Clark v. Fellin

• Decision Date: 01 December 1952
• Docket Number: No. 16863,16863
• Citation: 126 Colo. 519,251 P.2d 940
• Parties: CLARK v. FELLIN.
• Court: Colorado Supreme Court

Page 940

251 P.2d 940

126 Colo. 519

CLARK v. FELLIN.

No. 16863.

Supreme Court of Colorado, en Banc.

Dec. 1, 1952.

Coit & Graham and Gerald J. Ashby, Grand Junction, for plaintiff in error.

Kempf & Icke, Ouray, for defendant in error.

JACKSON, Chief Justice.

We will refer to the parties herein as they appeared in the trial court, their positions there being the reverse of their appearances here.

Plaintiff Fellin obtained a seven thousand dollar judgment against defendant Clark for damages for personal injuries. The latter brings the cause here, seeking a reversal of the judgment. Fellin, while walking across a street, midway in a block in the business district of Ouray, at half past midnight, was hit by a car driven by defendant. Both plaintiff and defendant were proceeding to a fire when the accident occurred, plaintiff as a spectator and defendant as a member of the Ouray volunteer fire department. Defendant claimed that the car which he was driving at the time of the accident was an authorized emergency vehicle under the terms of section 1, chapter 288, page 794, S.L. '51, and as defined in section 77(a), chapter 16, '35 C.S.A.

Plaintiff's complaint is based generally on a claim of negligence, and he specifically alleged in paragraph 3, subsection (h), that defendant, 'being a member of the volunteer fire department attached to the fire department of the city of Ouray, drove his private automobile in responding to a fire alarm without having the same identified by two purple lights in the front portion of said car so that they could be readily seen by the public, contrary to the statute of the State of Colorado in such case made and provided.' Counsel for defendant moved to strike this paragraph on the ground that it failed to state any negligence on the part of defendant and accordingly any matter upon which relief could be granted; and therefore was prejudicial to defendant. The court denied this motion. Subsequently the same question was raised when the court denied instructions 'A' and 'B', tendered by counsel for defendant at the close of the jury trial. These read:

'A. You are instructed that the vehicle being driven by the defendant at the time of the accident herein involved was an authorized emergency vehicle.

'B. You are instructed that if you find that the defendant had his siren operating up to the time of the accident, then the failure of the defendant to have his automobile identified by two purple lights on the front thereof is immaterial to this case and such fact is to be totally disregarded by you in reaching this verdict.'

The court, in its instruction No. 4, set forth the statutes of the state of Colorado and the ordinances of the city of Ouray so far as deemed applicable to this case, which included the following:

'When no special hazard exists the following speeds shall be lawful, but any speed in excess of said limits shall by prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:

'Twenty-five miles per hour in any business district. [The accident occurred in the business district and the evidence disclosed that defendant's speed was more than twenty-five miles per hour.] The prima facie speed limitations * * * shall not apply to authorized emergency vehicles when responding to authorized emergency calls and the drivers thereof sound audible signal by bell, sirens or exhaust whistle. This provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard to the safety of all persons using the street nor shall it protect the driver of such vehicle from the consequence of a reckless disregard of the safety of others.'

The next paragraph quoted the first two sentences of section 1, chapter 288, S.L. '51, omitting the third sentence. Then follows the provision:

'Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway except--when overtaking and passing another vehicle proceeding in the same direction. No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible * * *. No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement.'

The evidence disclosed that defendant, in order to avoid hitting a vehicle in front of him, turned to the left which put his car to the left of the center of the street when the accident occurred.

The concluding paragraph of instruction No. 4 reads:

'Any pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.'

It will be noted that the court, in instruction No. 4, set forth what it deemed to be the pertinent statutes and ordinances, without comment. The provision causing the chief dispute in this case is section 1, chapter 288, S.L. '51, which reads as follows:

'That on and after the effective date of this Act all members of volunteer fire departments regularly attached to the fire departments organized within incorporated towns and cities and fire protection districts shall have their private...