Clune v. Mercereau

Decision Date15 June 1931
Docket Number12491.
Citation1 P.2d 101,89 Colo. 227
CourtColorado Supreme Court

Error to District Court, Lake County; Francis E. Bouck, Judge.

Action by Mary Clune against Frank E. Mercereau. Judgment of nonsuit, and plaintiff brings error.


Q. D. Bonner, of Grand Junction, for plaintiff in error.

Ivor O Wingren, of Denver, for defendant in error.


Mary Clune sued Frank E. Mercereau to recover $5,000 damages for the death of her husband, alleged to have been caused by defendant's negligence in operating his automobile. Plaintiff here seeks to review a judgment of nonsuit.

The complaint charged that on the 9th day of October, 1926 defendant owned and was operating an automobile on a public highway between Carbondale and Marble in Garfield county that William Clune, deceased, accompanied him as his guest; that 'when said automobile of the defendant reached a point on said highway known and referred to as Bunker Hill, the defendant failed, refused and neglected to use ordinary care and caution and so negligently, carelessly and unskillfully drove, operated, managed and controlled said automobile as to cause it to leave the road, overturn and be precipitated down a steep hill whereby the said William Clune was thrown from said automobile and was cut, crushed, bruised and injured and was cast upon the ground and killed.'

The defendant's answer denied negligence, and alleged that the death of William Clune was the result of an unavoidable accident, reciting particulars. The only evidence given as to how the accident occurred was that of defendant when called for cross-examination under the statute. He testified that the deceased, whom he knew intimately, was accompanying him on a deer hunting trip; that the accident occurred about 1:30 p. m. on October 9, 1926, near Redstone, on the road from Carbondale to Placita; that he had owned the car he was driving about five or six months, and previously had owned a Dodge and a Ford automobile. He was interrogated as follows:

'Q. Tell the jury in your own words, what occurred just prior to the accident in which Mr. Clune met his death. A. Well, at that point of the road was a pretty steep grade. I was using the intermediate gear and near the top, or what looked like the top of the road, the grade of the road increased. As I came to that, the car slacked and I attempted to change into low gear. She wouldn't make the grade and immediately started back. I applied the brakes and they would not hold the car. I attempted to drive it around like this (indicating) to drive the car into the bank to stop it. The road was slippery and she struck the bank and the front wheels rolled over the edge of the bank. And I teetered around for space a second or so and then, the only way I can account for what happened afterwards, the bank gave under the weight of the car. The formation of the road in what they call soapstone shale. I had never heard of it myself until it was mentioned to me. When we started to slide down, I attempted to hold the car straight. I thought if I could we would go into the river and everything would be all right except we would get wet.

'Q. You say you attempted to change gears. Did you fail to make the change? A. I failed to make the change.

'Q. Do you know the condition of the road at this point of the road? A. It was the first time I seen it and I have never seen it since.

'Q. Was there or was there not any mud there at that time? A. It is a shale. There was not much mud, but it was mighty slippery.

'Q. As the road goes up the hill, it becomes narrower, does it not, Mr. Mercereau? A. Yes.

'Q. You say it was a rocky road you were on? A. It was all rocks.

'Q. And there was no mud on it? A. Enough to make a slippery road.'

Jesse Johnston, a railroad employee, testified that he made an examination of the road; that it was composed of a mixture of small gravel and clay, and dry at the point where the automobile left the road, and that there, a very small edge of the road had sunk. No further evidence was offered to prove the cause of the accident.

Did the court err in granting defendant's motion for nonsuit?

The alleged negligence upon which the plaintiff bases her right to recover consisted only in defendant's failure to exercise reasonable care in the operation of his automobile, as a result of which her husband was killed. Subjecting defendant's undisputed testimony to the most careful examination and consideration, it fails to disclose the negligence charged. It is common knowledge among automobilists accustomed to driving over steep mountain roads that, notwithstanding the exercise of reasonable care, it sometimes happens in ascending a steep, unknown road, upon shifting from intermediate to low gear, the car stalls. Various causes may produce this result; for example, lack of traction caused by the condition of the road or tires, insufficient engine power or speed. Therefore, the proof of such an event does not give rise to the inference that it was avoidable by the exercise of reasonable care.

When confronted with an emergency, Mercereau not only exercised reasonable care, but all possible care under the circumstances. He applied his brakes, and they wouldn't hold; he backed into the bank, the edge of the road caved under the front wheels, and precipitated the car over the edge. Still retaining his presence of mind, he vainly attempted to hold the car straight as it rolled down the mountain side.

No charge is made that the car was defective or the brakes inadequate. It does not appear that the brakes were in fact defective or that they were negligently applied, rather it appears that the brakes were in good condition, but would not hold the car because of the steepness of the grade and the slippery condition of the road. The evidence fails to disclose the exact grade and condition of the road and the speed of the car at the point the gear shift was attempted. So far as the record discloses, any other man similarly situated and in the exercise of reasonable care would have acted as Mercereau did.

Plaintiff urges that res ipsa loquitur applies, citing in support thereof Colorado Springs Co. v. Reese, 69 Colo. 1, 169 P. 572; Seeing Denver Co. v. Morgan, 66 Colo. 565, 185 P. 339, 341.

The contention is made that, because the automobile was being driven under the exclusive management and control of defendant, over a road which was customarily and ordinarily traveled with safety, the occurrence of an unusual and unexpected accident created a presumption that it would not have happened but for defendant's negligence....

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8 cases
  • Buchholz v. Union Pac. R. Co.
    • United States
    • Colorado Supreme Court
    • May 20, 1957
    ...Baking & Con. Co., 68 Colo. 202, 187 P. 731; Minnequa Lumber Co. v. City and County of Denver, 67 Colo. 472, 186 P. 539; Clune v. Mercereau, 89 Colo. 227, 1 P.2d 101. A number of cases hold that the introduction of substantial evidence tending to sustain the position of a litigant makes his......
  • Weiss v. Axler
    • United States
    • Colorado Supreme Court
    • July 14, 1958
    ...prima facie exoneration.' (Emphasis supplied.) Nutt v. Davison, 54 Colo. 586, 131 P. 390, 391, 44 L.R.A.,N.S., 1170. See Clune v. Mercereau, 89 Colo. 227, 1 P.2d 101. (4) Other cases hold or intimate that whether the presumption of negligence has been overcome by defendant's countervailing ......
  • McCoy v. Krengel
    • United States
    • Idaho Supreme Court
    • December 22, 1932
    ...The fact that an accident occurred is not evidence of negligence, nor furnishes basis for a verdict against defendant. (Clune v. Mercereau, 89 Colo. 227, 1 P.2d 101; Wilbur v. Home Lumber & Coal Co., 131 Ore. 180, P. 236; Heffter v. Northern States Power Co., 173 Minn. 215, 217 N.W. 102, 10......
  • Denver-Los Angeles Trucking Co. v. Ward
    • United States
    • Colorado Supreme Court
    • December 17, 1945 began to slide backwards; his actions thereafter did not constitute negligence. Clune v. Mercereau, 89 Colo. 227, 1 P.2d 101, 102. In the Clune case we said, concerning a car had stalled on a mountain road: 'Various causes may produce this result; for example, lack of traction caused by ......
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