Coors v. Brock
| Citation | 22 Colo.App. 470,125 P. 599 |
| Parties | COORS v. BROCK. |
| Decision Date | 08 July 1912 |
| Court | Colorado Court of Appeals |
Appeal from District Court, City and County of Denver; Greeley W Whitford, Judge.
Action by Albert W. Brock against Adolph Coors. From a judgment for plaintiff, defendant appeals. Affirmed.
Ezra Keeler, of Denver, for appellant.
Bicksler, Bennett & Nye, of Denver, for appellee.
This case was before the Supreme Court upon a former appeal in which a judgment for the plaintiff was reversed, because of error in certain instructions given by the court to the jury. Coors v. Brock, 44 Colo. 80, 96 P. 963. The cause was again tried, and upon verdict of the jury judgment was rendered from which the defendant again appealed.
The complaint alleged that, while plaintiff was riding a bicycle near the intersection of Lawrence street in the city of Denver, defendant's servant so negligently and carelessly drove a two-horse team and wagon that, without fault or negligence on the part of plaintiff, the horses of defendant struck plaintiff and threw him off his bicycle upon the ground, thereby inflicting injuries to his person and bicycle, for which he seeks compensation.
The answer admitted defendant's ownership of the team and wagon, and that the same was being driven by defendant's servant, that while plaintiff was riding his bicycle he came into collision with defendant's horses and was thereby thrown from the bicycle to the ground, but avers that plaintiff's alleged injuries were caused through the negligence of plaintiff, directly contributing thereto in consequence of his riding into and against one of defendant's horses, without fault or negligence on the part of defendant or his servant. All other averments of the complaint were denied by the answer, and all averments of new matter in the answer were denied by reply.
A rather full statement of the evidence as it appeared upon the first trial is given in the opinion delivered by Mr. Justice Maxwell in Coors v. Brock, supra which differs to some extent from the evidence upon the second trial.
Plaintiff's testimony shows that he overtook defendant's team and wagon at the intersection of Curtis street with Nineteenth street, from which point he traveled along side of defendant's wagon for about 2 blocks to the corner at Nineteenth and Lawrence streets; that they were traveling upon the right side of Nineteenth street, plaintiff on his bicycle about 3 feet from the curb and directly opposite the driver upon the front end of his wagon which was nearer the middle of the street than, and about 7 feet from, the plaintiff; that both were going about 8 miles per hour; that while approaching Lawrence street and about 25 feet therefrom, plaintiff saw a street car coming down Lawrence street from Twentieth street, running at a high rate of speed; that he was unable to see the car sooner because of a building upon the corner of the block; that upon seeing the car he suddenly checked the speed of his wheel, intending to run behind the car and down on the right-hand side of Nineteenth street to his place of business; that defendant's team turned suddenly to the right toward plaintiff; that to save himself plaintiff turned into the curbing as closely as he could, but the horses caught him at the corner of the curb, knocked him down, and trampled upon him and his wheel after he struck the ground; that there was nothing to prevent the driver from seeing plaintiff and no obstructions to the left of the driver. Plaintiff was severely and permanently injured. His testimony was supported by a witness to the accident who stated that she saw the driver whirl his horses to the right, throwing plaintiff under the team to the ground.
The driver testified that he did not see plaintiff until plaintiff came into collision with one of the horses; that he first saw plaintiff as he brought his horses to a stop, at which time his horses' heads were near the first rail of the car track crossing Nineteenth street (the car being upon the opposite track); that in stopping his team he pulled it a little to the right, when the wheelman passed from behind the wagon and...
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