Colorado Springs & I. Ry. Co. v. Cohun

• Decision Date: 07 April 1919
• Docket Number: 9130.
• Parties: COLORADO SPRINGS & I. RY. CO. v. COHUN.
• Court: Colorado Supreme Court

180 P. 307

66 Colo. 149

COLORADO SPRINGS & I. RY. CO. v. COHUN.

No. 9130.

Supreme Court of Colorado

April 7, 1919

Department 2.

Error to District Court, El Paso County; J. W. Sheafor, Judge.

Action by Norah Cohun against the Colorado Springs & Interurban Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Chinn &amp Strickler and J. Alfred Ritter, all of Colorado Springs, and Robert G. Argo, of Washington, D. C., for plaintiff in error.

Louis W. Cunningham and Orr, Robinet & Mason, all of Colorado Springs, for defendant in error.

DENISON J.

This is a suit based on the negligence of the defendant company plaintiff in error. The plaintiff had a verdict for $5,000.

1. Norah Cohun, defendant in error and plaintiff below, was riding on the right side of the driver's seat of her husband's motortruck. Cohun, her husband sat on the left and drove the truck. They went easterly on Platte avenue in Colorado Springs to its intersection with Institute street, and, in the middle of this intersection the truck collided with an electric street car of the defendant company approaching from the south. The ordinance of Colorado Springs provides that----

'At street intersections the driver of any vehicle shall have the right of way over any other vehicle coming from the driver's left and shall yield the right of way to any other vehicle coming from the driver's right.'

Cohun the driver of the truck, did not see defendant's car until it was within 20 feet of him. In this, under the facts of the case, he was guilty of contributory negligence. Livingston v. Barney, 62 Colo. 528, 163 P. 863.

His negligence, however, cannot be imputed to plaintiff. C. & S. Ry. Co. v. Thomas, 33 Colo. 517, 81 P. 801, 70 L.R.A. 681, B Ann.Cas. 700; Denver Tramway Co. v. Armstrong, 21 Colo.App. 640, 643, 645, 123 P. 136; 88 Cent. Law J. 174.

The exception to the rule against imputed negligence in cases like the present is where the driver is the servant or agent or otherwise under the control of the passenger. The plaintiff's own want of care in such cases is also sometimes inaccurately spoken of as an exception to this rule, but plaintiff's own want of care is, of course, never imputed, but is always effective independently of imputation. A correct statement appears in Virginia Co. v. Gorsuch, 120 Va. 655, 91 S.E. 632, Ann.Cas. 1918B, 838, in Dean v. Penn. R. Co., 129 Pa. 514, 525, 18 A. 718, 6 L.R.A. 143, 15 Am.St.Rep. 733, and Crescent v. Anderson, 114 Pa. 643, 647, 8 A. 379, 60 Am.Rep. 367. See, also, 88 Cent. Law J. 174.

Was plaintiff herself guilty of negligence? She took no care, did not look, and did not see the car at all, though she might have done so, and it is insisted that she ought to have looked and listened and warned her husband. It was her duty to exercise that kind and degree of care that a person of ordinary prudence would exercise under like circumstances, and the court, in instructions 13 and 14, so instructed the jury.

The questions, then, for decision concerning her contributory negligence, were: First, how a woman of ordinary prudence would behave situated as plaintiff was? Second, did plaintiff so behave? These questions are ordinarily for the jury, and the courts cannot interfere unless the jury's answer is so manifestly wrong as not reasonably to be the subject of dispute.

Since plaintiff's negligence, if any, was failure to look or listen, and since her conduct in this respect is undisputed, the jury by their verdict for plaintiff necessarily decided that a woman of ordinary prudence in like circumstances would not have looked or listened.

We are now asked to say that the verdict was wrong because her conduct was negligent as a matter of law, which would be equivalent to saying that a woman of ordinary prudence, under the same circumstances, would have looked or listened, and that that proposition is so manifest as not reasonably to be a subject of dispute. This we cannot say.

2. Defendant argues that negligence on its part was not shown because when the motorman first saw and was first able to see the truck, the collision was so imminent that he could not stop in time to avoid it. A...