Anderson v. Munoz, 20976
| Decision Date | 14 February 1966 |
| Docket Number | No. 20976,20976 |
| Citation | 159 Colo. 229,411 P.2d 4 |
| Parties | Alan ANDERSON, Plaintiff in error, v. Elsie MUNOZ and Humberto Munoz, Defendants in Error. |
| Court | Colorado Supreme Court |
Williams & Zook, William A. Trine, Boulder, for plaintiff in error.
Smith, Pyle, Johnson & Makris, Roger L. Simon, Denver, for defendants in error.
The parties appear here in the same order as they appeared in the trial court and will be referred to accordingly, or by name. Humberto Munoz, husband of the defendant, was named in the complaint by virtue of the family car doctrine; however, his name does not appear in the evidence and will not be referred to herein.
Plaintiff in error seeks reversal of a judgment entered by the trial court on a verdict of a jury which found against the plaintiff on his complaint and against the defendant on her counterclaim, each claiming damages arising out of an automobile collision.
By amended complaint the plaintiff alleges that he was operating an automobile in a westerly direction on the Boulder-Denver turnpike at approximately 7:10 A.M., on October 30, 1962, and that the defendant was operating an automobile in a negligent manner by backing down the turnpike in the same lane of traffic in which plaintiff's vehicle was proceeding. This course of action caused the vehicles to collide, resulting in serious and permanent injuries to him for which he seeks damages. It is alleged that the collision occurred approximately one mile west of the Federal Boulevard overpass, on the turnpike.
By answer, defendant denied the material allegations of the complaint and affirmatively pleaded, inter alia, contributory negligence on the part of the plaintiff and unavoidable accident. In her counterclaim, as amended, defendant alleged that the accident was caused by plaintiff's negligence, resulting in her alleged injuries.
By reply, as amended, plaintiff denied that he was negligent and affirmatively pleaded, inter alia, contributory negligence on the part of the defendant.
Testimony was given by four witnesses; the plaintiff, the defendant, who was called by the plaintiff for cross- examination as an adverse witness, a member of the state patrol who visited the scene of the accident a few minutes after the accident, and a professional photographer who took pictures of the highway. The testimony was very extensive and detailed and supported by many exhibits. We will review it as briefly as may be consistent with the nature of the case.
The following facts are uncontroverted. The accident occurred on the morning of October 30, 1962. It was a bright morning, no haze, no clouds in the sky, and the turnpike was dry and free of any obstructions or debris. We limit our discussion of the highway to that portion of the turnpike between the overpass at Lowell Boulevard and the overpass at Federal Boulevard, a distance of one speedometer mile. The view both ways from either overpass to the other was unobstructed. Adjoining the right side of the westbound lane (in which these parties were traveling) is a graveled should approximately ten feet in width, its existence beyond the bridge at Federal Boulevard being known to both parties.
Both parties resided in Denver and were employed in Boulder and had commuted to and from their work over this turnpike for a period of three years. The parties were due in Boulder at 8:00 A.M., having left their respective homes in Denver a few minutes before 7:00 A.M. Both parties were traveling in the right-hand, or west-bound lane. Plaintiff testified that he had been traveling at a speed of forty miles per hour and defendant testified that she had been traveling at a speed of 'probably 55 to 60.' Evidently the defendant reached the east approach to the Lowell Boulevard overpass, hereinafter referred to as the 'bridge,' at approximately the same time that plaintiff passed over the Federal Boulevard overpass. Defendant was on the east approach of this bridge, proceeding westward, when she felt a 'bumping' and suspected that she had a flat tire. She 'vaguely remembered' applying her brakes just a few feet from the entrance to the bridge, came to a stop, changed gears, and, instead of proceeding in a forward direction over the bridge and parking on the shoulder to the right of the turnpike as one left the bridge, she backed her car in the same lane, the west-bound lane, and to the east for a distance of 100 yards. She was either still backing or had stopped when her vehicle was struck in the rear by plaintiff's vehicle traveling in the same lane toward the west.
Defendant gave various reasons for her actions, although her testimony is very vague in some particulars. Many things were passing through her mind during this backing operation. On account of the flat tire, she wanted to park her car for the day and flag down a car going west so that she could get to Boulder in time for her employment and then call the AAA to come out for the car. She wanted to back the car to a suitable place where she could bring it to a halt and then drive onto the shoulder in a forward direction, as she had an aversion to backing into a parking place. She was probably still backing when struck by the Anderson vehicle and at that time had expected to back still further as she had not found a stopping place to suit her. She had stopped at no place along the way to attempt a turn onto the shoulder, which she admitted was wide enough to accommodate her car. When her tire went flat on the east approach of the bridge she did not continue her forward motion for the short distance to the should on the west side of the bridge because she did not want to drive that far on a 'bumpy' tire, although backing her vehicle for 100 yards on this bumpy tire most likely was as damaging as proceeding forward. She admitted that she could have and probably should have backed only to the shoulder a few feet back of the bridge entrance, but did not think of it. She could give no reason why she had not seen the Anderson car approaching in her lane from the east until she had backed up 100 yards and was within 200 yards of the Anderson car. She claimed that she was watching the traffic by means of her rear view mirror at all times, and looking back over her shoulder, probably through the back car window, at all times. When she saw the Anderson car coming, instead of stopping, or turning onto the shoulder, she continued backing an additional ten feet or more. She then stopped, changed gear and turned her wheels slightly to the right, during which space of time Anderson covered approximately 500 feet. She might have continued backing had she not seen the car approaching. These were facts properly submitted for jury determination relative to the alleged negligence on her part.
We now turn to the actions of Anderson during this period, facts upon which defendant's claim of negligence on his part are based. He was at a point between 100 and 200 yards distant from the bridge, at which time he did not realize that there was any emergency. He was not aware of the bridge, although it was within his range of vision. He saw the Munoz car in the same lane, but presumed it was traveling in the same direction he was moving. He was traveling faster than the Munoz car and there were no cars intervening. Suddenly, he realized that the distance between the two cars was closing rapidly and that an emergency had arisen requiring action. He contemplated making a left turn, applied his brakes and attempted to turn out. There was not enough time and, although he was looking directly at the Munoz car and could see only its rear end, he could not tell whether it was barely moving forward, barely moving backward, or whether it was standing still. At that moment, the collision occurred. Resultantly, he was thrown against his windshield nad received the injuries related. He, nevertheless, succeeded in getting out of the car and lying down on the shoulder of the turnpike until the ambulance arrived. He testified:
'Q * * * under the circumstances that you have described in connection with the crash, the accident on October 30, would you state whether or not you believe you could have avoided it under the circumstances?
* * *
* * *
'A I don't believe I could.'
He stated that if he had realized from a distance of 100 to 150 yards that the distance between the two cars was rapidly closing, he could have avoided the accident, but he did not relaize it.
This was the testimony as to his alleged negligence which was submitted to the jury for its consideration.
At the close of the testimony, defendant moved for a directed verdict, both on plaintiff's complaint and her counterclaim, on the ground that plaintiff had failed to prove a prima facie case regarding defendant's negligence, and that plaintiff's negligence had been shown as a matter of law. Ruling was reserved and the record does not show whether the court ever ruled on the motion.
Plaintiff moved for a directed verdict on defendant's counterclaim on the ground that the evidence had shown conclusively that defendant had been guilty of negligence as a matter of...
To continue reading
Request your trial
-
Reid v. Berkowitz, Court of Appeals No. 12CA0769
...requires the trial court to instruct on a party’s theory of the case if it is supported by competent evidence, Anderson v. Munoz, 159 Colo. 229, 237, 411 P.2d 4, 8 (1966), and entitles a party to an instruction embodying the party’s theory if there is sufficient evidence in the record to su......
-
Davis v. Cline, 11
...to an instruction on her theory when it was supported by competent evidence, as has so often been announced by this Court. Anderson v. Munoz, 159 Colo. 229, 411 P.2d 4; Haller v. Gross, 135 Colo. 218, 309 P.2d 598; Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862; Neilson v. Bowles, 124 Colo.......
-
Federal Ins. Co. v. Public Service Co.
...legal theory when the instruction is consistent with existing law. Davis v. Cline, 177 Colo. 204, 493 P.2d 362 (1972); Anderson v. Munoz, 159 Colo. 229, 411 P.2d 4 (1966); Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674 Under the circumstances of this case, prejudicial and reversible error......
-
Downing v. Overhead Door Corp.
...fairly presents the issues and is supported by the evidence, the parties are entitled to have it given. See Anderson v. Munoz, 159 Colo. 229, 411 P.2d 4 (1966). However, CJI-Civ.2d 14:24 (1980) (Notes on Use) cautions that the instruction is "if there is sufficient evidence of the basic fac......