Dillon v. Sterling Rendering Works, Inc.

• Decision Date: 16 September 1940
• Docket Number: 14640.
• Citation: 106 Colo. 407,106 P.2d 358
• Parties: DILLON v. STERLING RENDERING WORKS, Inc., et al.
• Court: Colorado Supreme Court

106 P.2d 358

106 Colo. 407

DILLON v. STERLING RENDERING WORKS, Inc., et al.

No. 14640.

Supreme Court of Colorado, En Banc.

September 16, 1940

Rehearing Denied Oct. 14, 1940.

Error to District Court, Logan County; Arlington Taylor, Judge.

Action by Katherine E. Dillon against the Sterling Rendering Works Inc., and Ray Large, for death of plaintiff's husband allegedly occasioned by the negligent operation of a motortruck by the individual defendant, an agent of the corporate defendant. Judgment for defendants, and plaintiff brings error.

Judgment reversed, and case remanded, with directions to grant a new trial.

Sauter & Sandhouse and George E. McConley, Jr., all of Sterling, for plaintiff in error.

Blount January & Yegge, of Denver, for defendants in error.

OTTO BOCK, Justice.

This action was instituted by plaintiff in error, plaintiff below under the provisions of sections 2 and 3, chapter 50, '35 C.S.A., for damages resulting from the death of her husband occasioned, as it is alleged, by the negligent operation of a motortruck by Large, an agent of defendant in error Sterling Rendering Works, Inc. At the conclusion of the evidence both parties moved for a directed verdict, the jury was discharged, and, upon due consideration, judgment was entered in favor of defendants. Each of the parties assigns error based upon the rulings of the trial court.

The trial court made specific findings of fact, from which it appears that the accident here involved occurred February 21, 1938, at 7 o'clock a. m., about 3 1/2 miles northeast of Sterling, Colorado, on paved highway No. 128; that Joseph P. Dillon, husband of plaintiff, seventy-two years of age, in perfect health, was on his way alone from his home in Sterling to his ranches northeast of that city, driving a four-door La Salle sedan; that the atmospheric conditions were such that the windshield was entirely frosted; he stopped his car and alighted to remove the accumulated frost, while the car rested partially on the paved highway; that the rear end was three feet four and one-half inches on the pavement and about two feet on the graveled shoulder, the car being without lights. Defendant Large, employee of defendant company, at approximately the same time, was driving a truck--which was seven feet four inches wide--on the same highway, traveling in the same direction as the Dillon vehicle, at a speed of approximately fifteen to twenty miles per hour; that the windshield of the truck became frosted over, and visibility therethrough completely obstructed save for a narrow two-inch up-and-down strip on the left side thereof, sufficient to enable him to see the black stripe down the center of the pavement as he drove along, to which he constantly directed his attention. Under these conditions and circumstances the truck sideswiped Dillon's car on its left side, broke the tail light, damaged the left rear fender and badly damaged the upholstery on the inside of the left front door, the car being propelled by the impact fifty to one hundred feet, where it came to a stop. Large then climbed out of the truck cab, up to that time not knowing what or whom he had struck. Never up to that time had he seen, or attempted to see, if anyone or any object was on the highway ahead of him. The collision resulted in Dillon's death shortly thereafter, on the same day. Additional facts will be detailed as we proceed.

One of the errors assigned by defendants is that the trial court erroneously found that Large was negligent, when it should have found, as a matter of law, that he was not. A sufficient disposition of this contention is a quotation from the trial court's findings, which we believe to be fully justified and correct. It is as follows: 'That Ray Large could leave his truck out all night in the weather the 21st of February, start out with it with its windshield in a semi-obstructed condition and at 7 o'clock in the morning, drive 3 1/2 miles in a dense fog with a freezing temperature, mingled with sleet; permit his windshield to be completely obstructed so far as any visibility therethrough was concerned, with only a two-inch up and down strip on the left end thereof, and concentrate his view upon the black stripe down the center of the highway, stopping for his own safety at a railroad crossing and continuing thereafter around a curve, such as described in this case, under the conditions atmospheric and otherwise as then existing, and all of the time concentrating his attention upon the black stripe without making the slightest effort to observe whether on his portion of the highway there might be some other obstruction, and be oblivious to his surroundings otherwise, and kill a human being, and come forward with a claim that he was not guilty of negligence himself, simply because he kept his truck as near as possible on the black stripe on the pavement center, is too much for any court to recognize as freedom from negligence. I am convinced that Ray Large was guilty of gross negligence up to and at the time of the impact in this lamentable...