Eddy v. McAninch, 18338

• Decision Date: 07 December 1959
• Docket Number: No. 18338,18338
• Citation: 141 Colo. 223,347 P.2d 499
• Parties: Ruth EDDY, Plaintiff in Error, v. Clifford W. McANINCH, Defendant in Error.
• Court: Colorado Supreme Court

Page 499

347 P.2d 499

141 Colo. 223

Ruth EDDY, Plaintiff in Error, v. Clifford W. McANINCH, Defendant in Error.

No. 18338.

Supreme Court of Colorado, En Banc.

Dec. 7, 1959.

Eugene O. Bird, Colorado Springs, for plaintiff in error.

Rector & Kane, Colorado Springs, for defendant in error.

KNAUSS, Chief Justice.

The parties are here in the same order they appeared in the trial court and we will refer to them as they there appeared.

Plaintiff brought the action to recover damages for personal injuries resulting when an automobile in which she was riding as a passenger collided with a car driven by the defendant at the intersection of U. S. Highway 85-87 and South Gate Road at the southern outskirts of the city of Colorado Springs. Trial to a jury resulted in a verdict for defendant. Motions for judgment notwithstanding the verdict and for a new trial were overruled and the plaintiff is here by writ of error seeking reversal.

The facts, except for the force and effect thereof, are not in dispute and appear from the record briefly as follows: The intersection of U. S. Highway 85-87 and South Gate Road is located some two miles south of Colorado Springs. The approach to this intersection from the south is down grade for a considerable distance and traffic lights control the flow of traffic so that on occasion northbound traffic on 85-87 will be halted while southbound traffic is permitted to turn left into South Gate Road. About 9:30 p. m. on the evening of July 11, 1956 the plaintiff was a passenger in an automobile driven by one Gordon F. Bibb proceeding south on 85-87 and intending to make a left turn into South Gate Road. As Bibb was making the left turn pursuant to signal lights in his favor, the defendant traveling north on 85-87 against red signal lights holding northbound traffic, continued into the intersection striking the Bibb car near the right front and proceeded on striking a third automobile which had just entered the highway from South Gate Road. The impact of the collision threw plaintiff against the rear view mirror, injuring her neck, and against the instrument panel, injuring her leg and knee. It was shown that prior to the accident plaintiff suffered from osteoarthritis, and it is said that the injuries received in this accident so aggravated that condition as to render her permanently disabled, variously estimated at one to five per cent. There is testimony that the injuries to her neck have resulted in recurring headaches requiring the wearing of a cervical collar and making it difficult for her to perform her occupation as a telephone operator. Proof was submitted of the medical and hospital expenses incurred.

Defendant frankly admitted driving through the red light and striking the Bibb car. He testified that the automobile he was driving had been in his possession but a short time--about a week. That upon the evening in question he was returning to Colorado Springs from the town of Fountain where he had been conducting midweek services, he being a supply pastor for a small church at that place; that the traffic during the return trip was heavy and his speed did not exceed thirty-five miles an hour during the trip. Upon approaching the intersection of South Gate Road he was following a large tractor truck which stopped at the intersection in response to a red signal light; that he attempted to apply his brakes but there was no response, he then tried to use the hand brake with the same result. To avoid striking the rear of the large truck ahead of him he turned to the right and passed the truck on that said, continued on into the intersection and collided with the Bibb car. He asserted that he had had no trouble with the brakes of the car failing to operate on the trip to Fountain or at any time during his use of the car until the moment of this accident. A Highway Patrolman who arrived at the scene within minutes after the collision stated that he tested the brakes of defendant's car and that they were not then in operating condition. The service manager of the firm from which defendant had purchased the car testified that the brakes had been inspected and were in good operating condition when the car was delivered to the defendant a week or so before the accident; that he examined and inspected them the morning following the accident and they were then in operating condition. The operator of a brake and wheel alignment establishment examined and tested them a few days after the accident and found them in good condition. Both of these witnesses stated that to the best of their knowledge no adjustment or tampering with the brakes after the accident and prior to the post-accident examination had occurred.

There was testimony that a brake failure, such as occurred here, can happen suddenly and unexpectedly from a variety of causes, such as dirt becoming lodged in a valve of the master cylinder. After a full scale hearing the jury returned a verdict for the defendant.

Plaintiff assigns as error the overruling of her motion for judgment notwithstanding the verdict, grounded on the contention that upon the evidence the defendant was guilty of negligence as a matter of law. Defendant asserts that the case was tried on the theory of unavoidable accident, and under such theory the jury was entitled to consider all of the evidence in resolving whether the accident was such as could not have been avoided by the exercise of reasonable diligence on the part of either party.

The theory upon which the case was submitted to the jury is obscured from us by the fact that the instructions to the jury are not included in the record before us. We must, therefore, assume that they embraced all of the issues advanced by either party, and that they fully and properly advised the jury of the law applicable to the facts in evidence.

In Alward v. Paola, 79 Cal.App.2d 1, 179 P.2d 5, 10, it was said: '* * * it is not within our province to weigh the evidence, and it cannot be said there is no evidence to sustain the implied finding that Mrs. Paola was not negligent.' In the Alward case the defendant's car went out of control when the brakes on the car failed, and the accident occurred in which plaintiff, Alward, sustained damage. There the court had before it the instructions given the jury, and affirmed a judgment for defendant. Here we do not have the instructions given the jury.

In support of her contention that defendant was guilty of negligence as a matter of law, the plaintiff refers to C.R.S. '53, 13-4-105, relating to the required braking equipment on motor vehicles operated upon the highways of this state, and asserts that the evidence shows a violation of such provisions in that at the time of the accident both the service and hand brakes of the defendant's car were defective and that their failure to operate was the proximate cause of the collision. The cases of Barsch v. Hammond, 110 Colo. 441, 135 P.2d 519 and Brothers v. Chatfield, 113 Colo. 7, 154 P.2d 46 are cited. In the latter case it is said:

'Plaintiff had the right of way (under a municipal ordinance), and had it been yielded to plaintiff, the collision would have been avoided. Under these circumstances the defendants had the burden of reasonably explaining their negligence in failing to yield the right of way.'

This falls far short of holding that violation or non-compliance with a statute or ordinance will invariably constitute negligence as a matter of law. Under some circumstances the courts reserve the right to determine whether the violation of a statute or ordinance is negligence per se. Thus in Crosby v. Canino, 84 Colo. 225, 268 P. 1021, 1023, Mr. Justice Butler, speaking...