Denver-Los Angeles Trucking Co. v. Ward

• Decision Date: 17 December 1945
• Docket Number: 15405.
• Citation: 164 P.2d 730,114 Colo. 348
• Parties: DENVER-LOS ANGELES TRUCKING CO. v. WARD et al.
• Court: Colorado Supreme Court

164 P.2d 730

114 Colo. 348

DENVER-LOS ANGELES TRUCKING CO. v. WARD et al.

No. 15405.

Supreme Court of Colorado, in Department.

December 17, 1945

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Action by Marian Ward and others against the Denver-Los Angeles Trucking Company and another to recover damages for personal injuries and property damage sustained in a collision between an automobile and a truck.Judgment for plaintiffs against defendant named and defendant named brings error.

Reversed.

W. A. Alexander and Cecil M. Draper, both of Denver, for plaintiff in error.

Frank H. Hall, of Trinidad, for defendants in error.

BAKKE Chief Justice.

Defendants in error, Marian Ward, Charles J. Ward, Mary Pople and the Pople Brothers Construction Company, instituted an action against plaintiff in error Denver-Los Angeles Trucking Company and the Perry Trucking Lines, to recover for personal injuries and property damage sustained by them in a collision between an automobile belonging to the Pople company and certain trucks, the property of defendants, and caused, as they allege, by the negligence of defendants.At the close of the evidence, each defendant moved for a directed verdict in its favor.The motion of the Perry Truck Lines was sustained, but the case of plaintiff in error Denver-Los Angeles Trucking Company was submitted to the jury which returned verdicts in favor of the plaintiffs respectively, in various amounts, and judgments against defendant were entered accordingly.Reversal is sought on a writ of error.

The only question presented by the specifications of points, is whether the evidence of negligence was sufficient to require a submission of the case to the jury.The facts, briefly stated, are as follows: About six o'clock a. m., December 11, 1941, plaintiffs, while en route to California on highway No. 85, and at a point about an eighth of a mile south of Pecos, N. M., drove the Buick car, in which they were riding, against the rear end of a truck owned by the Perry Truck Lines which had been stopped at that point because the highway was blocked by a large truck-trailer, owned by defendant, the Denver-Los Angeles Trucking Company, which was stalled crosswise on the road.The road was icy, and defendant's truck, which had an overall length of about forty feet and carried a load of about twelve tons, was being driven up a hill at a speed of about five miles an hour until it reached a point where, because of ice and the steepness of the grade, the wheels could get no traction, and the truck began to slide backward.Crowe, the driver, in order to keep the machine on the road 'jackknifed' it, with the tractor to his left.In order to hold it in that position it was necessary for him to keep his foot on the brake pedal.He immediately called to his fellow driver who was asleep in the cab compartment, to get up and help him.While he was thus sitting with his foot on the brake pedal, the truck owned by the Perry Lines was approaching down the hill toward him and stopped within about thirty feet of defendant's truck.Almost immediately thereafter, not to exceed three or four minutes, the Buick car was driven along following the Perry truck, and Before the driver thereof could stop the car it crashed into the rear end of the Perry truck resulting in the injuries of which complaint is made.

The alleged negligence consisted of the blocking of the highway by Crowe and his failure 'to place any flares or other warning signals, or any guards to warn approaching cars of the fact that said highway was wholly blocked at said point.'

Clearly there was no negligence on the part of Crowe prior to the time when his truck stalled and when it 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 casewe said, concerning a car that had stalled on a mountain road: '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.* * * An accident may be unusual and unexpected, and still may not be the result of negligence.Merely because one driver has an accident on a road safely traveled by thousands does not prove that he is negligent.'In that casewe affirmed a judgment of nonsuit.

As to defendant's failure to place flares or guards to warn the drivers of approaching cars, that matter should not have been submitted to the jury, because no statute of the State of New Mexico requires the placing of flares, and we think the evidence shows conclusively that Crowe did not have time to place any other warning signals or guards; consequently their absence cannot be held to have been the proximate cause of the accident.According to plaintiffs' testimony, they could not have seen either flares or signals Before they struck the ice, which they said covered the whole road from where they first saw the blockade down to where their car came in contact with the Perry truck, a distance of 150 feet.It was still dark, and it they could have seen the reflection of the flares, they could have seen the reflection of the lights of defendant's truck, which lights were still burning and reflected in the general direction of plaintiffs' approach.This conclusion is fortified by the other admitted physical facts in the case.In the highway approaching the town of Pecos from the south, there is a hill about 350 feet long, in the middle of which is a dip.From the crest of this hill plaintiffs could see the top of the Perry truck, but when they descended into the dip they could see neither of the trucks until they came to the downward crest of the dip, where they struck the ice, after reaching which point, the accident became unavoidable.Regardless of whether we hold that the failure to place flares or other warnings was a failure to perform a statutory, or a common-law...