Arps v. City and County of Denver

• Decision Date: 05 July 1927
• Docket Number: 11676.
• Citation: 257 P. 1094,82 Colo. 189
• Parties: ARPS v. CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

257 P. 1094

82 Colo. 189

ARPS v. CITY AND COUNTY OF DENVER et al.

No. 11676.

Supreme Court of Colorado, En Banc.

July 5, 1927

Rehearing Denied July 22, 1927.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Action by Elwyn A. Arps against the City and County of Denver and another. Judgment of nonsuit, and plaintiff brings error.

Reversed and remanded, with directions.

C. H. Pierce and J. B. Manby, Jr., both of Denver for plaintiff in error.

Henry E. May, R. T. Wilson, Smith & Brock, Milton Smith, Jr., and Charles R. Brock, all of Denver, for defendants in error.

ADAMS J.

The parties' names appear here in the same order as at the trial, and will be referred to as plaintiff and defendants when not otherwise designated.

Arps sued the city and county of Denver and D. G. Gordon, doing business as the Gordon Construction Company, to recover for personal injuries and also for damages to an automobile that plaintiff was driving, which was overturned on a pile of loose sand and gravel left by the construction company across a city street. Plaintiff alleged negligence; defendants claimed contributory negligence. At the close of plaintiff's testimony the court granted a nonsuit on the ground of contributory negligence. Plaintiff brings the case here for review.

The construction company had a contract with the city to pave a nearby alley and had dumped the sand and gravel on the street. It made a pile about 4 41/2 [82 Colo. 192] to 5 feet high and extended along the street for a distance of about 75 to 85 feet. It almost blocked East Twenty-Eighth avenue between Cherry and Dexter streets, when the accident occurred. The only place on the street not blocked by the obstruction was about 5 or 6 feet in width, on the opposite side from which plaintiff was driving. He was driving on the right-hand side of the street. There were no lights or warnings to indicate the presence of the obstruction on the street, although section 1878 of the Denver Municipal Code, 1917, provides that 'red lights shall be placed and maintained from sunset to sunrise of each day at both ends of every obstruction upon any street, and at intervals of seventy-five feet along the same.' After sunset on October 7, 1924, at about 6:30 p. m., plaintiff was driving an automobile along East Twenty-Eighth avenue, in an easterly direction, and ran into and upon the pile of sand and gravel, resulting in the overturning of the automobile on the pile and the consequent injuries to himself and to the car that he was operating. The testimony showed that at the time of the injury the sky was cloudy; the evening was dark except for some reflected light from the sun shining on the clouds; that the gravel was of a grayish color and the street a 'dusty color'--'just at that time of night,' said the witness, 'you could hardly tell the gravel from the ground.'

We quote the following from the questions propounded to plaintiff and his answers thereto:

'Q. What lights were you using on your car? A. I was using the dim lights; I never use my bright lights in town unless there is some bad corner; if there is a bad corner I switch them on to warn any motorist coming from the side; otherwise I use my dim lights unless I want to go a little bit faster.

'Q. Mr. Brock has been interested to discover how far dimmers throw a light. This was your Stephens car; how far do the dimmers throw a light? Can you help us any on that? A. Well, if anybody has driven a car with the regulation dim lights on they ought to know; the light shows just right down 6 or 8 feet to the ground, and then it is just a diffused light which if any particular object showed up then, oh, standing up pretty high, 20 feet, you will probably catch sight of it, but it is--but there is no distinct light, from where you are sitting you do not see any light on the road out 20 feet in front of you.

'Q. Could you see this pile of sand and rock before you got onto it that night? A. No, sir; I know I was looking ahead too.'

The following is from plaintiff's cross-examination:

'Q. When did you first learn that there was sand and gravel out here upon Twenty-Eighth avenue? A. When I struck it.

'Q. You had not seen it in passing along before? A. No, sir.

'Q. How close were you to it when you saw it? A. I do not imagine I was more than--oh, all I recollect is just that kind of a glimpse; right as I was right onto it; probably 5 or 6 feet.

'Q. Could you see at that time that pile of sand from the west side of Cherry street? A. From the west side?

'Q. Yes. A. No, sir.

'Q. Or from the center of Cherry street? A. No; I could not do so.

'Q. If a person had been walking across Twenty-Eighth avenue going from the walk on the south to the walk on the north or from the walk on the north to the walk on the south, could you have seen that person as you approached Cherry street? A. Yes; I imagine I could have.

'Q. You could have seen the individual? A. Probably you could see an individual before you saw anything on the road.

'Q. If that is what you could do, then could you have seen this pile of sand and gravel? A. I--I could not answer that, because I have never tried.

'Q. Now, I want you as definitely as you can to state the length of the light in front of your car made by your lights which you had on that night; that is, how far did those lights extend from the car? A. About, probably the first place that you would notice them as a direct light on the ground, would be maybe 8 feet.

'Q. Not more than 8 feet? A. Not more than 8 or 10 feet.

'Q. Traveling as you were traveling, could you have stopped your car within 8 feet? A. Well; if a person had--no you could not quite, you could almost, but you could not quite if you had seen it with the idea of stopping there.'

The distance that the car went up and on the sand and gravel pile is not exactly stated; it is given variously from 'about a car's length' to 27 feet. Plaintiff turned into and upon the obstruction to avoid striking a telephone pole support, which he would have struck if he had not turned.

The car belonged to plaintiff's mother. Before this action was commenced, the mother assigned to plaintiff 'for his own use and benefit' her claim for damages against the defendants. It was so alleged in plaintiff's complaint and admitted.

There was ample evidence of defendants' negligence and of the injuries to plaintiff and to the automobile. They may be taken as accepted facts. Our review treats only of the claim as to plaintiff's alleged contributory negligence.

1. The large number of cases from other jurisdictions, cited in the briefs, might lead one to suppose that there is a dearth of local precedents. No two cases are alike, particularly in negligence and contributory negligence, but a review of the Colorado decisions will disclose an amplitude of well-defined legal principles repeatedly employed in cases of the same general nature, quite sufficient for our purposes here, although we shall refer to a few of the decisions in other jurisdictions by way of illustration. As to the general principles germane to the case at bar, there is a continuity and consistency manifest in all of the Colorado cases, even where in later decisions no direct reference is made to those that went before. If there seems to be any noticable variation in the adjudications wherever found, one can generally put one's finger on it by a simple reference to different states of facts. As said by the late Chief Justice Cooley in Railroad Co. v. Van Steinburg, 17 Mich. 120:

'The difficulty in these cases of negligent injuries is, that it very seldom happens that injuries are repeated under the same circumstances; and, therefore, no common standard of conduct by prudent men becomes fixed or known.'

These remarks of that learned jurist and author have been quoted not less than three times in decisions of this court and our former Court of Appeals. Phillips v. Denver City Tramway Co., 53 Colo. 458, 462, 128 P. 460, Ann.Cas. 1914B, 29, and other cases referred to hereafter in paragraph 9 of this opinion.

2. The theory upon which the nonsuit was granted was the conclusion of the trial court that plaintiff's testimony showed on its face that he was driving at night in a dark place, and was going so fast that he could not stop or avoid the obstruction within the distance of his lamps; that if he had not been so driving, the injury would not have occurred; that he was therefore guilty of contributory negligence, and so, it was held, he could not recover.

Our most serious difficulty is to discover in the record the statements attributed to the plaintiff. We have been unable to find them. Reference to the last question and answer of the witness, the plaintiff, Arps, quoted in the above statement of facts, would seem to indicate that what the witness really said was that he could almost but not quite stop within the distance of his lights. It might make a vast difference in the nature of the accident whether this was sufficient to have avoided it. To illustrate: To be able to 'almost' stop an automobile at the brink of a chasm or excavation in the street, or before a moving railroad train, would be manifestly too late, but to have been able to 'almost' stop before a sloping sand and gravel pile in the street, if the nature of the obstruction had been such that plaintiff could have seen it in time, it is possible it might have been enough to have given him an opportunity to have retarded the progress of the car so as to have avoided its being overturned on the sand pile. How can we declare, as a matter of law, that it would have turned over under such circumstances, any more than we can say that it would not have done so? If the question provokes debate among...