Dilts v. Baker
| Citation | 427 P.2d 882,162 Colo. 568 |
| Decision Date | 22 May 1967 |
| Docket Number | No. 21312,21312 |
| Parties | Carl R. DILTS, Plaintiff in Error, v. Robert Francis BAKER and American Oil Company, Defendants in Error. |
| Court | Colorado Supreme Court |
George A. Hinshaw, Aurora, Myrick, Smith, Criswell & Branney, Englewood, for plaintiff in error.
Wood, Ris & Hames, Denver, for defendants in error.
The parties appear here in the same order as in the trial court and will herein be referred to as plaintiff and defendants.
The issues to be determined on this writ of error involve the propriety, under the evidence of this case, of not withdrawing from jury consideration the affirmative defense of contributory negligence in a 'rear-end' type of collision, and of not directing a verdict for plaintiff on defendants' liability.
Plaintiff was injured when the pickup truck in which he was a passenger was struck in the rear by a tank truck owned by the defendant American Oil Company and driven by its employee defendant Baker. The impact occurred on U.S. Highway 85 in Adams County at a point approximately ninety feet north of a signal light intersection. Prior to the time of impact, northbound traffic, including the subject vehicles, were stopped at the signal light. In front of the pickup truck was a 1961 Chevrolet automobile and behind the pickup was the defendants' tank truck. When the signal light changed to green, the traffic proceeded through the intersection beyond which the 1961 Chevrolet stopped for a reason not shown in the evidence. Cunningham, the driver of the pickup and the plaintiff both testified the pickup was brought to a stop behind the 1961 Chevrolet and that no contact was made therewith. The pickup truck left approximately nineteen feet of skid marks according to the investigating officer. It was then struck from the rear by the tank truck which left approximately forty-one feet of skid marks. The 1961 Chevrolet left the scene. On cross examination, defendant Baker testified that he believed that at the time of impact, the pickup may have been still moving forward. Also, he testified that his visibility was not impaired in any way; that he observed the brake light on the pickup flash on; that he was traveling about twenty miles per hour before applying brakes; and that he was approximately thirty feet behind the pickup just prior to applying brakes.
The alleged personal injuries of the plaintiff were sustained while he was recovering from the floor of the pickup a thermos bottle which had rolled off the seat when the brakes of the pickup were applied.
There was unexplained damage to the left front fender and bumper of the pickup which driver Cunningham conjectured must have occurred as a result of the tank truck picking up and tipping the pickup truck into the pavement.
At the conclusion of all the evidence, the plaintiff moved for withdrawal of the issue of the plaintiff's contributory negligence, and for a directed verdict on the question of defendants' liability. Both motions were denied by the trial court.
The foregoing represents essentially the fact situation which is undisputed by the parties. This case, which was tried to a jury, resulted in a verdict for the defendants upon which the court entered its judgment and dismissed plaintiff's complaint.
The plaintiff's main assignment of error is that the trial court, on the plaintiff's motion, refused to withdraw the issue of contributory negligence from the jury's consideration.
We have carefully examined the record on error and fail to discover a single point of evidence upon which the trial court could have properly submitted the issue of contributory negligence to the jury for its deliberation. The only possibility of an issue relating to contributory negligence concerns the damage to the left front fender of the pickup truck. The defendants maintain that this front end damage to the pickup truck formulated an issue of fact for the jury to determine whether or not the driver of the pickup truck was contributorily negligent, on the supposition that the pickup collided with the rear of the 1961 Chevrolet. We do not agree with this contention of the defendants as there was no evidence to support it. On the other hand, there were several itmes of evidence which...
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...to be unwarranted"). As such, it is not enough to merely show that the stop in question may have been sudden. See Dilts v. Baker, 162 Colo. 568, 571, 427 P.2d 882, 884 (1967); Churning v. Staples, 628 P.2d 180, 181 (Colo.App.1981); Moore v. Fischer, 31 Colo.App. 425, 429-30, 505 P.2d 383, 3......
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...337 F.2d 761, 765 (10th Cir.1964); In re People in Interest of R.D.S., 183 Colo. 89, 95, 514 P.2d 772, 775 (1973). In Dilts v. Baker, 162 Colo. 568, 427 P.2d 882 (1967), the evidence showed that at least three vehicles had passed through an intersection when the front vehicle stopped for an......
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Powell v. City of Ouray, 72--177
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