Crosby v. Canino

• Decision Date: 28 September 1931
• Docket Number: 12509.
• Citation: 89 Colo. 434,3 P.2d 792
• Parties: CROSBY v. CANINO et al.
• Court: Colorado Supreme Court

3 P.2d 792

89 Colo. 434

CROSBY v. CANINO et al.

No. 12509.

Supreme Court of Colorado

September 28, 1931

In Department.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Action by Villa Crosby against T. Canino, doing business as the American Beauty Baking Company, and Walter G. Lett. Judgment of dismissal, and plaintiff brings error.

Reversed and remanded, with directions.

Joseph J. Walsh and Donald F. Clifford, both of Denver, for plaintiff in error.

Ernest Morris, of Denver, for defendants in error.

HILLIARD J.

The parties appear as below. The plaintiff was injured through alleged negligence of the defendant Lett, employee of the defendant Canino. Trial to a jury resulted in a verdict of $1,500 for the plaintiff. A motion for new trial was granted to which the plaintiff objected and excepted, and elected to stand on her case as made, whereupon, on motion of the defendants, the action was dismissed. The principal errors assigned are the granting of the motion for new trial and the judgment of dismissal, and it is urged that this court should direct the reinstatement of the verdict and order judgment thereon.

The case has been here Before (Crosby v. Canino, 84 Colo. 225, 268 P. 1021, 1023), and the facts are fully set forth in that decision. We there determined that the trial court erred in granting the defendants' motion for nonsuit and that the evidence warranted submission to a jury. On the second trial the evidence was substantially the same and the defendants moved again for a nonsuit, upon the same ground of contributory negligence, but the motion was denied; the trial judge remarking, 'I think so, but the Supreme Court doesn't.'

The defendants' testimony was then received; and at the close of all testimony the defendants moved for a directed verdict, which was denied. In passing upon the motion the court said: 'No, the testimony is, her testimony was that the front end of the car was even with the door when she got off, but her testimony was also that the minute she alighted, or immediately upon her alighting the street car and all the other cars started on. The testimony is also that--some of the witnesses--that the automobiles were back of the street car, but the last witness, Poole, says his car was alongside the street car and he was the third car--two cars ahead of him--and he was alongside the street car; she started to go in front of his car and another car, all the cars started on--I don't know. It is up to the jury to determine whether of not she got frightened and went back the other way or--it is for the jury to decide. There is testimony both ways. No, I think under the testimony now, as it stands, in view of what Mr. Poole (a witness for defendants) has testified to, it is clearly a case for the jury. The motion will be overruled.'

We need not review the facts again; the testimony is substantially what it was in the record reviewed in Crosby v. Canino, supra, and it is clear to us, as it was to the trial court, that the case was properly to be submitted to the jury. Indeed, the testimony of Poole made the plaintiff's case stronger in this respect than on the first trial, and upon the evidence in that case we said: 'In the present case, it was for the jury to say whether or not the plaintiff acted with due care in not proceeding to the sidewalk to the right. According to her testimony, automobiles were between the street car and the curb.' We can entertain no doubt, therefore, that the verdict for plaintiff was supported by competent and sufficient testimony.

In their motion for new trial the defendants asserted the verdict was against the law and the evidence; that the court erred in admitting rule 7 of the traffic regulations promulgated by the manager of safety and excise; and that the verdict was excessive. The first ground is untenable, for it has already been determined by this court to the contrary. Crosby v. Canino, supra. The second ground is urged for the first time, and it is said that rule 7 was not pleaded in the complaint, but it is pleaded in the bill of particulars demanded by the defendants, and that sufficiently conforms to the practice.

Rule 7 requires that a 'driver of any vehicle must not attempt to pass another vehicle or street car at a street intersection,' and the rule is said to be incompetent because the truck had not reached the intersection. Traffic ordinances must be given a reasonable construction. Crosby v Canino, supra. The defendant Lett drove the truck out of the single file of cars at the very threshold of the intersection, and, when the plaintiff was struck, his car and those in the single file out of which he had swung were in motion, and all in the act of entering the intersection. We cannot so narrowly construe the word 'intersection,' for the manifest purpose and intent of the rule was to forbid the very thing the defendant Lett did. And it will be noted that the inhibition is against attempting to pass another vehicle at, not in, the intersection. When cars are in motion near an intersection, and one comes of the line and proceeds abreast of another, or attempts to pass another, so that it is obvious to all that it is the driver's intention to proceed into and across the intersection double file, the jury may well be allowed to consider the rule adopted by the manager of safety and intended to prohibit that practice. In the circumstances of this record, we think the rule was competent. It was brought to the attention of the jury by the court in outlining the issues, and no exception was taken to the court's statement that the plaintiff claimed the defendant...