C. A. Jackson, Inc. v. Wilhelm, 14628.

• Decision Date: 15 April 1940
• Docket Number: 14628.
• Citation: 102 P.2d 731,106 Colo. 140
• Parties: C. A. JACKSON, Inc., et al. v. WILHELM.
• Court: Colorado Supreme Court

102 P.2d 731

106 Colo. 140

C. A. JACKSON, Inc., et al. v. WILHELM.

No. 14628.

Supreme Court of Colorado

April 15, 1940

Rehearing Denied May 20, 1940.

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by Marie Wilhelm against C. A. Jackson, Inc., a Nebraska corporation, and others, for injuries sustained in an automobile collision. To review a judgment for the plaintiff defendants bring error.

Affirmed in part, and reversed in part.

W. A. Alexander, Cecil M. Draper, and Louis C Gerding, Jr., all of Denver, for plaintiffs in error.

Blount January & Yegge, G. Dexter Blount, and Grant E. McGee, all of Denver, for defendant in error.

OTTO BOCK, Justice.

In this suit defendant in error recovered for damages sustained in an automobile collision. The position of the parties here is reversed as to the order in which they appeared in the trial court, and they are hereinafter designated as there or by name. Plaintiff alleged negligence and defendants answered (1) Denying generally; (2) alleging contributory negligence of plaintiff; (3) setting up that the injuries and damage sustained by plaintiff were due solely to the fault and negligence of the driver of the automobile in which plaintiff was riding, and the negligence of a third party, who had left an automobile parked on the highway; (4) that the accident was unavoidable; and (5) that defendant C. A. Jackson, Inc., was not liable because of nonexistence of the corporation at the time of the accident; and that the corporation never agreed to assume any liability for accidents or otherwise occurring prior to the time of its corporate existence. The case was tried to a jury, resulting in a verdict in favor of plaintiff, and judgment was entered accordingly. To reverse this judgment defendants bring the cause here by writ of error.

The accident occurred immediately east of Kearney, Nebraska, on U.S. Highway 30, at dusk, about 5.30 p. m. The paved highway was covered with ice at the locus of the accident, and for a distance of about eighty miles east thereof. It was so slippery that the driver of defendant company's truck could hardly keep it on the road. The truck was proceeding in a westerly direction and plaintiff was riding in an auto which was being driven easterly. Four motor vehicles are involved in this accident: The truck of defendant company; a Chevrolet sedan, in which plaintiff was riding; a Buick driven by one Mack, and a Plymouth auto, which was parked on the highway where the accident occurred. For some fifty or sixty miles the Chevrolet had been following three or four hundred feet behind the Buick. Defendant's truck, weighing, with cargo, about 33,000 pounds, and which was eight feet in width, about thirty-four feet long, and eleven feet high, was proceeding westerly. When Mack, driving the Buick, was approximately one hundred feet from the Plymouth, he for the first time noticed the latter was at a standstill, and when some twenty feet therefrom, and proceeding at a speed of about five miles per hour, he attempted to pull his car into a parking space by a grocery store. He failed in this attempt but succeeded in getting his car fully off the paved highway by a couple of inches. The Chevrolet came to a halt about fifty feet west of the Plymouth, at which point it remained until struck by defendant's truck. The distance of the truck from the Buick when it crossed the highway is in dispute, the approximations ranging from thirty to five hundred feet. The scope of visibility at the time of the accident also is in question, the distance being variously estimated at from 600 to 1,000 feet. The testimony as to the speed of the truck is in conflict, opinions of witnesses fixing it to be from twelve to thirty miles per hour. The accident occurred on a straightaway, but the truck was about to enter an extended curve leading into Kearney. Whether there was sufficient space for it to have passed between the Buick, off the highway, and the Plymouth, on the highway, also is in dispute.

While numerous errors are assigned, we deem it necessary to discuss only those argued in defendants' briefs. The first is predicated upon the alleged erroneous ruling of the court in denying the motion for a directed verdict, based upon the ground that no negligence on the part of the driver of defendant company's truck was shown.

The condition of the highway at the time of the accident not only was not normal, but unusual. The driver of the truck was fully aware of that condition, as he had encountered approximately eighty miles of icy road east of the point of accident. The temperature was about twenty degrees above zero. As Before stated, it was difficult for him to keep the truck on the highway. Under these circumstances it was the duty of the driver to exercise unusual care, having in mind the weight of the truck and cargo. One of the defendants' witnesses testified that, traveling at the rate of twelve miles per hour, on a road in the condition shown by the evidence in this case to be present, it would require a distance of 200 feet within which to bring the truck to a standstill, without its skidding off the road. The truck operated between Chicago and Denver, a distance of 1046 miles, for which the driver was allowed a maximum time of forty-two hours to make the trip.

We have not detailed all of the evidence, but from that narrated, it would seem that, taking into consideration all the circumstances surrounding this accident, the jury would be warranted in finding that the driver of the truck did not employ such care and...