Ankeny v. Talbot
| Decision Date | 29 September 1952 |
| Docket Number | No. 16684,16684 |
| Citation | 250 P.2d 1019,126 Colo. 313 |
| Parties | ANKENY v. TALBOT et al. |
| Court | Colorado Supreme Court |
Darwin D. Coit, Denver, McNichols, Dunn & Nevans, Denver, for plaintiff in error.
Sandhouse & Sandhouse, Sterling, Wolvington & Wormwood, Denver, for defendants in error.
The parties appear in this court in the same order as in the trial court and we will hereinafter refer to them by name or as they appeared below.
Plaintiff, in his complaint, sought to recover damages resulting from an automobile collision which occurred February 15, 1947, on Highway 113 north of Sterling, Colorado. He alleged that defendant Talbot negligently drove an automobile owned by defendant McKenzie and then being used in the course of Talbot's employment by McKenzie, and that Talbot's negligent operation of said car was the cause of injuries sustained by him. Defendant McKenzie admitted that his truck was being driven by Talbot, with his consent, and denied all other allegations of the complaint. He further defended upon the ground of contributory negligence on the part of plaintiff, and for counterclaim alleged that plaintiff's negligence caused the collision which resulted in damage to his automobile, and sought judgment for the loss thus sustained.
Defendant Talbot admitted that at the time of the accident he was driving a car owned by McKenzie; that the said car was being driven by him with McKenzie's knowlege and consent; and denied that he was then acting in the scope of his employment by McKenzie and that he negligently operated the automobile. In his second defense Talbot alleged that plaintiff, by the exercise of ordinary care could, and should, have seen and become aware of Talbot's position of peril and could have avoided the collision, all of which, as alleged, plaintiff failed to do. In Talbot's third defense he alleged contributory negligence on the part of plaintiff.
In further separate defenses it was alleged that plaintiff's injuries were solely due to his own negligence and that any injuries sustained by him were the result of an unavoidable accident. Talbot filed a counterclaim in which he alleged that plaintiff's negligence caused the accident and that as a result he received injuries and suffered damage, for which he prayed recovery.
Plaintiff answered the allegations of the counterclaims of McKenzie and Talbot by denying the negligence attributed to him, and alleging contributory negligence on the part of each of said defendants.
The case was tried to a jury and resulted in a verdict in favor of Talbot on his counterclaim against plaintiff, in the sum of $4,531. By separate verdict defendant McKenzie recovered on his counterclaim against plaintiff the sum of $150. Judgment was entered on the verdicts and plaintiff brings the case to our court by writ of error.
Plaintiff and defendant Talbot were driving automobiles in opposite directions on said highway just prior to the accident. Talbot was driving north at about 9:15 o'clock at night. The vehicle he was driving was a pick-up truck, the cab of which was occupied by Talbot, his wife, and four children. He was on his way from Sterling to the ranch where he was employed by McKenzie. If Talbot had driven straight into the McKenzie ranch he would have made a right turn from Highway 113. Travelling north, before reaching the entrance to the McKenzie ranch, there was a mailbox located on his left, or west, side of the road. He intended to stop at this mailbox before turning to the right to leave the highway and go into the ranch. When he was approximately 200 or 250 feet south of the mailbox he started to angle across the road going to the left, or wrong, side of the road. He intended to stop in front of the mailbox, remain in the truck, and reach out to see if there was any mail. He stated that he was travelling about twenty-five miles per hour when he started to angle from the right side of the road to the left side thereof. He said he angled across to the left side of the road and was going forward at about five miles per hour at the time of the impact, which took place about fifteen feet south of the mailbox. He testified that after angling across the road the truck was entirely off the surfaced portion of the highway and that he had moved a short distance in a straight line toward the mailbox on the left shoulder of the road. The post to which the mailbox was attached was nine feet west of the surfaced portion of the road. The shoulder of the road was seven feet wide, and the point of impact of the cars was six feet west of the oiled line of the highway.
Plaintiff's automobile approached the scene of the accident from the north and the accident occurred in about the middle of a sharp incline, at the crest of which this car was first visible to Talbot as he began to cross to the left side of the road. The crest of this hill was 450 feet from the point of impact; accordingly, plaintiff's car was travelling down hill at all times after the lights of Talbot's car were visible to him. There is nothing in the evidence to indicate that plaintiff, prior to the accident, was driving his car in an unlawful or negligent manner. It is conceded that he was not familiar with the road over which he was travelling and that defendant Talbot was very familiar with it having driven over it many times. Plaintiff stated, as did other passengers in his car, that in going from Sidney, Nebraska, to Sterling, Colorado, he drove 'between forty and fifty miles an hour,' and that just prior to the collision he was driving 'around forty miles an hour.'
In describing the accident plaintiff said:
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Highway patrolman Asher arrived at the scene of the accident about midnight, after all passengers in the cars had been taken from the scene. Plaintiff's car was in the west barrow pit and the truck belonging to McKenzie was on its left side with the rear end four feet on the oiled pavement. Tire marks made by plaintiff's car were visible for a distance of 168 feet from the point of impact and were located on the west graveled shoulder; they angled to the right toward the west barrow pit. Asher could not determine whether the marks were caused by application of the brakes. In this connection he stated:
At the conclusion of the evidence plaintiff moved for directed verdicts, his motion being in substance as follows:
For a directed verdict in favor of Ankeny and against Talbot on Ankeny's complaint, reserving the right to let the jury assess Ankeny's damages;
For a directed verdict in favor of the plaintiff Ankeny and against Talbot on the counterclaim of Talbot;
For a directed verdict in favor of the plaintiff and against McKenzie on the counterclaim of McKenzie; and
For a directed verdict in favor of the plaintiff and against the defendant McKenzie on the plaintiff's complaint, reserving the right of the plaintiff to go to the jury on the question of plaintiff's damages.
This motion was overruled by the court. The theory of the trial court in submitting the case to the jury was that an issue was raised under the doctrine of last clear chance, and instructions were given covering that doctrine.
The specification of points contains twenty-eight alleged errors. We do not find it necessary, however, to consider all of them. Among the points urged for reversal are the following: That Talbot was negligent as a matter of law, and that his negligence was the proximate cause of the accident; that plaintiff, as a matter of law,...
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...caused by that violation. See, e. g., City and County of Denver v. De Long, 190 Colo. 219, 545 P.2d 154 (1976); Ankeny v. Talbot, 126 Colo. 313, 250 P.2d 1019 (1952); Barsch v. Hammond, 110 Colo. 441, 135 P.2d 519 (1943). In such a case the liability to an injured person flows from the offe......
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...negligence it is error to instruct on the subject and thereby submit to the jury an issue which is outside the evidence. Ankeny v. Talbot, 126 Colo. 313, 250 P.2d 1019.' [133 Colo. 560, 298 P.2d 962]. And in Jacobsen v. McGinness, supra, the Court cited the Stephens case and further comment......
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...is entitled to assume that the other driver will return to his proper lane of traffic. See Bird v. Richardson, supra; Ankeny v. Talbot, 126 Colo. 313, 250 P.2d 1019 (1952). The trial court did not err in withdrawing the contributory negligence issue from the jury's consideration. II. Indemn......
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