Barsch v. Hammond

• Decision Date: 15 March 1943
• Docket Number: 14965.
• Citation: 135 P.2d 519,110 Colo. 441
• Parties: BARSCH v. HAMMOND.
• Court: Colorado Supreme Court

135 P.2d 519

110 Colo. 441

BARSCH v. HAMMOND.

No. 14965.

Supreme Court of Colorado

March 15, 1943

In Department.

Error to District Court, Pueblo County; Harry Leddy, Judge.

Action by Louise B. Hammond against Roy Barsch to recover for the death of plaintiff's husband resulting from an automobile collision. To review a judgment for plaintiff, defendant brings error.

Affirmed.

McHendrie, Burris & Pointer, of Pueblo, for plaintiff in error.

V. G Seavy, of Pueblo, and H. T. McGarry, of Colorado Springs, for defendant in error.

BAKKE Justice.

This is an automobile accident case in which plaintiff in error seeks to reverse a judgment for $2,500 and costs entered in accordance with the verdict of a jury in favor of Louise B. Hammond, to whom we hereinafter refer as Mrs. Hammond, defendant in error, whose husband died as a result of injuries sustained in the accident. A default judgment for $5,000 had been entered prior to this one, but due to a deficiency in the service of process, counsel for Mrs. Hammond confessed error; the default judgment was set aside and a trial had on the merits. Plaintiff in error Barsch, was the owner of the truck which was being driven by his brother, his admitted agent, at the time of the accident.

The accident occurred about 3:45 a. m., October 18, 1937, near a filling station in the little town of Pinon about thirty miles south of Colorado Springs on U.S. Highway 85, where a family by the name of Holcomb operates a restaurant and service station. The place served as a 'truck stop' for a number of truck drivers using the highway. The highway--an eighteen foot wide cement road--at this point is fairly level for quite a distance in each direction, although there is a curve to the left in the road towards Colorado Springs about fifteen hundred feet from the scene of the accident. There was a driveway leading off the highway to the Holcomb buildings on the west side of the road. The morning of the accident Hammond was driving south alone in a 1937 Ford sedan on this road from Colorado Springs to Pueblo, and Barsch was driving north in a thirty-two foot long tractor-trailer. Upon reaching the driveway to the filling station, Barsch turned his truck to the left without making a left hand signal, and the Hammond car crashed into it with such force that the front of his car was smashed in pinning him, Hammond, under the steering wheel, and causing injuries from which he died the next day. Since there were no eyewitnesses to the accident, other than Barsch, it is difficult to ascertain from the testimony the relative speed of each vehicle as it approached the point of collision, although Barsch admits seeing the Hammond car when it came around the curve on the north, about a quarter of a mile north of Pinon. Barsch apparently thought he had enough time to make the turn into the driveway ahead of the Hammond car.

The night was clear and the Holcomb buildings were well lighted. That Hammond saw the truck making the turn is a fair surmise because there were tire skid marks for about thirty feet ahead of the point of impact, indicating that Hammond tried to stop his car, although Barsch testified that he did not hear any screeching of brakes; that when he saw that a crash was imminent, he stopped his truck just off the pavement at an angle to it, facing into the Holcomb driveway. From the tire marks of Hammond's car, it was apparent that he had driven off the pavement on his right in an attempt to avoid a collision. Following the accident, most of the Hammond car was on the pavement, cross-wise thereof, with the front part of it against the right front part of the tractor.

Hammond was taken to a hospital in Pueblo. His wife and children arrived there about 7:45 a. m. Mrs. Hammond testified: 'As we came up to him, the children and I, he put his arm around the children, kissed each one of us, and said, 'Mother dear, I won't ever be home with you and the babies again; I am done for * * *. He said he saw this other car coming, and it made no indication of turning, and he supposed it was going to continue on its course north, or in the direction in which it was going. * * * But all of a sudden, quite suddenly, this man turned directly in front of him, which would have been to his left, got directly in front of him, giving no intimation he was turning or going into this place * * *. When he struck the car that he was yet on the highway, partly in the highway when he struck it.'

(1) This statement was admitted in evidence as a dying declaration, and its admission as such is the principal ground for reversal in this case. Other matters urged are: (2) That Hammond was intoxicated. (3) That the court should have directed a verdict for defendant. (4) That the court erred in giving instruction No. 4. (5) That there was a variance between pleading and proof. (6) That the court erred in denying motion for a new trial.

1. Counsel for plaintiff in error objected to the introduction of the above testimony upon the ground that it was hearsay but when opposing counsel called attention to Chapter 145, Session Laws 1937, which permits such declarations to be introduced, objection was that no proper foundation had been laid, which objection was cured by a proper foundation being laid. This statute reads, in part: 'To render the declarations of the deceased competent evidence, it must be satisfactorily proved: 1, that at the time of the making of such declaration he was conscious of approaching death and believed there was no hope of recovery; 2, that such declaration was voluntarily made, and not through the persuasion of any person; 3, that such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement; 4, that he was of sound mind at the time of making the declaration.' All of these elements...