Blain v. Yockey

Decision Date14 July 1947
Docket Number15647.
Citation184 P.2d 1015,117 Colo. 29
PartiesBLAIN v. YOCKEY et al.
CourtColorado Supreme Court

Rehearing Denied Sept. 29, 1947.

Error to District Court, Boulder County; Claude C. Coffin, Judge.

Action by Hazel Blain against Ralph E. Yockey and Sam Walter Martin to recover for injuries sustained by the plaintiff in an automobile collision, wherein Sam Walter Martin filed a cross-complaint, and wherein Ralph E. Yockey filed a counterclaim against the plaintiff and Sam Walter Martin. To review a judgment dismissing the complaint, the cross-complaint, and the counterclaim, the plaintiff brings error.

Judgment affirmed.

Where plaintiff would not have been entitled to a judgment on the pleadings if motion therefor had been made, her motion for judgment notwithstanding verdict was properly denied.

Rinn & Connell, of Boulder, for plaintiff in error.

Wolvington & Wormwood, of Denver, for defendant in error Ralph E Yockey.

Goss &amp Hutchinson, of Boulder, for defendant in error Sam Walter Martin.

ALTER Justice.

Hazel Blain, plaintiff in error here, plaintiff below, brought an action against Ralph E. Yockey and Sam Walter Martin, defendants below, to recover damages for personal injuries sustained by her in an automobile collision. On verdicts returned by the jury, judgment was entered by the trial court: Dismissing plaintiff's complaint; dismissing defendant Martin's cross complaint and dismissing defendant Yockey's counterclaim against plaintiff and Martin. Blain brings the cause here for review by writ of error. We will herein designate the parties as they appeared below, or by name.

Plaintiff alleged in her complaint that on the morning of December 15, 1943, a dense fog settled on the highway east of Boulder, Colorado, and at about 6:40 o'clock A.M., a collision occurred on said highway between Martin's automobile and Yockey's truck, both of which were being driven in an easterly direction from Boulder; that as a result of the collision, Martin's automobile and Yockey's truck obstructed the right-hand traveled portion of the highway; that plaintiff, while driving her automobile in a careful manner, and at a lawful rate of speed on the righthand side of said highway, encountered an unnsually dense wave of fog which practicaly obstructed her view of the highway and objects thereon, as a result of which her car collided with Yockey's truck, and she sustained serious personal injuries. Plaintiff further alleged that in view of the dense fog Martin was negligent in decreasing the speed of his car or stopping it on the highway without proper signals or sounding his born and that the Yockey truck was negligently operated in following the Martin automobile closer than was reasonable and prudent under existing circumstances. It further was alleged that both Martin and Yockey were negligent in that they did not remove their respective automobiles form the highway so as to permit the free and unobstructed use thereof by others, and that as a result of such joint negligence plaintiff was seriously injured.

Defendant Yockey, by his pleadings, admitted the weather conditions as alleged by plaintiff; that the collision between the automobiles occurred on the highway at the time alleged by her, and he further alleged that, under the circumstances, Martin was negligent in stopping his car upon the highway without giving any sign or signal of his intention so to do; further, that plaintiff's injuries were proximately caused by her own negligence or by the combined negligence of plaintiff and defendant Martin, and he specifically denied negligence upon his part. Yockey further alleged that the interval of time between the collision between his truck and Martin's car was too brief to permit him to put out any warning signs or signals. As a separate defense, he alleged that plaintiff's injuries were the proximate result of an unavidable accident and also that they were proximately caused by her contributory negligence; he also filed a counterclaim against plaintiff and defendant Martin asking judgment for $150 for damages to his truck occasioned by the negligence, sole or joint, of plaintiff and Martin.

Defendant Martin answered, admitting the accident at the time, place and under the weather conditions alleged by plaintiff, and denied any negligence on his part. He further alleged that Yockey's truck was negligently left upon the highway and obstructed the use thereof, and that he failed to place any warning signs or signals to caution those lawfully using the highway of the conditions, in violation of the provisions of applicable statutes. He denied that plaintiff was using due care in the operation of her automobile; alleged that she was guilty of contributory negligence which was the sole proximate cause of her injuries and damage; that plaintiff's injuries were the result of an unavoidable accident; and that the negligence of Yockey was the sole proximate cause of such injuries. Martin filed a cross complaint against Yockey, alleging that the latter so negligently drove and operated his truck as to occasion a collision with his automobile, resulting in property damage and bodily injuries in the amount of $1500, for which he asked judgment.

Under the summarized specification of points, plaintiff contends that the trial court erred in the following particulars: (1) In its instructions; (2) in determining the evidence sufficient to support the verdicts; (3) misconduct of the trial judge in connection with the verdicts; (4) misconduct of defendant Yockey's attorney; and, (5) in denying plaintiff's motion for summary judgment notwithstanding the verdict. These specifications we shall consider in the order presented. Neither defendant filed cross specifications of points.

1. At the conclusion of the evidence, plaintiff's attorney tendered an instruction on contributory negligence which the trial court declined to give to the jury and proper exceptions were noted. The tendered instruction reads:

'It is not enough to prevent plaintiff's recovery to show merely her negligence, if she was in fact negligent. It must have been the sole or contributing cause of the injury, without which it would not have happened.'

With reference to this tendered instruction, plaintiff's counsel state:

'This brief and proper instruction as to the law is taken directly from the case of Arps v. Denver, 82 Colo. 189, at page 197, also reported in 257 P. 1094, citing the leading Colorado decisions and text authorities supporting this rule and proper instruction of law on the subject of contributory negligence.'

Counsel is mistaken in his statement that his tendered instruction was taken directly from Arps v. Denver, supra [82 Colo. 189, 257 P. 1095], because in that opinion the following appears:

'At the close of plaintiff's testimony the court granted a nonsuit on the grounds of contributory negligence.'

Consequently, there were no instructions for our consideration in that case.

On the question of contributory negligence, the court in the case at bar instructed the jury as follows:

"Contributory negligence' is such negligence on the part of a party complaining as helped to rpoduce the damage complained of, and without which it would not have occurred. Such negligence need not have been the sole cause of the damage, but merely such that but for the negligence of the party complaining the damage would not have occurred. If you find that such a party was guilty of contributory negligence as herein defined, you are instructed that he or she cannot recover damages against either of the others.'

When the court tendered its instructions to counsel for their objections or approval, the one on contributory negligence, No. 4, prepared by the Court, was among them, and with reference to this and the other instructions, counsel for plaintiff stated:

'Let the record show that the plaintiff has no objections to the court's instructions.'

The instructions given the jury are not contained in the record, which omission we strongly disapprove. No one of the instructions given to a jury contains all of the applicable law. All thereof must be taken and considered together as they are connected and related as a whole.

Any objection which counsel may have had by reason of the court's refusal to give his tendered instruction was waived when he expressly approved the instructions prepared by the court, and consented that they be given to the jury. It is unnecessary, under the circumstances here presented, for us to determine whether counsel's tendered instruction was a proper one or whether the instruction given by the court was a correct definition of contributory negligence and the effect of such negligence.

2. The record discloses that the evidence is in hopeless conflict. The only facts upon which all of the witnesses seem to agree is that on the morning in question the fog in the vicinity of the highway running easterly from Boulder was so dense at times as almost to obscure one's vision of the highway and any objects thereon, and all of the witnesses agree that an accident occurred involving three motor vehicles. That plaintiff sustained serious injuries in the accident, and that her automobile was almost completely demolished is not disputed, nor is it questioned that defendant Martin's automobile was damaged, and that he sustained bodily injuries. There is no evidence questioning the fact that Yockey's truck was damaged. With the exception of these facts, no others material to plaintiff's cause of action or to the counterclaim and cross complaint are undisputed. Whether Martin's automobile was stopped, or traveling at a slow rate of speed at the time it was struck by Yockey's truck, and whether it was on the...

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13 cases
  • Crawford Rehabilitation Services, Inc. v. Weissman
    • United States
    • Colorado Supreme Court
    • June 9, 1997
    ...of justice, expedite litigation by avoiding needless trials, and enable one to speedily obtain a judgment. See Blain v. Yockey, 117 Colo. 29, 42, 184 P.2d 1015, 1022 (1947). The first prong of the test is met when all of Weissman's misrepresentations and omissions are taken into account. We......
  • Caldwell v. Kats, 75--273
    • United States
    • Colorado Court of Appeals
    • July 29, 1976
    ...issues were submitted to the jury without objection, See Brown v. McPherson, 132 Colo. 149, 286 P.2d 342 (1955); Blain v. Yockey, 117 Colo. 29, 184 P.2d 1015 (1947); and '(h)e that requests the trial court to submit a case upon a certain theory, whether right or wrong, is estopped from comp......
  • Cooper v. Woodruff
    • United States
    • Oklahoma Supreme Court
    • December 20, 1960
    ...Verdicts similar in form and substance have been so construed. See Sarkeys v. Marlow, 205 Okl. 15, 235 P.2d 676; Blain v. Yockey, 117 Colo. 29, 184 P.2d 1015; Atlantic Coast Line R. Co. v. Price, Fla., 46 So.2d 481; Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430; Chapin v. Foege, 296 Ill.App.......
  • Blue Cross of Western New York v. Bukulmez
    • United States
    • Colorado Supreme Court
    • May 11, 1987
    ...of this rule is to further the prompt administration of justice and expedite litigation by avoiding needless trials. Blain v. Yockey, 117 Colo. 29, 184 P.2d 1015 (1947). Summary judgment should not be granted where there appears to be any controversy concerning material facts because a summ......
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2 books & journal articles
    • United States
    • FNREL - Special Institute Natural Resources and Environmental Litigation (FNREL)
    • Invalid date
    ...not provide proper grounds for appellate review, Ross v. Colorado National Bank, 170 Colo. 463, 463 P.2d 882 (1969). In Blain v. Yockey, 117 Colo. 29, 184 P.2d 1015 (1947), the court stated that any objection which counsel for appellant may have had by reason of the trial court's refusal to......
  • A Litigator's Guide to Summary Judgments
    • United States
    • Colorado Bar Association Colorado Lawyer No. 14-2, February 1985
    • Invalid date
    ...P.2d 989 (1968); Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961). 2. Terrell, note 1, supra. 3. See, Blaine v. Yockey, 117 Colo. 29, 184 P.2d 1015 (1947). 4. See, C.R.C.P. Rule 56(b). 5. In Denver, Local Rule 20(a) provides that a Rule 56 motion must be filed no later tha......

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