Campion v. Eakle

• Decision Date: 29 March 1926
• Docket Number: 11467.
• Parties: CAMPION v. EAKLE.
• Court: Colorado Supreme Court

246 P. 280

79 Colo. 320

CAMPION v. EAKLE.

No. 11467.

Supreme Court of Colorado, En Banc.

March 29, 1926

Rehearing Denied May 24, 1926.

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

Suit by Ira L. Eakle against A. J. Campion. Judgment for plaintiff and defendant brings error, and applies for supersedeas.

Supersedeas denied, and judgment affirmed.

D. L. Webb, H. Berman, and James H. Teller, all of Denver, for plaintiff in error.

Crump &amp Riley, of Denver, for defendant in error.

SHEAFOR, J.

Defendant in error, plaintiff below, and so referred to here, brought this suit against plaintiff in error, defendant below, and so designated here, to recover damages for personal injuries sustained by him in an automobile collision. Verdict and judgment for plaintiff, and defendant brings the case here and applies for supersedeas.

On November 23, 1923, about 7 o'clock a. m., a Buick sedan car owned by defendant, and being driven by Davis, his chauffeur, at the intersection of Thirty-Eighth and Wewatta streets, in the city of Denver, collided with a Chevolet car, owned and driven by one Webb, with whom the plaintiff, Eakle, was riding as a guest seated upon the front seat beside the driver. The Buick car was traveling in a westerly direction along the northside of Wewatta street, and the Chevrolet car in a northerly direction along the east side of Thirty-Eighth street. At the intersection in question, and at that hour in the morning, traffic was heavy, and more or less congested. Plaintiff was familiar with that crossing, having frequently passed over it in going to and from his work.

As a result of the collision, the Chevrolet car was turned around and forced into a ditch; the rear portion of the car being badly damaged. Plaintiff was thrown through the windshield, or to the right of it through the front door, striking on his head, rendering him unconscious, in which condition he was removed to a hospital.

The defendant claims that Webb, the driver on the left, was guilty of negligence in not yielding the right of way to the driver on the right, and that his negligence was the cause of the collision. Defendant further claims that plaintiff was himself guilty of contributory negligence which was the proximate cause of the injuries sustained by him. Defendant's position is that 'plaintiff shared in Webb's negligence and the same facts which show the negligence of the driver show also the negligence of the plaintiff'; also that the guest was required to use the same care and caution that would have been required of him if he had been the driver.

Plaintiff's evidence was to the effect that he could remember nothing about the collision except the noise; that the last thing he remembered was seeing the gates go up or down on the Thirty-Eighth street crossing; that he thought a freight train hit them, and the way he figured it out was that his mind was occupied; that he was not paying any attention while he was riding along there; that Webb was driving the car, and he was not.

The evidence of Webb on this point was:

'As I started across the intersection, I got to the middle when I heard Mr. Eakle holler, 'Look at him come,' and at that instant, almost, I was just passing the center when I was struck by the car.'

As to the negligence of the defendant: There was evidence tending to show that defendant's car was being driven at a rate of speed of about 40 miles an hour as it approached and entered the street intersection, which was greatly in excess of the rate of speed permitted by the city ordinace, and, while the evidence upon this point was conflicting, there was ample to support the verdict.

We have held that, although one had the right of way, he was not absolved from the duty to exercise reasonable care. Golden Eagle Co. v. Mockbee, 68 Colo. 312, 189 P. 850; St. Mary's et al. v. Newhagen, 77 Colo. 471, 238 P. 21, 22. There is no evidence, disclosed by the record, which shows, or tends to show, contributory negligence on the part of the plaintiff, unless it is shown by the evidence of the plaintiff and Webb above recited.

Defendant claims that, because of the foregoing evidence, the court erred in denying his motions for nonsuit and for a directed verdict, and also claims that the court erred in refusing to give to the jury his requested instruction No. 1, and in giving to the jury instructions Nos. 5 and 8. The requested instruction was properly refused.

This request was to the effect that it is the duty of the driver approaching the intersection from the left to use reasonable care to see whether there is likelihood of a collision with any car approaching from the right, and to yield to the car coming from the right the right of way, and to keep his car under control so that he can so yield it; and the driver approaching from the right is not negligent by reason of a collision occurring because of the negligence of the driver on the left in not yielding the right of way. The question of the negligence of the driver, Webb, was not involved. This instruction, if given, would have told the jury that, however negligent defendant might have been, and however free from negligence the plaintiff might have been, the plaintiff could not recover if the driver of the car, in which plaintiff was riding, was guilty of negligence in not yielding the right of way to the driver of the car on the right, which caused the collision. If the driver's negligence cannot be imputed to the guest, and that is conceded, then the instruction requested should not have been given.

Instruction No. 5 given charged the jury 'that the plaintiff, being a guest in the automobile, was under no duty to keep a lookout for impending dangers,' and further instructed the jury that the driver's negligence, if any, could not be imputed to the plaintiff. Defendant's objection is to the quoted part of the instruction. He makes no objection to the latter part.

Instruction No. 8 given instructed the jury in effect that, notwithstanding the driver of the defendant's car had the right of way, nevertheless, if the jury round from the evidence that he was driving at an unlawful and dangerous rate of speed, and if he saw, or in the exercise of due care could have seen, the perilous position of the plaintiff in time to have slowed down and prevented the accident, and failed to use due and ordinary care to avoid the collision, the defendant would be liable, provided the injuries received by the plaintiff were the direct result of such negligence.

By instruction No. 9 the jury were told that Eakle, while in the automobile as the guest of another when the other was driving, was charged...