Opinion
Wormwood, Wolvington & Dosh, William P. DeMoulin, Denver, for Ruth Frances Spano and Midwest Haulers, Inc.
Yegge, Hall & Evans, Eugene O. Daniels, Denver, for George Arthur Crisman, etc.
Zelinger & Wanifuchi, Eugene Zelinger, Denver, for John Yandle.
DWYER, Judge.
These two writs of error were consolidated by order of the Supreme Court and later transferred to this court pursuant to statute.
John Yandle, defendant in error here, brought this action to recover damages for injuries allegedly sustained as a result of a multiple automobile rear-end type of collision. The accident occurred on January 26, 1968, on Wadsworth Blvd., two blocks north of Colfax Avenue, in what is now Lakewood, Colorado. The car driven by Yandle was struck from the rear by a car driven by the defendant, Gregory Crisman, after Yandle had stopped for other cars in front of him. After the impact of these two vehicles, the automobile driven by the defendant, Ruth Spano, struck the rear of the Crisman vehicle. In addition to Ruth Spano and Gregory Crisman, the plaintiff named as defendants the owners of the two cars which the defendants were driving. driving.
At the close of the evidence, the trial court granted plaintiff's motion for a directed verdict against all defendants and submitted the case to the jury on the issue of damages only. The jury returned its verdict fixing plaintiff's damages in the amount of $30,000, and the court entered judgment against the defendants jointly and severally for this amount.
In seeking reversal of the judgment, both the defendant, Gregory Crisman, and the defendant, Ruth Spano, contend that the trial court erred in entering the directed verdict against them.
I.
The directed verdict against Crisman was proper. Immediately prior to the collision, plaintiff's vehicle was legally and properly stopped behind a line of cars, which were stopped at a signal light. The defendant, Crisman, on cross examination, testified that prior to the impact he was driving at a speed of 30 to 35 m.p.h. He testified that immediately prior to the impact, his attention was diverted from the traffic in front of him by activity around the scene of a prior accident. Crisman further testified that when he returned his attention to the traffic ahead of him he was about one car length behind the plaintiff's stationary vehicle and that he was unable to stop before colliding with the rear of plaintiff's truck. Thus, Crisman admitted all the facts necessary to establish his negligence. The court properly determined that Crisman was negligent as a matter of law and properly directed a verdict in favor of the plaintiff on the issue of Crisman's liability. The facts of this case are analogous to the factual situations in Rhodig v. Cummings, 160 Colo. 499, 418 P.2d 521 and Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450. In both cases, the Supreme Court upheld the action of the trial court in directing verdicts for the plaintiff.
II.
The court improperly directed a verdict against the defendant, Ruth Spano. In her testimony, Ruth Spano admitted that she failed to stop her car in time to avoid colliding with the rear of Crisman's car. This admission justified the court's finding that she was negligent. However, the question of whether that negligence was the proximate cause of any injury or damage to plaintiff remained a factual issue in the case. In this question the defendant, Spano, testified that the impact between her car and Crisman's car was slight and caused almost no damage to either vehicle. She did not admit that the impact of her car with Crisman's car caused a second impact between Crisman's vehicle and plaintiff's truck. The issue of proximate cause was one of fact which should have been submitted ot the jury.
It is plaintiff's position that his evidence established without contradiction that the Spano collision with the Crisman vehicle caused the Crisman vehicle to collide with plaintiff's truck a second time. Both the defendant, Crisman, and a passenger in his car testified that such a second impact occurred. The defendant, Spano, was entitled to have the jury pass on the credibility of this testimony presented by plaintiff and to have the jury determine from all of the facts in evidence whether her conduct was the proximate cause of any injury or damage to plaintiff. The jury was not required to accept this testimony as establishing the truth of the facts to which such testimony was directed even though it was not contradicted by other direct evidence. Swanson v. Martin, 120 Colo. 361, 209 P.2d 917; United Brotherhood of Carpenters and Joiners of America, Local Union No. 55 v. Salter, 114 Colo. 513, 167 P.2d 954; Nelson v. Lunt, 74 Colo. 265, 220 P. 1006.
III.
The error of the court in directing a verdict against Spano requires a reversal of the judgment entered against her. Under the facts of the present case, reversal of the joint and several judgment as to Spano requires a reversal of the judgment as to all joint defendants including Crisman. The case was tried as a whole against all defendants, and the court directed the jury to return one verdict in favor of the plaintiff and against the defendants, jointly and severally. The Supreme Court has held in similar situations that the existence of prejudicial error as to one of the joint defendants calls for a reversal as to all. Irvin v. Blair, 100 Colo. 349, 68 P.2d 28; Fulton Investment Co. v. Fraser, 76 Colo. 125, 230 P. 600.
All of the defendants contend that the verdict returned by the jury was excessive. Since the case must be retried, it is unnecessary to consider this claim of error.
The judgment is reversed, and the cause is remanded for a new trial on all issues.
ENOCH and DUFFORD, JJ., concur.