Opinion
No. 72-130.
May 1, 1973. Rehearing Denied May 30, 1973. Not Selected for Official Publication.
Brenman, Sobol Baum, Melvin Rossman, Denver, for plaintiff-appellant.
Wolvington, Dosh, DeMoulin, Anderson Campbell, Byron G. Rogers, Jr., Denver, for defendant-appellee.
Ron Swift, plaintiff-appellant, and Laurance Weston, defendant-appellee, were involved in a truck-car accident on June 1, 1970, on Interstate 70 west of Denver. In his complaint, Swift alleged negligence on the part of Weston and sought damages for personal injuries and for the damage to his pickup truck. Weston, in his answer, denied any negligence on his part and alleged that Swift's injuries and damages were the result of the sole negligence of Swift or, in the alternative, that Swift was guilty of contributory negligence. Trial was to a jury which returned a verdict in favor of Weston. Swift appeals from the judgment entered on this verdict. We affirm.
In 1970 there was considerable road construction being undertaken on Interstate 70, and the highway changed from one lane to two lanes at designated places. On the night of the accident, Weston was driving toward Denver in the castbound single lane and Swift was some distance behind. About 500 feet west of the place of the accident, the eastbound lane widened to two through lanes. There was a third lane, an approach to an exit ramp, to the right of the two lanes which created three traffic lanes for a short distance. This was where the accident occurred.
Weston testified that at the point where the highway widened into two lanes he continued straight ahead, did not change lanes, and was not aware of Swift's presence until his car was struck on the right side by Swift's pickup. Swift's testimony was to the effect that, when the highway widened into two lanes, he started to pass Weston in the outside or right lane, while Weston was in the center or left-hand lane. Swift claims that as he was passing, Weston turned into the right lane, striking Swift's truck.
Following the impact, Weston, whose car suffered only minor damages, pulled over and stopped on the right shoulder without further incident. Swift, however, went into a skid and, though he indicated that he that he had regained control of his truck which he tried to steer onto the offramp, he then hit some loose gravel. After skidding farther, the truck flipped and rolled. Swift appeared to have suffered only minor cuts and bruises at the time of the accident, but he was referred to a doctor two days later for an examination and treatment for back pains.
The investigating patrol officer could not determine the point of impact from the evidence at the scene, and he was unable to establish the traffic lane in which the vehicles made contact. Neither vehicle left any braking skid marks prior to the impact, but there were long skid or scuff marks identified as being caused by Swift's tires after impact, in the right lane and in the off-ramp lane.
Swift alleges that the trial court erred in submitting the issue of contributory negligence to the jury. His theory is that the defense of contributory negligence is applicable only if the defendant is negligent and that it is only when negligence by the plaintiff occurs simultaneously with the defendant's negligence that plaintiff is precluded from recovery. Swift contends that, under the facts of this case, either Swift was negligent in swerving into Weston's lane of traffic or Weston was negligent in swerving into Swift's lane of traffic but that, in either event, the other party would not be negligent. We do not agree.
Swift oversimplifies the issues by this argument. There is a direct conflict as to which vehicle swerved. Assuming Weston did move into the right lane, the jury still had to consider Swift's speed, the propriety of his attempting to pass on the right, and whether, as argued by Weston, Swift was attempting to use the off-ramp lane to pass Weston on the right. Where there is conflict in the evidence and a factual dispute exists, the issues of negligence and contributory negligence should be submitted to the jury for determination. Rennels v. Marble Products, Inc., 175 Colo. ___, 486 P.2d 1058. For the same reasons, denial of Swift's motion for a directed verdict was proper.
Swift contends that the court erred in failing to instruct the jury on sudden emergency. We do not agree. This instruction is available only to a person who, through no fault of his own, is confronted with an emergency situation where a decision between alternative courses of action, required to be made practically instantaneously, results in an error of judgment proximately causing an accident. See Daigle v. Prather, 152 Colo. 115, 380 P.2d 670. The facts of the case at hand do not warrant its application. Swift was in the process of passing on the right side of Weston when the collision occurred. There is no evidence that Swift found himself, before contact of the two vehicles, in a sudden emergency situation requiring an instantaneous decision as to what action to take in an attempt to avoid the collision. The evidence is clear that there was a fact question for the jury as to whether or not Swift was negligent, but that question dealt with whether Swift should have been passing on the right, his speed, and in what lane he was actually driving. At the point
in time that Swift determined that the collision was imminent, Swift had already done, or was doing, any act that the jury might find to be a proximate cause of the accident.
Swift further contends that the sudden emergency instruction should have been given since he was confronted with a sudden emergency after the collision. At that point, Swift necessarily had to make instantaneous decisions as to what actions to take to avert further damages; however, such actions, whether negligent or not negligent, are irrelevant in a determination of the proximate cause of the collision which preceded them and upon which liability is based.
Swift asserts that it was error to have instructed the jury on the issue of mitigation of damages. Since Weston prevailed, and we are affirming the judgment, this issue becomes moot.
The trial court denied two motions by Swift for a mistrial, and Swift cites these rulings as reversible error. The first assertion is that Weston was allowed to impeach his own expert witness and to pose an improper question to this witness. The record does not support either assertion.
The second motion was made during closing arguments. Swift complained that Weston's counsel speculated in his summation to the jury that Swift might have been speeding at the time of the accident and that Swift might have been under the influence of intoxicating liquor. Counsel may comment, in closing argument, on the evidence and on any reasonable inferences that may be drawn from the evidence. Idaho Gold Coin Mining and Milling Co. v. Colorado Iron Works Co., 49 Colo. 66, 111 P. 553. There was evidence that Swift was traveling 40 or more miles per hour, that he was attempting to pass another vehicle on the right, that there was road construction in the area, that there was loose gravel on the road, and that the truck skidded a considerable distance, rolling completely over at least once. These facts could give rise to a reasonable inference that Swift may have been driving too fast under the circumstances.
In regard to the second alleged instance of speculation, although there was no direct evidence that Swift had been drinking on the night of the accident, there was unrebutted evidence that Swift told one of the doctors called as a witness, in the recital of his medical history, that he (Swift) drank four or five beers every evening. Again, it would not be unreasonable for the jury to contemplate the inference that Swift had consumed a number of beers on the evening of the accident.
The conduct of the trial is the responsibility of the trial court, and the latitude allowed counsel in closing argument is a matter better left to the sound discretion of that court. In the absence of an abuse of that discretion, the rulings of the court will be affirmed on review. Denver City Tramway Co. v. Nicholas, 35 Colo. 462, 84 P. 813. We find no abuse of that discretion in the court's rulings.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.