Hansen v. Dillon

• Decision Date: 08 March 1965
• Docket Number: No. 20730,20730
• Citation: 400 P.2d 201,156 Colo. 396
• Parties: Adolph HANSEN, Plaintiff in Error, v. Donald Franklin DILLON, Defendant in Error.
• Court: Colorado Supreme Court

Page 201

400 P.2d 201

156 Colo. 396

Adolph HANSEN, Plaintiff in Error, v. Donald Franklin DILLON, Defendant in Error.

No. 20730.

Supreme Court of Colorado, In Department.

March 8, 1965.

Rehearing Denied April 5, 1965.

Oakley Wade, Las Animas, for plaintiff in error.

Fred E. Sisk, Las Animas, McComb, Zarlengo & Mott, Denver, for defendant in error.

McWILLIAMS, Justice.

This litigation stems from a collision between two pike-up trucks which occurred shortly before 6 o'clock a. m. on June 9, 1961 on a graveled county road some 6 miles south of the town of Las Animas. This particular road runs in an east-west direction and on this occasion Hansen, who was driving in an easterly direction, struck the rear-end of a pick-up truck being driven by one Dillon with such force that the Hansen truck was virtually demolished. Hansen himself sustained severe personal injuries in the accident.

Based on this unfortunate occurrence, Hansen brought an action against Dillon, charging the latter with negligence in the operation of his vehicle and prayed for monetary damages in the amount of $41,515. By answer Dillon denied negligence, alleged contributory negligence on the part of Hansen and counterclaimed for the damages to his vehicle. Trial by jury resulted in a verdict in favor of Dillon on Hansen's complaint and one in favor of Hansen on Dillon's counterclaim. By writ of error Hansen now seeks reversal of the judgment.

In the summary of argument Hansen contends that the trial court erred in the following particulars:

1. instructing the jury on contributory negligence;

2. instruction the jury as to the applicable statutes relating to careless driving and speed limit, C.R.S. '53, 13-4-32 and 33;

3. refusing to instruct the jury that 'the reaction time of a normal individual is three-fourths of a second'; and in

4. striking the affidavit of counsel for Hansen wherein said counsel, based on his conversations with certain of the jurors deposed and declared that these jurors 'knowingly misled the plaintiff to accept them as fair and impartial when in reality their minds were made up * * *.'

In our considered view the trial court committed no error in its several rulings, and hence the judgment must be affirmed.

Hansen's basic contention in this Court is that it was error to instruct the jury on contributory negligence for the reason that there was no evidence of any negligence whatsoever on his part. Let us look briefly at the evidence tending to show any driving misconduct by Hansen.

As above noted, Hansen was driving his pick-up truck in an easterly direction on a loosely graveled county road south of Las Animas. At the time of the accident he was enroute from his farm to Las Animas to attend a 6 o'clock a. m. meeting, for which he was 'running late.' Dillon had parked his pick-up truck in a field south of this same county road about 4 o'clock on this same morning, Dillon having driven to this particular field to 'set' his irrigation water.

Hansen testified that he was very familiar with this stretch of road and that when he was about one-half mile west of the place where the accident occurred he saw the Dillon vehicle in the parked position as above described. He further testified that he was fully aware of the fact that Dillon frequently parked his pick-up in this particular spot when he was setting his irrigation water. Though there was unobstructed vision, Hansen did not thereafter see the Dillon vehicle until he suddenly noticed Dillon's pick-up only 10 feet in front of him. Hansen testified that he then applied his brakes and cut to the left but that the right front of his vehicle came in rather violent contact with the right rear portion of the Dillon pick-up.

Dillon testified that he never did see or hear the Hansen vehicle until the actual collision. He said that just before the accident he had completed setting his irrigation water and was accordingly preparing to leave the area. Before moving his vehicle, he looked 'both ways' and seeing no approaching vehicle, he backed slowly out of the field onto the highway proper. He stated that he had completed his 'backing up' and was about to proceed forward in an easterly direction when he was struck from behind by Hansen.

An undersheriff from Bent County who investigated the accident testified that the point of impact was about four and one-half feet north of the south edge of the roadway proper. Without objection he further testified that the speed limit on this particular road was 60 miles per hour, that a 'safe' speed considering the actual road conditions was 35-40 miles per hour, and that based on his inspection of the physical...