Opinion
No. 20807
Decided October 25, 1965. Rehearing denied November 8, 1965.
Action for damages for alleged wrongful death and property damage arising out of a rear-end collision of motor trucks. Judgment for plaintiff.
Affirmed.
1. AUTOMOBILES — Collision — Evidence — Jury — Facts. In action involving rear-end collision of two motor trucks, there was sufficient competent evidence to permit jury to resolve the facts.
2. NEGLIGENCE — Contributory — Undisputed Facts — Inference — Matter of Law — Trial Court. It is only in the clearest of cases, when the facts are undisputed and it is plain that all intelligent men can draw but one inference from them, that the question of contributory negligence is ever one of law for the court.
3. EVIDENCE — Exhibit — Body of Victim — Traffic Accident — Appeal and Error. Admission of exhibit in evidence showing body of traffic accident victim at scene of accident was not error.
4. Credibility — Minor — Witness — Accident — Jury. Credibility of twelve year old girl who was one of two witnesses at scene of truck accident was for the jury to determine.
5. DEATH — Wrongful Death Action — Complaint — Statute — Instructions — Damages. In wrongful death action, complaint made sufficient reference to wrongful death statute to sustain instructions covering the subject of damages which were recoverable for wrongful death.
6. DAMAGES — Testimony — Insurance Adjuster — Truck — Appeal and Error. Admission of testimony of insurance adjuster concerning damage to plaintiff's truck involved in rear-end collision was not prejudicial error.
Error to the District Court of Yuma County, Hon. Hilbert Schauer, Judge.
Wormwood and Wolvington, Paul D. Renner, Bruce Ownbey, for Plaintiffs in error.
Francis A. Benedetti, for defendant in error.
The parties appear here in reverse order to their appearance in the trial court. We will refer to plaintiffs in error as defendants or by name, and to the defendant in error as the plaintiff.
The controversy arises out of a collision of motor trucks which were being used in hauling grain. The wife of the plaintiff was the driver of one of the trucks and the defendant Dickson, who was employed by Reidesel, was the driver of the other. Plaintiff's wife was killed as a result of the accident. He sought damages for the alleged wrongful death of his wife, and for damage to property. The defendants by their answer denied that they were negligent and affirmatively alleged that any damages suffered by the plaintiff were proximately caused by the negligence of his wife. Each of the defendants filed a counterclaim, that of the employer being based on a claim for damage to his truck, and that of the employee being based on a claim for personal injuries.
Trial was to a jury. After plaintiff rested, defendants moved for a dismissal on the ground that plaintiff had failed to establish a prima facie case of negligence against them, and that the evidence showed that plaintiff's wife was guilty of contributory negligence as a matter of law. This motion was denied. At the close of all the evidence the defendants moved for a directed verdict, which motion was denied. The jury returned a verdict in favor of the plaintiff in the sum of $20,333.33. Judgment was entered on the verdict and defendants seek reversal by this writ of error.
The defendant Dickson and one Beverly Brown, a 12-year-old girl who was a passenger in the truck driven by plaintiff's wife, were the only two witnesses who were on the scene at the time of the accident. Their testimony is in sharp conflict on material details relating to the accident. Both trucks were heavily laden with wheat and were travelling in a southerly direction on the highway, the defendants' truck being ahead of that driven by plaintiff's wife. The latter truck struck the rear end of the vehicle driven by Dickson. The accident occurred in broad daylight on a bridge that was 20 feet wide and 165 feet long. The point of impact was 38 feet from the north end of the bridge. The road leading to the bridge from the north is 22 feet wide and for a distance of at least a mile and a half traverses hilly ground but does not deviate from a straight line as to direction. Each truck driver knew of the presence of the other upon the highway since their relative positions thereon had not materially changed for several miles.
Plaintiff's Exhibit "C" is a profile drawing of the bridge and the road to the north illustrating the sharp variations in elevation over which one would pass in approaching the bridge from that direction. The defendants' truck stood eight feet in height. A duty qualified engineer testified that a truck of that height at the north end of the bridge would be invisible to one approaching from the north until he had reached the crest of what was referred to as a "knob" in the downward path of a long hill. From this knob to the bridge there is a relatively steep grade to the point of impact, which would make it difficult to bring the heavily loaded truck to a stop. Beverly Brown testified that the defendants' truck was stopped on the bridge; that "it was just not moving" and that it was in the center of the road. The sheriff of Yuma county, in which the highway is situated, testified that there would have been enough room on the bridge for the two trucks to pass if defendants' truck had not been in the center of the roadway.
The foregoing statements concerning the facts do not purport to include more than a broad general description of the nature of the accident, and it must be understood that there are numerous details which are not specifically mentioned. No good purpose would be served by setting forth in this opinion the many conflicting versions of what happened, from which the jury might legally draw reasonable inferences relating to the proximate cause of the tragic accident.
[1,2] The jury was properly instructed as to the law applicable to the issues of negligence on the part of the driver of the defendants' truck, and contributory negligence on the part of the plaintiff's wife. We find that there was competent evidence upon receipt of which it became necessary for the trial court to permit opinion by citations to all of the numerous opinions in which this court has held that it is only in the clearest of cases, when the facts are undisputed and it is plain that all intelligent men can draw but one inference from them, that the question of contributory negligence is ever one of law for the court. We direct attention to Swanson v. Martin, 120 Colo. 361, 209 P.2d 917, in which other cases are cited. The thrust of the argument for reversal is that the trial court should have found as a matter of law, (1) that the defendant driver was not negligent, and (2) that the plaintiff's wife was guilty of contributory negligence as a matter of law. Neither of these arguments is tenable, and the trial court did not err in denying the motions of the defendants.
[3-5] We have carefully considered other arguments advanced by counsel for the defendants as grounds for reversal of the judgment. We hold that the admission in evidence of Exhibit "K" was not error. Said exhibit was taken at the scene of the accident and showed the body of plaintiff's wife who was killed in the accident. We further hold that the court did not err in refusing to strike the testimony of Beverly Brown. Her credibility as a witness was for the jury to determine. The objection to Instruction No. 13, which covered the subject of damages which are recoverable for wrongful death, was premised upon the proposition that the plaintiff had failed to specifically refer in his complaint to the wrongful death statute. It is argued that Rule 9 (h), R.C.P. Colo., requires a more definite reference to the statute than is contained in the complaint. We find no merit in this argument.
While it is contended that testimony of Victor Clabaugh, an insurance adjuster, concerning the damage to the truck of the plaintiff, was improperly admitted, we find no prejudicial error with regard thereto.
The judgment is affirmed.
MR. JUSTICE SUTTON dissents.
MR. JUSTICE SCHAUER not participating.