Opinion
Jan. 30, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 382
George A. Hinshaw, Aurora, Irvin M. Kent, Denver, for plaintiffs-appellants.
Burnett, Watson, Horan & Hilgers, Myron H. Burnett, Denver, for defendant-appellee.
SILVERSTEIN, Chief Judge.
Plaintiffs, William R. Sielsky and his father, appeal from a judgment dismissing their action brought against Eva Johnson to recover damages for personal injuries received by the son in an automobile accident. The action was tried to a jury which entered a verdict for the defendant. Plaintiffs assert the court erred in refusing to direct a verdict against defendant. They further assert that the court erred in instructing the jury on contributory negligence and assumption of risk. We find no error in the court's refusing the directed verdict but conclude that it was error to instruct the jury on either contributory negligence or assumption of risk. Therefore, we reverse the judgment.
The following facts are undisputed. The accident occurred at approximately 10:00 P.M. on December 6, 1967, on South Sheridan Boulevard in Denver when the vehicle in which Sielsky, the son, was riding overturned. Sheridan is a four lane highway with a painted median dividing the North and South bound lanes. The pavement was dry and visibility good. The posted speed limit is forty miles per hour. Sielsky was a guest passenger in a van being driven by Mark Brooks and proceeding north in the right hand lane. Defendant Johnson entered Sheridan from a private driveway on the west side of the street, crossed the two south bound lanes and the median area, and turned left into the left hand north bound lane, and then moved to the right hand lane ahead of the Brooks van. All other material facts were in dispute and the testimony thereon in direct conflict.
According to the testimony of plaintiffs' witnesses, including Sielsky, Brooks and other passengers in the van, as defendant's car came slowly out of the driveway and turned in front of the van Brooks took his foot off the accelerator. As the van approached defendant's car, defendant crossed into the right hand lane directly in front of the van. Brooks applied his brakes and swerved to the left. The van did not strike defendant's car but turned over, injuring plaintiff.
According to defendant's evidence, which included her testimony and that of a passenger in her car, defendant looked both ways before entering the roadway, saw the lights of the van about 600 feet to the south and proceeded into the north bound lanes. While proceeding north she saw, in her rear-view mirror, the lights of the van quickly approaching. Mrs. Johnson's estimation of how far behind her the van was when it turned over varied from three or four car lengths to approximately 200 feet. The evidence as to whether the van was exceeding the speed limit was also in dispute.
I
Plaintiffs assert they were entitled to a directed verdict because defendant violated city ordinances in crossing the median and turning left where there was no established crossover, that such violation was negligence Per se, and that under the evidence such negligence was indisputably a proximate cause of the accident. Although violation of an ordinance constitutes negligence Per se, the violation does not establish liability unless a causal connection is established between the violation and the injury. Kelley v. Holmes, 28 Colo.App. 79, 470 P.2d 590. In view of the conflicting evidence presented here, reasonable men could have concluded that defendant's actions were not a proximate cause of plaintiff's injury. Therefore it was for the trier of fact to make this determination, Kelley v. Holmes, Supra. See Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167; and Scott v. Matsuda, 127 Colo. 267, 255 P.2d 403.
II
The plaintiff passenger stated that Brooks, driver of the van, consistently drove too fast and used poor judgment. The context in which this statement was made was that this was plaintiff's opinion of Brooks' driving prior to the time that plaintiff became a passenger on the trip here involved. It was not related to Brooks' driving immediately prior to, and at the time of, the accident. Defendant relies on plaintiff's knowledge of Brooks' asserted inadequacies as a driver as ground for the giving of the instructions on assumption of risk and contributory negligence. The record does not support the giving of these instructions.
In Seal v. Lemmel, 140 Colo. 387, 344 P.2d 694, a case in which, as here, a passenger in one car sued the driver of the other car involved in an accident, our Supreme Court stated,
'As between the plaintiff and defendant the plaintiff not only assumed no risk, but had the right to assume that defendant would obey the traffic laws. He assumed no risk of negligence on the part of defendant by reason of his choosing to ride in an emergency vehicle. The doctrine has been applied to a guest suing the driver or owner of another vehicle; however, those cases rest upon different facts than those before us and are based mainly upon imputed negligence, independent negligence, joint enterprise or control or contributory negligence.'
In the instant case there is no claim of imputed negligence and no evidence of independent negligence, joint enterprise or control, and no acts of contributory negligence at the time of the accident. Here the only risk assumed by plaintiff was that of Brooks' driving, which defendant admits cannot be imputed to plaintiff.
The above principles apply to the instruction on contributory negligence. In Boulder Valley Coal Co. v. Jernberg, 118 Colo. 486, 197 P.2d 155, the Supreme Court said, '(W)e have classified assumption of risk as a form of contributory negligence, as has been done in Restatement of the Law, Torts, s 466.' Plaintiff's mere presence in the van, without any showing of joint control or of the other factors above set forth, does not establish contributory negligence as between plaintiff and the driver of the other vehicle. See Seal v. Lemmel, Supra; and Jacobsen v. McGinness, 135 Colo. 357, 311 P.2d 696.
Our disposition of this case renders discussion on plaintiff's other assertion of error unnecessary.
The judgment is reversed and the cause remanded for a new trial.
PIERCE and SMITH, JJ., concur.