Brice v. Miller, 16189

Decision Date24 April 1950
Docket NumberNo. 16189,16189
Citation121 Colo. 552,218 P.2d 746
PartiesBRICE et al. v. MILLER et al.
CourtColorado Supreme Court

Burris & Bumgardner, Pueblo, for plaintiffs in error.

John N. Mabry, Trinidad, Robert A. Morrow, Raton, New Mexico, for defendants in error.

MOORE, Justice.

Defendants in error were plaintiffs in the trial court and plaintiffs in error were defendants. We will refer to the parties as they there appeared.

At approximately 1 o'clock in the morning of April 1, 1946, one Hugh W. Bunch, who was the owner of a Packard automobile, was driving in a southerly direction on U.S. Highway 85 at a point approximately seventeen miles north of Walsenburg, Colorado, and Walter E. Miller, Carl J. Ayers, Glenn Raymond Pittman, and Fines Ayers were passengers in his car.

This automobile struck the rear end of a gasoline transport truck owned by defendant Brice and being driven by defendant MacDonald. The gasoline transport was travelling in the same direction as the car driven by Bunch. Bunch and Fines Ayers, a passenger in the rear seat of the car, died in the accident. LeRoy L. Ayers and Arminta J. Ayers joined as plaintiffs in the action, claiming damages for the wrongful death of their son Fines Ayers. The other plaintiffs were passengers in the car driven by Bunch and sought damages for personal injuries allegedly resulting from the negligence of defendants. Trial was had to a jury resulting in verdicts in favor of each plaintiff for separate sums. Judgments were entered upon the verdicts for sums aggregating $38,254.66.

Upon the trial defendants moved for a directed verdict, which motion was denied. After the jury returned the verdicts defendants moved for judgment notwithstanding the verdicts, which motion was denied. The motion for new trial, which contained a statement of fifty-eight alleged errors, was denied, and defendants have sued out a writ of error specifying thirty-eight points upon which they rely for reversal of the judgments. We need only consider those specifications relating to defendants' motion for a directed verdict, to dispose of this controversy, and accordingly we hereinafter summarize or quote the testimony relating to those specifications.

At all times following the departure of Bunch and his passengers from the city of Pueblo to the point of the accident in question a cross wind was blowing from the west. In the vicinity of the accident the wind had become a gale of near hurricane proportions. The evidence discloses, however, that the said cross wind had not materially affected visibility until near the point on said highway where the accident, forming the basis of this case, occurred. On the westerly side of the highway, beginning at a point approximately 650 feet north of the scene of the accident, and continuing for a distance of approximately one-half mile, there was a wheat field, to which the witnesses refer either as such or as a plowed filed. The high wind blowing across this field created a violent dust storm throughout the entire area, and the highway was so engulfed in swirling dust and dirt that visibility was reduced to a minimum, witnesses testifying that even at those times when the dust was less dense it was impossible to see more than ten or fifteen feet in front of an automobile.

Defendant MacDonald testified that as he approached the dust area he was driving about 25 to 30 miles an hour, and that upon entering the dust storm he reduced his speed to where he could stop within an area of visibility 'which was zero; stop at once, in other words.' He estimated that he had penetrated the dust area 'several hundred feet' when he felt a severe impact, and, believing he had run off the shoulder and straddled a culvert head, he stopped his truck to see what was the matter. He testified emphatically that at the time of the impact his truck was in motion and going at a speed which he estimated to be around five miles an hour.

Plaintiff Walter E. Miller testified that at the time of the collision he was asleep in the back seat and the next thing he remembered was being in a wheel chair in a hospital at Pueblo, Colorado. Plaintiff Carl J. Ayers, testified that he also was asleep at the time of the collision and did not regain consciousness until about twelve hours thereafter. Plaintiff Glenn R. Pittman was riding in the back seat and testified concerning the collison as follows:

'We suddenly ran into a big dust-storm there. We hadn't any more than run into it when the lights of this transport loomed up right in front of us, stopped on the highway. Hugh Bunch slammed on his brakes and swerved to the left, trying to avoid hitting this truck, but we hit it.

'I got out of the back of this Packard as fast as I could, and went up to the front of the car, between the car and the truck and I met this truck driver with a flashlight in his hand coming toward me, and he told me that his truck was stalled, and locked in gear, and he said, I didn't have any flares out. And I said, let's get these men out of this car, I said they are bad hurt. And he said two times, he got excited like: 'What can I do? What can I do?' And at that time I saw a car coming from toward Walsenburg, and I said, 'stop that car,' we will get these men in it; and he did, he flagged the car down; and then we took Miller and Bunch out and put them in this car with the soldier boy, he took them to Pueblo to Corwin hospital. And about that time two Denver-Amarillo truck drivers took me in to Corwin in their truck.'

He stated that the oil transport was only a short distance inside the dust area when the collision occurred, 'less than a city block.' He estimated the speed of the Packard car in which he was riding to be between 40 and 50 miles per hour after leaving Pueblo. It is apparent that the force of the collision locked the gears of the transport, and the statement attributed to defendant MacDonald, concerning locked gears and absence of flares, related to the condition immediately following the accident. The gasoline transport was equipped with proper rear end lights, all of which were burning at the time of the accident.

The witness Dan Unfug, called by plaintiffs, testified that, as coroner of Huerfano county, he received a call at about 2:15 a. m. April 1, concerning the accident; that he started for the scene at 3:00 o'clock, and the dust storm was still raging. He stated, 'I didn't get out of the car at the scene of the accident, due to the density of the storm. * * * There was times you couldn't see beyond the end of the radiator of your car. * * *

'Q. Would it even be possible to see a car ahead of you ten or fifteen feet in that storm, with that dirt swishing across your headlights? A. I imagine if you were driving carefully you could.

'Q. If you were driving forty or fifty miles an hour, could you? A. No, sir.

'Q. It would be impossible? A. Yes.

* * *

* * *

'Q. How fast did you proceed when you got into this dust storm? A. About ten to fifteen miles an hour.

'Q. Anything faster then that would have been dangerous would it, in your opinion? A. Very dangerous.

* * *

* * *

'Q. How long did you remain out there, would you say? A. About fifteen minutes.

'Q. Did it pit-mark your car any? A. It certainly did.

'Q. You were only there fifteen minutes? A. Yes.

'Q. Did it injure your paint so you had to have it repainted? A. Yes.

'Q. What did it do to the glass of your car? A. I had to have my glass replaced.'

Aldo Felice, a witness for plaintiffs, testified that he was an automobile mechanic, and that at about 2:30 or 3:00 o'clock in the morning of April 1st he arrived at the scene of the collision. He made three trips from Walsenburg to the scene during the progress of the dust storm. He states that at the time of making those trips, 'Visibility was zero; I can't travel over approximately fifteen, twenty miles with the truck.' He said that it would be about a block from the scene of the collision toward Pueblo when you would emerge from the dust storm. When he first approached the scene of the accident he could see the dust storm within the range of his headlights.

J.C. Simpson, called by plaintiff, testified that he was a truck driver and reached the scene of the collision at about 2:00 o'clock a. m., coming from Pueblo. He said that the intensity of the storm was not constant; that at times one could see twenty-five feet down the road, and at other times you could see about one hundred feet.

Glenn R. Pittman, one of the plaintiffs, testified: 'A. I didn't see the dust until we ran right into it.

'Q. You didn't see the dust until you ran right into it? A. That's right.

'Q. What did it look like when you saw it?. A. We ran right into it; just a lot of dust.

'Q. You were in it before you knew it? A. Yes, sir.

'Q. Were the headlights of the Packard car turned on? A. Certainly.

* * *

* * *

'A. We hadn't any more than entered this dust area before we hit the trailer.

'What do you mean, by any more than that? A. Less than a city block, to my estimation.

* * *

* * *

'Q. Prior to your going right into this dust storm, Mr. Bunch hadn't slackened his speed, had he? A. Not to my knowledge.

'Q. So that after he got into the dust storm, he was traveling at the same rate of speed he was before he went into the dust storm, isn't that correct? A. It is possible, yes.

'Q. As a matter of fact, the only time he did slacken his speed, wasn't it, is when he attempted to stop and avoid hitting that car, or the truck? A. Yes.'

Defendant MacDonald stated that the wind was so strong he had difficulty in walking. It could be done, 'but you had to mind what you were doing, or it would blow you across the road, blow you across the road into the borrow-pit on the other side,' He could see the white stripe in the center of the highway, without stooping, by using his flashlight.

Rex P. Prisbrey, called as a witness by defendants, was driving...

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4 cases
  • Chapman v. Redwine
    • United States
    • Colorado Supreme Court
    • March 19, 1962
    ...or quality of matter, or whatever it may be that rules the case and apply it as a trial court should have done." In Brice v. Miller, 121 Colo. 552, 218 P.2d 746, we find the following pertinent '* * * The bare statement that the truck was 'stopped' upon the highway, when considered in the l......
  • Ackley v. Watson Bros. Transportation Co., 4017.
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    • September 3, 1954
    ...driver of parked truck was guilty of negligence, but that the negligence of the approaching motorist was for the jury. Brice v. Miller, 121 Colo. 552, 218 P.2d 746, holding that in a collision between a slowly moving truck and an automobile during a dust storm when visibility was greatly re......
  • Winterberg v. Thomas
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    • Colorado Supreme Court
    • July 7, 1952
    ...Westerkamp v. Chicago B. & Q. Ry. Co., 41 Colo. 290, 92 P. 687; McLennon v. Whitney-Steen Co., 63 Colo. 568, 167 P. 771; Brice v. Miller, 121 Colo. 552, 218 P.2d 746. We quote from the Westerkamp case as follows [41 Colo. 290, 92 P. 'Where a physical situation renders the right of a matter ......
  • Eagan v. Maiselson
    • United States
    • Colorado Supreme Court
    • March 28, 1960
    ...impact. This, too, was evidence from which the jury might infer that plaintiff was traveling at an excessive speed. See, Brice v. Miller, 121 Colo. 552, 218 P.2d 746. Lastly, defendant's testimony that he did not see the headlights of an approaching vehicle as he prepared to make a left tur......

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