Daigle v. Prather, 20112
| Decision Date | 15 April 1963 |
| Docket Number | No. 20112,20112 |
| Citation | 380 P.2d 670,152 Colo. 115 |
| Parties | Harry P. DAIGLE, Plaintiff in Error, v. Dorothy Ellen PRATHER, Defendant in Error. |
| Court | Colorado Supreme Court |
Robert E. McLean, Marjorie Worland McLean, Denver, for plaintiff in error.
Wormwood, O'Dell & Wolvington, Denver, for defendant in error.
In his complaint Harry Daigle, plaintiff in the trial court, alleged that he suffered damages in the amount of $15,000 as the direct result of negligence on the part of the defendant, Dorothy Prather. In her answer Prather denied that she was in any wise negligent and affirmatively alleged that the automobile collision, out of which the litigation stems, resulted from the sudden failure of her brakes and was an unavoidable accident.
The evidence adduced upon trial disclosed that at about one o'clock P.M. on November 8, 1960 Daigle, who had been proceeding in a westerly direction on East 32nd Avenue approaching Monaco, in Denver, had stopped his motor vehicle for a traffic control signal light, which as of that moment was 'red'. While in this 'stopped' position awaiting the change of the signal light to green, his car was struck in the rear by a vehicle then being driven by Prather. Prather was also traveling in a westerly direction on East 32nd Avenue near Monaco, and she testified that when she was 'at least three or four car lengths' behind the Daigle vehicle she observed that the signal light was red and that his car was stopped therefor. She further stated her speed at the time 'couldn't have been more than thirty miles an hour,' and she later modified this by stating that she thought her speed 'was around between twenty and thirty'. While preparing to make what she declared was to be a 'normal' stop, she stepped on the brake pedal which went 'clear to the floor' and she thereafter crashed into the rear end of the Daigle vehicle because of this brake failure. In response to a series of specific questions as to why she didn't use the emergency brake, or 'cut to the right' or 'cut to the left', Mrs. Prather in each instance said 'it was too sudden.'
A police officer testified that he arrived at the scene of the accident shortly after its occurrence and that Mrs. Prather informed him then and there that she had been 'going west and was going to stop behind the car * * * [but] when I hit my brakes they were out'. This officer testified that he personally checked the brakes on the Prather vehicle and that 'they were completely out' and that the pedal 'fell to the floor'.
As a rebuttal witness Daigle called an automobile mechanic who testified that he examined the Prather vehicle shortly after the accident and that he found the master cylinder completely dry and that the 'steel line on the right rear * * * was worn through by a tail pipe'. He expressed the expert opinion that before these brakes went completely out there would be a 'forewarning', i. e. 'you're going to feel slack in the brake--it's going to feel rubbery and drop gradually'.
Mrs. Prather testified, however, that she did not have any 'forewarning' that her brakes were even defective, let alone that they were going 'completely out'. She was driving a 1956 Dodge, bearing a current brake and light certificate. She testified that the brakes had been relined about two months before the accident, which fact was corroborated by the aforementioned auto mechanic. She testified that she had been driving this car 'all the time' and that she had never experienced any trouble with the brakes prior to the time of the accident. When the accident occurred Mrs. Prather was en route from the Denver airport to her family home in Littleton. Her husband, not she, had just driven the car from Littleton to the airport where he boarded an airplane for Durango and she was returning home alone. In the comparatively short distance from the airport to the scene of this accident Mrs. Prather testified she had no occasion to stop her vehicle, though she did 'slow down' once for traffic. This she was able to do, and she denied that she had any 'advance notice' whatsoever that the brakes were going to fail when needed at the intersection of East 32nd Avenue and Monaco.
Trial was to a jury, which returned a verdict in favor of Mrs. Prather. Motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied and by the present writ of error Daigle seeks reversal of the judgment entered pursuant to the jury's verdict.
The trial court instructed the jury on the doctrines of 'unavoidable accident' and 'sudden emergency', Daigle objecting thereto, and in the trial court he specified as ground therefor that there was 'no evidence' to support the giving of either instruction. Here, in addition to assigning error to these two instructions, Daigle also strenuously argues that the trial...
To continue reading
Request your trial
-
Young v. Clark, 90SC354
...See Davis v. Cline, 177 Colo. 204, 493 P.2d 362 (1972); Cudney v. Moore, 163 Colo. 30, 428 P.2d 81 (1967); Daigle v. Prather, 152 Colo. 115, 380 P.2d 670 (1963); Stewart v. Stout, 143 Colo. 70, 351 P.2d 847 (1960); Ridley v. Young, 127 Colo. 46, 253 P.2d 433 (1953). In all of these cases, i......
-
Carter v. Unit Rig & Equipment Co.
...Bryant, 166 Colo. 113, 442 P.2d 425, 427 (1968); Cudney v. Moore, 163 Colo. 30, 428 P.2d 81, 83 (1967). See also, Daigle v. Prather, 152 Colo. 115, 380 P.2d 670, 672 (1963) (finding sudden emergency instruction appropriate where there was evidence of brake failure); accord, Annotation, Inst......
-
Cudney v. Moore
...his part is not guilty of negligence for an error of judgment when practically instantaneous action is required.' In Daigle v. Prather, 152 Colo. 115, 380 P.2d 670 (1963) we held the giving of an identical instruction to be proper on facts strikingly similar to the ones now before us. There......
-
Anderson v. Munoz, 20976
......Page 8. jury for determination, to wit: Daigle v. Prather, 152 Colo, 115, 380 P.2d 670; Mobley v. Cartwright, 141 Colo, 413, 348 P.2d 379; Eddy v. ......