Clark v. Hicks
| Decision Date | 19 January 1953 |
| Docket Number | No. 16782,16782 |
| Citation | 252 P.2d 1067,127 Colo. 25 |
| Parties | CLARK v. HICKS et al. |
| Court | Colorado Supreme Court |
Joseph P. Constantine, Denver, for plaintiff in error.
Denious & Denious, Denver, for defendants in error.
We will refer to the parties herein either by name or as they appeared in the trial court, where plaintiff in error was defendant and the defendants in error were plaintiffs.
The record discloses that Elizabeth Ann Hicks, a minor, one of the defendants in error, was a guest passenger in a car driven by plaintiff in error, Clark. Shortly after eight o'clock P.M. on September 17, 1948, Clark was driving his automobile south on the Denver-Colorado Springs Highway. Approaching a hill on said highway, Clark came upon a truck also proceeding in a southerly direction on the highway. The truck had seven red lights on the back thereof, which lights were plainly visible and were seen by Clark for some distance. As Clark overtook and attempted to pass the truck, a car operated by one Webster approached from the opposite direction with headlights plainly visible. The highway along which Clark proceeded was marked by a white line in the center, spanned by a double yellow line. A sign erected by the State Highway Department alongside the road, forbidding traffic to cross said yellow line, was seen by Clark when his car was still a considerable distance behind the truck. The truck was proceeding at a comparatively slow rate of speed and Clark testified that at the time he attempted to pass the truck he was driving his car at a speed of between 45 and 50 miles per hour. Plaintiff in error drove his car on his left side of the highway in attempting to pass the truck and actually saw the car driven by Webster approaching on the same portion of the highway. The record discloses that when Clark saw the Webster car approaching he applied his brakes, swerved to the left and again to the right and laid down 151 feet of skid marks on the pavement; that the car swerved to the shoulder of the road and traveled an additional 54 feet, again entered the highway, turned over on its left side and slid into the front end of the Webster car, which vehicle was then proceeding at a speed estimated to be from three to five miles per hour. The Clark car was virtually demolished. Elizabeth Ann Hicks was injured and brought suit not only against plaintiff in error but also against Webster to recover damages, alleged to be $10,600, and costs. Her mother, Wilma Kronesberger, was also a party plaintiff and demanded judgment in the sum of $6,400 and costs for moneys expended by her on behalf of her minor daughter for doctor bills, hospital charges and loss of the services of her daughter. The allegations of the complaint against Clark were sufficient to bring the case within the provisions of the 'guest statute'. Each defendant denied the allegations of the complaint, set up as defenses unavoidable accident, contributory negligence, assumption of risk, and Clark set up the guest statute section 371, chapter 16, '35 C.S.A., as a bar to recovery by plaintiffs. Clark alleged that the proximate cause of the accident was the negligence of Webster, who likewise alleged the accident was proximately caused by the carelessness and negligence of plaintiff in error.
Trial was to a jury, and its verdict was in favor of Webster on plaintiffs' complaint. The jury resolved the issues against Clark and returned a verdict for Elizabeth Ann Hicks for $2,500, and another in favor of her mother for $362.55. These verdicts were returned on May 22, 1951, on which date judgment was entered thereon, and the trial court allowed plaintiff in error twenty days in which to file a motion for new trial, and such motion was filed. On the same day that the motion for a new trial was overruled, the trial court permitted plaintiffs to amend their complaint by inserting in the prayers thereof the words 'and interest at 6 per cent per annum from the date of filing this complaint,' and the judgments in the case were amended by adding to the judgment in favor of Elizabeth Ann Hicks the sum of $275 interest, and by adding to the judgment in favor of Wilma Kronesberger interest in the sum of $39.88.
It is urged on behalf of plaintiff in error that the evidence was insufficient to warrant a submission of the case to the jury as against defendant Clark; that the court erred in not directing a verdict in his favor; that the damages awarded Elizabeth Ann Hicks were excessive; that the giving of Instruction No. 13 was prejudicial error; and that the court erred in permitting the complaint to be amended to include a prayer for interest, and in amending the judgments to include interest.
At one place in his testimony, Clark admitted that he was driving 50 miles per hour immediately preceding the accident. He said he could stop his car in 64 feet while traveling 45 miles per hour. It is undenied that after applying his brakes plaintiff in error's car traveled 151 feet on the pavement, another 54 feet on the shoulder of the road, was still going so fast that his auto was on two wheels part of the time; and when he got back on the road his car overturned and slid another 18 feet on its side into the Webster car. Most of this distance was uphill. Whatever the speed of the Clark car, the consequent results clearly demonstrate that it was excessive and beyond the driver's control. His deliberate and conscious conduct, as disclosed by the record, was in violation of the road sign and the yellow markings on the highway. 'Willful acts and omissions are conscious acts and omissions'. Millington v. Hiedloff, 96 Colo. 581, 45 P.2d 937, 939. Under the rule announced in Jaeckel v. Funk, 111 Colo. 179, 138 P.2d 939, and our recent pronouncement in Dameron v. West, Colo., 250 P.2d 592, the trial court did not err in submitting the case to the jury. The damages awarded were not excessive. Elizabeth Ann Hicks suffered cuts, abrasions, a broken collarbone and other injuries.
Nothing appears in the record to indicate that the verdict was the result of partiality, prejudice, or obvious mistake by the jury. The assessment of damages is within the exclusive province of the jury under proper instructions. Riss & Co. v. Anderson, 108 Colo. 78, 114 P.2d 278.
Defendant's sole objection to any of the instructions...
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