Fay v. Kroblin Refrigerated Xpress, Inc.

• Decision Date: 10 December 1981
• Docket Number: No. 80CA0038,80CA0038
• Citation: 644 P.2d 68
• Parties: Janet FAY, Plaintiff-Appellee, v. KROBLIN REFRIGERATED XPRESS, INC., an Iowa corporation, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 68

644 P.2d 68

Janet FAY, Plaintiff-Appellee, v. KROBLIN REFRIGERATED XPRESS, INC., an Iowa corporation Defendant-Appellant.

No. 80CA0038.

Colorado Court of Appeals, Div. III.

Dec. 10, 1981.

As Modified on Denial of Rehearing Jan. 28, 1982.

Hutchinson, Black, Hill, Buchanan & Cook, William D. Meyer, Steve C. Briggs, Boulder, for plaintiff-appellee.

Martin, Knapple, Humphrey & Tharp, James G. Martin, Boulder, DeMoulin, Anderson, Campbell & Laugesen, Richard W. Laugesen, Denver, for defendant-appellant.

PIERCE, Judge.

In this wrongful death action, defendant, Kroblin Refrigerated Xpress, Inc. (Kroblin), appeals from a judgment entered in favor of plaintiff, Janet Fay, after a jury found Kroblin solely negligent. We reverse.

Shortly after sunrise on November 4, 1977, Janet's husband, the deceased, and his passenger were killed in a two vehicle collision near Ogallala, Nebraska, on Interstate 80. The deceased was driving east in a pickup truck when it collided with the rear end of Kroblin's semi-trailer truck parked on that highway's south shoulder. Kroblin first contends that, by not directing a verdict that the deceased was at least partially negligent, the trial court erred. We agree.

The parties agreed that by applying the conflicts of law principles as stated in Sabell v. Pacific Intermountain Express Co., 36 Colo.App. 60, 536 P.2d 1160 (1975), comparative negligence was to be determined pursuant to § 13-21-111, C.R.S.1973 (1980 Cum.Supp.), while Nebraska law would apply to rules of the road, duty, and proximate cause. Hence, any negligence by the deceased is analogous to contributory negligence. Powell v. Ouray, 32 Colo.App. 44, 507 P.2d 1101 (1973).

Under the doctrine of contributory negligence, one has the duty to act as a reasonably prudent person by avoiding undue risk of harm to himself. Matt Skorey Packard Co. v. Canino, 142 Colo. 411, 350 P.2d 1069 (1960). Moreover, this duty has been extended to a decedent in a wrongful death action. Willy v. Atchison, Topeka & Santa Fe Ry., 115 Colo. 306, 172 P.2d 958 (1946). See § 13-21-111(1), C.R.S.1973.

We realize that generally, negligence, contributory negligence, and proximate cause are questions for the trier of fact, and that contributory negligence is rarely a question of law unless the facts are undisputed and a reasonable person can draw but one inference from them. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450 (1962); Lasnetske v. Parres, 148 Colo. 71, 365 P.2d 250 (1961). However, where as here, there is no conflict as to the physical facts of the accident, contributory negligence becomes a question of law for the court. See, e.g., Ridenour v. Diffee, 133 Colo. 467, 297 P.2d 280 (1956).

Stipulated photographs demonstrate that the Kroblin truck was not even close to the traveled portion of the road. Its outside wheels were on the grass off of the highway and only a part of the truck was even on the shoulder, approximately four feet from the traveled portion of the road. Moreover, the traveled portion of the highway consisted of four lanes and the east-bound lanes were 24 feet wide. The Kroblin truck, however, was struck almost directly from the rear, "a little bit off to the left of center," by the deceased's pickup truck, and there was no indication that the deceased's vehicle slowed much, if any, while traveling at highway speed.

In addition, at the time of the accident the highway surface condition was dry and clear and the weather was clear and not windy. It must also be noted that at the time of the accident it was apparently daylight, even though it may have been shortly after sunrise.

When a motorist cannot stop or turn aside in time to avoid a collision with a stationary object within his range of vision, he, as the deceased here, is negligent as a matter of law. Vrba v. Kelly, 198 Neb. 723, 255 N.W.2d 269 (1977). Furthermore, a driver of a motor vehicle has a duty to maintain a proper lookout and watch where he is driving so that when he sees an object plainly visible before him, he can stop his vehicle to avoid a collision. Clark Bilt, Inc. v. Wells Dairy Co., 200 Neb. 20, 261 N.W.2d 772 (1978); Newkirk v. Kovanda, 184 Neb. 127, 165 N.W.2d 576 (1969). There is no plausible reason why the deceased, had he avoided an undue risk of harm to himself, would have collided with the Kroblin truck.

Even if it is assumed that the truck was parked in violation of Neb.Rev.Stat. § 39-670(2) (reissued Vol. III 1978), there is no...