Eagan v. Maiselson
| Decision Date | 28 March 1960 |
| Docket Number | No. 18561,18561 |
| Citation | 350 P.2d 567,142 Colo. 233 |
| Parties | John EAGAN, Plaintiff in Error, v. Jerome MAISELSON, Defendant in Error. |
| Court | Colorado Supreme Court |
Myron H. Burnett, Denver, for plaintiff in error.
John D. Ryan, Thomas J. Mitchell, Denver, for defendant in error.
The parties are here in inverse order of their appearance in the trial court, and will be referred to as they there appeared, or by name.
The complaint alleged that on July 14, 1955 at approximately 8:15 P. M. plaintiff was operating a motorcycle in an easterly direction on West Colfax Avenue when defendant, driving an automobile in a westerly direction on West Colfax, carelessly and negligently, without signal or notice, made a left turn immediately in front of plaintiff's approaching motorcycle, causing plaintiff to collide with defendant's car, resulting in personal injuries and property damage to plaintiff.
Defendant by answer admitted that such collision occurred but denied all other allegations of the complaint, and alleged that the damage and injury complained of was caused by plaintiff's negligence or contributory negligence.
Trial was to a jury and upon conclusion of all the evidence the defense of contributory negligence was withdrawn from the jury's consideration by the trial court. The jury returned a verdict for plaintiff in the sum of $10,313.80. Judgment was entered on the verdict.
Defendant is here by writ of error seeking reversal and asserts that the trial court erred in the following particulars: In taking the defense of contributory negligence from the jury; in rulings on the admission and rejection of evidence, and in denying motions for a mistrial and for a directed verdict.
The record discloses that when the collision occurred it was dark; the streets were dry; the weather clear and the visibility good.
Plaintiff testified that he was operating his motorcycle in an easterly direction on West Colfax Avenue, a four-lane thoroughfare with a posted maximum speed limit of 35 miles per hour, and was traveling on the inside lane at a speed of 30 to 35 miles per hour; that as he approached the intersection of Kendall Street on West Colfax Avenue he noticed an automobile in the intersection signaling for a left turn with his blinker lights and thought the driver would wait until he passed before turning; that a 1955 Chevrolet 'dropped out of nowhere' and He testified that the car which collided with his motorcycle was not the same automobile that he observed standing in the intersection signaling for a left turn.
Harold Hapgood, a witness for plaintiff who was riding with plaintiff on the motorcycle at the time of the collision, related substantially the same account of the accident as that testified to by plaintiff. In addition this witness testified that the lights on the motorcycle were on at the time of the collision and that defendant's automobile was parked behind the vehicle signaling for a left turn and suddenly 'shot out in front of us.'
The officer who investigated at the scene of the collision testified that Kendall street, a paved road running north and south meets Colfax Avenue which runs east and west, but does not intersect Colfax Avenue; that a parking lot is situated directly opposite Kendall street on the south side of Colfax Avenue; that a narrow graveled road running north and south is located just east of such parking lot; that Colfax is not divided by a double yellow line at the place where the collision occurred.
The officer testified that no skid or brake marks were left by the motorcycle; that the point of impact was a distance of 10 to 12 feet from the south edge of Colfax; that the automobile came to rest approximately 18 inches from the south edge of the pavement; that the motorcycle collided with the right front wheel of the automobile, and that the front of defendant's car was pushed 7 feet to the east by the force of the impact.
Defendant testified as follows: He was following an automobile operated by Harold LaRose at the 'Playmor' which adjoins said parking lot. As he approached Kendall street LaRose had turned at the intersection of Kendall and Colfax and entered the parking lot; that there was no car in front of him when he entered the intersection with his left blinker signal on while he waited for several eastbound cars to proceed. His headlights were on dim and he could see approximately 150 feet in front of his car, but did not see an approaching vehicle or the lights of an approaching vehicle. He then executed a left turn in low gear at a speed of 4 to 5 miles per hour; was almost across Colfax and had begun to turn right into the parking lot when the collision occurred. He did not see the motorcycle until it was a few feet from his car.
Defendant's testimony was corroborated by Harold LaRose who testified that after getting out of his car in the parking lot he saw defendant's car in the intersection waiting to make a left turn. There was no car immediately ahead of defendant's automobile, therefore he started a left turn and the collision occurred. The witness did not see the motorcycle before the impact.
Another witness, E. L. Montgomery, testified that he was traveling on West Colfax Avenue at a speed of 35 miles per hour when a motorcycle carrying two men, proceeding in the same direction, passed him at Pierce street, several blocks west of the accident, and his was the first automobile from the west to arrive at the scene of the accident. This witness was not permitted to give his estimate of the motorcycle's speed, nor whether he observed the motorcycle's lights. This we think was error. A person of reasonable intelligence may express an opinion of the speed of an automobile or other moving object coming under his observation without proof of further, qualifications. Sherry v. Jones, ...
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...without proof of further qualifications. The weight of such testimony is to be determined by the trier of fact. Eagan v. Maiselson, 142 Colo. 233, 350 P.2d 567; Sherry v. Jones, 133 Colo. 160, 292 P.2d 746. This rule logically extends to a driver's estimation of his own In this case, howeve......
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