintiff's case and found as a matter of law that Ferguson had assumed the risk. We affirm.
Ferguson, an experienced auto mechanic, was proceeding southbound on the Speer Boulevard viaduct on his way home from work when he observed a stalled vehicle in the center lane of the three-lane one-way roadway running in a southerly direction. He stopped to offer aid, and when it was accepted, he drove his car into the center lane and parked it approximately 100 feet in front of the stalled car. He was working at the front of the stalled car, with hood raised, when defendant Gardner, who was driving a van in the center lane, applied his brakes, veered into the concrete barrier on the far left and bounded back into the center lane, striking the rear of the stalled vehicle. Ferguson either jumped or was propelled into the right lane by this impact. There, he was struck by defendant Zupancic, who had also been traveling in the center lane. She had pulled into the right lane to avoid the stalled car, which became visible when the van skidded to the left toward the concrete barrier. Neither Gardner nor Zupancic was exceeding the speed limit or otherwise driving in a reckless manner.
On appeal, Ferguson contends that the evidence of assumption of risk was neither clear nor indisputable, and that therefore the trial court erred in taking this issue from the jury and ruling as a matter of law that Ferguson had assumed the risk. We disagree.
[1] While it is true that assumption of risk is ordinarily a question of fact for the jury, see Lippincott v. Colwell, 29 Colo. App. 486, 486 P.2d 26, nonetheless, a plaintiff is barred from recovery if the evidence shows that he voluntarily and unreasonably assumed the risk with knowledge and appreciation of the danger involved. See Mathias v. Denver Union Terminal Railway Co., 137 Colo. 224, 323 P.2d 624.
Ferguson testified that he parked 100 feet ahead of the stalled car because he knew there was a possibility of being trapped between the cars if the stalled car was hit from the rear, and that mechanics routinely took this precaution since people had been killed or seriously injured in similar situations. Despite his knowledge of the danger involved, he chose to attempt to repair the car where it stood rather than move it from the viaduct or call for a tow truck. In addition, Ferguson gave no warning to oncoming traffic other than the raised hood, relying entirely on these devices and the clear visibility and light traffic on the viaduct as safeguards. He continued to depend on these measures, even though shortly before the Gardner collision he heard the screeching wheels of a southbound car slamming on its brakes to avoid hitting the stalled car.
[2] Though Ferguson's willingness to help a stranded motorist is commendable, he voluntarily placed himself in a position of peril. He was not asked to stop, but gratuitously offered aid, even though he knew it was dangerous to repair a vehicle on the roadway. On this record, the trial court was correct in granting defendants' motion for directed verdict. A trial court may properly take a negligence case from the jury and decide it as a matter of law if reasonable minds could reach but one conclusion from the undisputed evidence presented. See Richardson v. Pioneer Construction Co., 164 Colo. 270, 434 P.2d 403.
In view of this disposition, we need not consider Ferguson's contention that the trial court erred in ruling as a matter of law that defendant Zupancic was not negligent.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN concurs.
JUDGE BERMAN dissents.