Gushurst v. Benham, 21016

• Decision Date: 06 September 1966
• Docket Number: No. 21016,21016
• Citation: 160 Colo. 428,417 P.2d 777
• Parties: David GUSHURST, Administrator of the Estate of Francis Wilson Hennis, aka F. W. Hennis, Deceased, Plaintiff in Error, v. Wanda Billie BENHAM, Defendant in Error.
• Court: Colorado Supreme Court

Page 777

417 P.2d 777

160 Colo. 428

David GUSHURST, Administrator of the Estate of Francis Wilson Hennis, aka F. W. Hennis, Deceased Plaintiff in Error, v. Wanda Billie BENHAM, Defendant in Error.

No. 21016.

Supreme Court of Colorado, En Banc.

Sept. 6, 1966.

Perry E. Williams, Rocky Ford, Phelps, Fonda, Hays & Wills, Pueblo, for plaintiff in error.

Thulemeyer & Stewart, La Junta, for defendant in error.

McWILLIAMS, Justice.

Wanda Billie Benham, hereinafter referred to as the claimant, filed a claim against the estate of one Francis Wilson Hennis in the County Court of Otero County. Francis Wilson Hennis will hereinafter be referred to as Hennis, and his son will be referred to by full name. This claim stemmed from an automobile accident and claimant alleged that she suffered damages in the amount of $25,471.20 as a result of the negligence of Hennis. Trial to a jury culminated in a verdict in favor of the claimant in the amount of $15,000.

Upon appeal to the district court, the trial judge dismissed the attempted appeal, holding that the administrator of the estate was not an 'aggrieved person' within the meaning of C.R.S. '53, 37--6--10. Upon review we reversed this judgment and held that the administrator was an 'aggrieved person' to the end that he could appeal to the district court the adverse judgment which Hennis' estate had suffered in the county court. See Gushurst v. Benham, 151 Colo. 159, 376 P.2d 687.

Upon trial de novo of this matter in the district court, a jury returned a verdict in favor of the claimant and against the estate in the sum of $16,000. Judgment thereon was duly entered, and the administrator, in behalf of the estate, now seeks reversal of this judgment.

The administrator in his summary of argument states that the trial court erred in five particulars. We would pinpoint these alleged errors on the part of the trial court by further summarizing as follows: the trial court allegedly committed error (1) in refusing to hold as a matter of law that the Sole proximate cause of claimant's injuries was the gross negligence of her husband, Frank Benham; and (2) in refusing to allow two persons, who had been called as witnesses by the administrator of the estate, to testify as to separate conversations each had with Hennis about one and one-half hours to three hours after the accident in question. We shall consider these two areas of alleged error in that order.

This 'accident', or 'three accidents', depending on one's view of the total situation, involved five vehicles, all of which had been proceeding in a westerly direction on U.S. Highway No. 50 a few miles west of La Junta. There was a weed fire of considerable proportions just north of the highway to the end that there was much smoke blowing across the highway. The several witnesses were not in complete agreement as to just 'how much' smoke was present and to what precise degree this smoke obscured their vision, though the composite testimony in this regard did establish most definitely that blowing smoke of considerable density was no doubt a precipitating factor in the ensuing collisions.

As was mentioned, all of the vehicles involved were proceeding in a westerly direction, with the Hennis vehicle being the so-called 'lead' car. Hennis first drove 'into' the smoke and he soon 'stopped' his vehicle on the traveled portion of the highway. Hennis died some eight months after this accident, and hence was not present to testify upon either trial of this matter as to why he brought his car to a halt on the traveled portion of the highway, instead of pulling off onto the shoulder of the road.

Moments after Hennis stopped his vehicle, a dump truck driven by an employe of the City of La Junta rammed into the rear-end of the Hennis vehicle; and a minute or two later a vehicle driven by one Josie Palacio drove into the back of the dump truck. Thereafter the driver of the dump truck went back and by hand signal succeeded in stopping a Safeway truck, which was also proceeding in a westerly direction. Immediately thereafter a vehicle driven by Frank Benham, in which the claimant was riding as a passenger, crashed into the rear of the Safeway truck. It was on this concatenation of events that claimant later filed her claim against the estate of Hennis.

The administrator argues, in effect, that the trial court should have directed a verdict in behalf of the estate for the reason that claimant's injuries were Solely caused by her husband's negligence. In this connection the real issue, as we see it, is not whether Frank Benham was guilty of negligence which contributed to his wife's injuries, which he probably was, but whether we are prepared to hold that as a matter of law Hennis was Free from any and all negligence which was a proximate cause (though not the sole cause) of claimant's injuries. In our view Hennis' act of stopping on the traveled portion of the highway posed issues of fact, both as to negligence and proximate cause, which under the circumstances were properly to be determined by the jury; it did not pose issues of law to be resolved by the trial court.

There is no suggestion that the negligence, if such there was, of Frank Benham under the facts of this case could be imputed to this claimant. Hence, contributory negligence plays no part in this case. Assuming, then, for the sake of argument that Frank Benham was guilty of negligence which was a proximate cause of his wife's injuries, such finding would in nowise preclude the further finding that Hennis was also guilty of negligence which was also a contributing cause of her injuries.

As already mentioned, death prevented Hennis' appearance at trial, and hence we do not know why he stopped his vehicle on the traveled portion of the highway. But that he did stop his car on, and not off, the highway was definitely established. Though smoke was blowing across the highway, the degree to which visibility was obscured was at least somewhat in dispute. Some witnesses described the visibility as 'zero'. At the same time, however, another Safeway truck drove right on through the smoke, without incident, immediately after the dump truck had struck Hennis' vehicle, and before the Palacio vehicle drove into the dump truck. Whether this smoke, then, was an intermittent thing, or on the contrary was equally dense at all times is not entirely clear. All of which convinces us that there were controverted issues of fact as well as debatable inferences therefrom, which were properly to be resolved by the trier of the facts, and not by...