Gossard v. Watson
| Decision Date | 29 July 1950 |
| Docket Number | No. 16418,16418 |
| Parties | GOSSARD v. WATSON et al. |
| Court | Colorado Supreme Court |
Cole & Cole, Glenwood, Springs, for plaintiff in error.
Sid Pleasant, Fred A. Videon, Craig, for defendants in error.
Review is sought by plaintiff of an adverse judgment rendered in his action for damages resulting from an automobile accident. At the close of plaintiff's evidence, motion for nonsuit on the ground that there was not sufficient evidence to go to the jury was denied by the court, but at the close of all the evidence motion for directed verdict interposed by defendants on the same ground was sustained. The only question here involved is whether the court erred in directing the verdict.
It is undisputed that plaintiff, at the time of the accident, was traveling south in a Ford one-ton pickup being driven by his employee Sandoval; that they followed a large truck belonging to defendants and driven by one of their drivers and were themselves followed by a second large truck also belonging to defendants and driven by one of their drivers. A short distance south of the Yampa River bridge, just as the lead truck caught up with a trash wagon going in the same direction, the lead truck driver saw a loaded coal truck coming around a curve ahead of him and brought his truck to a stop, or near stop, behind the trash wagon. As this was taking place, plaintiff's pickup suddenly swung out from behind defendants' lead truck and went diagonally across the other traffic lane where it was struck by the north-bound truck, with resultant injury to plaintiff and damage to the pickup.
The vital question in the case was the cause of plaintiff's pickup suddenly swinging over to the wrong traffic lane in the path of the oncoming truck. As to such cause, plaintiff testified in brief that the truck in front of them, which had been going at a moderate rate of speed, slowed down rather precipitately and that he and his driver who were near it also had slowed down practically to a stop when he felt the impact of some vehicle behind striking their pickup and they were pushed by that impact to the left, almost across the highway where they were hit by the north-bound truck; that he was thrown out of the cab onto the highway, and when he regained his feet saw his pickup standing on the west side of the oil pavement headed in a northwesterly direction and saw on the east side of the highway the north-bound truck which had struck them, with its semitrailer overturned on the barrow pit and its truck upright on the pavement; that he also saw on the west side of the highway, about fifteen to twenty-five feet north of the pickup, another truck pointed practically south.
Plaintiff's driver, Sandoval, testified in brief that he was going toward Meeker in the pickup, driving behind one coal truck and with another coal truck following; that after crossing the river bridge he was driving in second gear; that he was going about ten to fifteen miles an hour when the truck ahead of him slowed down, and he slowed down; then the truck ahead stopped and he stopped, and the truck behind hit them, gave them a push and a swing, causing the pickup to slide, with the brakes, around through the middle of the highway, where they were struck by the truck coming down over the hill; that he had noticed the truck behind through the mirror, following him 'pretty close.'
The testimony of defendants' witnesses contradicted that of plaintiff and his driver, but with such evidence we need not now be concerned. The testimony of plaintiff and his driver, above summarized, appears to be inherently credible and in itself sufficient to establish a prima facie case of liability. The trial court must have so considered it in denying motion for nonsuit; if so, the evidence of defendants, in order to justify a directed verdict, must do more than contradict that evidence; it must nullify it.
We find no evidence in defendants' behalf which nullifies plaintiff's evidence, and no evidence establishing his contributory negligence as a matter of law. It is urged that an eighty-eight foot pickup tire mark on the pavement disproves plaintiff's evidence, but the tire mark may have resulted from the pickup being impelled by external force, as well as from excess speed. While physical evidence and lack of evidence of impact on the rear of the pickup and the front of the truck which is claimed to have impelled it forward, as carefully reviewed in the light of the contentions pointed out in defendants' brief, constitute important evidence in the case, still, the inferences to be drawn therefrom are inconclusive. It is urged that the admission of plaintiff and his driver, that they did not see the trash wagon or the oncoming truck, demonstrates that they were negligent in law by driving too closely behind the lead truck; however, even if so, if their testimony is to be accepted, such failure to see was in no wise a proximate cause of the accident.
It is finally urged that plaintiff, by his own admission, was guilty of contributory negligence, in that he was violating the statute providing that the driver of any motor truck shall not follow within three hundred feet of another motor truck. truck, their proximity to the truck...
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