Duffy v. Gross, 16016

• Decision Date: 23 January 1950
• Docket Number: No. 16016,16016
• Parties: DUFFY et al. v. GROSS et al.
• Court: Colorado Supreme Court

Page 498

214 P.2d 498

121 Colo. 198

DUFFY et al. v. GROSS et al.

No. 16016.

Supreme Court of Colorado, en Banc.

Jan. 23, 1950.

Burris & Bumgardner, Pueblo, for plaintiffs in error.

A. T. Stewart, Pueblo, William L. Lloyd, Pueblo, for defendants in error.

HOLLAND, Justice.

Defendants in error, as plaintiffs in the trial court, filed, on December 28, 1946, their complaint against plaintiffs in error for damages arising out of an automobile collision which occurred on the 23rd day of December, 1945, at about 11:15 P.M., at the intersection of Berkley and Danforth streets in the city of Pueblo, Colorado, Reference to parties is made as they appeared at the trial.

On October 30, 1947, a jury returned a verdict for plaintiff Albert Gross in the sum of $500 for automobile property damage, and a verdict for Myrtle Gross in the amount of $5,500 for personal injuries, on which judgments were entered. Motion for new trial was overruled and application for review on writ of error followed.

The evidence discloses that Myrtle Gross was driving an automobile belonging to her husband and coplaintiff, Albert Gross, in a southerly direction on Berkley at about 11:00 o'clock P.M., and at the intersection of Danforth there was a collision with an automobile being driven easterly on Danforth by defendant Donald Duffy. This automobile was owned by Peter Duffy, the driver's father. The ownership and family-car doctrine as it related to both cars involved was admitted.

Plaintiff Myrtle Gross testified that she was fifty-two years of age, was familiar with the intersection involved and she stated that on approaching the intersection, she looked to her right and left and proceeded across the street; there was nothing in sight and she had seen nothing until a car shot across the street in front of her; she had looked to her right and there was nothing coming at the time, and she saw no head lights of any cars approaching; she got into the intersection and a car shot through in front of her and she did not see it until it was passed her, 'then bang, another car struck me, it sounded just like an explosion.' Her car was struck back of the right hand door and if there had been lights on the other car, she would have seen them because she looked in that direction; her car was shoved across the street against the storm sewer where it stood until some man knocked on the door of the car and she opened it and asked him not to touch her; she could not talk very good, her face was caved in, the upper part of her mouth torn out and her teeth were all broken off, her chest was crushed in; she had a broken left hand across the bone in the back of the hand; her back was injured; she had a hole in her leg; that she was in the hospital from December 23, 1945 until January 7, 1946, and received operation on her face and mouth by Dr. De Rose and hand-injury treatment by Dr. Ley; broken teeth and broken bone were removed and the inside of her mouth behind her nose was sewed up and down across her upper lip; she lost sixteen teeth and has a scar across her upper lip; that the nerves of her mouth are impaired and she has to pull her lips down over her teeth; she testified further as to the pain and suffering; that she has a permanent injury to her left hand, and is unable to perform ordinary household duties with her left hand; that due to the injuries to her legs, she has fallen many times; that prior to the accident she worked in the assessors' office and had an outside earning capacity of approximately $500 a year; that since the injury she has had to spend two dollars per day for household help. She gave further testimony relative to the doctors and the various treatments, the cost of the hospitalization, medical care and drugs. About all of this there is little dispute.

At this point, it will be noted that there is no serious contention about plaintiff's injuries and the permanency thereof.

Fred A. Hegler, police officer of the city of Pueblo, answered the call, and he responded sometime between 10:30 and 11:00 o'clock P.M. He was accompanied by Officer Graf, who made the report. He talked with Donald Duffy at the time in the presence of Officer Graf and they asked him to show his driver's license; Duffy said he had been following another car. He further testified that there was a stop sign at Danforth and Berkley located on the southwest corner of the intersection, and that to comply with the stop sign, the driver proceeding east on Danforth in crossing Berkley would be required to stop.

On cross-examination, the officer was handed the original police report of the accident, and stated that he did not make it.

M. B. Graf, police officer, testified that he was a radio patrolman; that he investigated the accident at the time of the collision, talked with Donald Duffy, and asked him for a driver's license, which he had; that he asked him what his hurry was and Duffy said he was playing tag with some other car; that he prepared exhibit A, the police report, right after the accident, drew a diagram of the accident, and that the circles on the southwest corner of Danforth and the northeast corner of Danforth represent stop signs and were placed on the report immediately after the accident. On cross-examination, he stated that he did not know how the circles got there and that in response to the marking, 'no control present,' it could mean a lot of things, no lights, no stop lights or no officer present.

At this juncture considerable interrogation of the witness and argument back and forth between counsel concerning the police officer's report of the accident over the matter of, in one place, circles, indicated stop signs, and in another, under traffic control, which showed no traffic control. The request of defendants' counsel to have the testimony of Officers Graf and Hegler stricken because the official report appeared to have been altered was denied by the court.

Perry Hanson, a witness for plaintiffs who resided about 100 feet from the intersection where the collision occurred, stated that he had lived there since January 17, 1944; that he did not see the accident or observe the stop sign on the night in question, but that on the following morning there was a stop sign on the southwest corner of Danforth and that there had been one there before; he further stated that the reason he took particular notice concerning the stop sign was that on the next morning he was looking the situation over to see how the accident happened.

Albert Joseph Arraj, witness for plaintiffs, testified that he was service manager of the Colorado Motor Car Company; that he examined the Gross car after the collision; that the front grill was broken; cowl was pulled up and the front wheels were bent back under the car; that the frame was twisted; that the wheels were bent and the shock absorbers broken; transmission case broken; fly wheel housing broken; door of the tubes of the rear housing was bent; that the car looked to him to be beyond repair, and that the damage would run possibly five to six hundred dollars. He stated, in his opinion, that the injury to the Gross car showed a head-on collision.

Plaintiffs submitted testimony concerning plaintiff Myrtle Gross' physical condition and the hospital and medical treatments and expense.

Defendants' testimony as abstracted is substantially as follows: Frank G. Kolbezen testified that he was police court stenographer, and was familiar with police reports; he detailed the manner in which same were made and testified that there appeared to have been erasures on the reverse side of the report which had been pictures of the automobiles and that two little circles had been written in, in pencil, on the carbon side of the report.

Defendant Peter S. Duffy, owner of one of the cars involved in the collision, learned about the collision and went later to the scene of the accident particularly because the police report showed that the car driven by Donald Duffy, his son, had struck the Gross car broadside. He found all the damage to the Duffy car was to the left side of the car, fender had been rolled up, the door knob knocked off, windows broken on the left side, and that there was no damage to the front end of the Duffy car at all; that the next morning, he and his wife went to the intersection, checked all the corners carefully and found no evidence of any stop signs.

Donald Duffy, driver of defendant Peter Duffy's car, testified in his own behalf that he was a student at the Pueblo Junior High School and that at the time of the collision, John and Tommy Titman and David Druva were passengers in his car; that he had been at the Titman home earlier in the evening; that the boys had gone in the car to get a soft drink and were returning to the Titman home when the accident occurred; that the lights of his car were burning as he approached Berkley street where he intended to turn right to the Titman residence; that there was no stop sign at this intersection; that there was a car traveling ahead of him approximately a block away; that he had been traveling behind this car for approximately three or four blocks; that he looked to the right on approaching Berkley and to the left and saw the headlights of the Gross automobile; that he was about twenty-five feet from the curb line when he first saw the headlights of the Gross car; that he was driving approximately thirty miles an hour; he slowed down to make the turn, and that he had not completed the turn into Berkley when the Gross car collided with his car, coming up along the left side of his, causing the door of his car to fall open; that he grabbed at the steering wheel to avoid falling out and this caused his car to turn to the left, cross the street, and go up over the curb on the opposite side of the street; he then went to the Gross car which was right up against the corner of the curb with the front bumper over the manhole cover; then returned to his car...