Healy v. Hewitt

• Decision Date: 06 July 1937
• Docket Number: 14041.
• Parties: HEALY v. HEWITT.
• Court: Colorado Supreme Court

71 P.2d 63

101 Colo. 92

HEALY v. HEWITT.

No. 14041.

Supreme Court of Colorado, En Banc.

July 6, 1937

Error to District Court, Arapahoe County; Samuel W. Johnson, Judge.

Action by Arthur K. Hewitt against John F. Healy, Jr. To review a judgment for plaintiff, defendant brings error.

Reversed and remanded.

HILLIARD J., and BURKE, C.J., dissenting.

William F. McGlone and Joseph A. Craven, both of Denver, for plaintiff in error.

Earl J Hower and Glenn L. Daly, both of Denver, for defendant in error.

HOLLAND Justice.

Hewitt defendant in error, as plaintiff in the trial court, obtained a judgment upon a jury's verdict for actual and exemplary damages for serious personal injuries which he alleged were caused by the negligence of Healy, plaintiff in error and defendant in the trial court. The complaint alleged, and the jury by a special verdict found, that Healy was guilty of negligence consisting of a wanton or willful disregard of the rights, feelings, and safety of others and of Hewitt, the plaintiff. The verdict was for $12,000 actual, and $3,000 exemplary, damages. Body execution was ordered on the special verdict. Healy prosecutes this writ of error and will be mentioned herein by name or as defendant while reference will be made to defendant in error as plaintiff.

The accident occurred about 1:30 a. m., February 10, 1935, on the highway between Denver and Littleton just south of the Denver city limits. A very foggy condition prevailed Before and at the time of the accident. Plaintiff, accompanied by one lady guest, had driven out upon the highway from the Tia Juana Night Club a short distance to the north of the scene of the accident. Where his windshield wiper had been working when he went into the night club some ten or fifteen minutes Before, particles of ice or frost had accumulated on the windshield. The density of the fog limited his visibility to some 15 or 20 feet ahead. He stopped his automobile without setting the brakes, had extended his left foot and leg from the left door of the car to the running board, and was attempting to wipe the windshield when his car and he were struck by Healy's automobile which approached from the north and behind plaintiff's car. There is some conflict in the evidence as to where plaintiff had stopped his car with reference to its being on or off the paved portion of the highway at that point, but, regardless of that fact, his car was forced forward some 25 or 30 feet, struck the post of a mailbox, and came to a stop after breaking off the post. Defendant's car traveled forward approximately 90 feet and, after turning over, came to a stop on the east side of the highway. On the trial, plaintiff attempted to support his allegations of negligence by endeavoring to show that defendant was intoxicated and was driving at an excessive rate of speed under the conditions.

Defendant, by his answer, denied plaintiff's allegation of negligence and alleged contributory negligence on the part of plaintiff due to the manner in which he had stopped his automobile and its position upon the highway, contrary to the statutes governing such matters, and he offered much testimony in support of this answer. He here presents numerous assignments of error and contends: That by certain instructions he was denied the full effect of his defense of contributory negligence; that there was a failure to prove lack of due care upon his part; that there was insufficient evidence of intoxication upon which to instruct the jury unless it was instructed that there was a causal and negligent relation between the alleged intoxication and the accident; that there is no evidence of the kind and degree necessary to justify or support the special verdict; and that error was committed in the giving of certain instructions and the refusal of others tendered.

Events transpiring prior to the accident, aside from the question of intoxication, as gathered from the record, briefly are: That at about 1 o'clock at night, Healy, accompanied by one Weckbaugh, left the Cosmopolitan Hotel in Denver to drive to Blakeland, a resort south of Littleton; that at the time there was a rather heavy fog which varied in density in different localities; that, as Healy testified, in driving in the city of Denver his speed was from 5 to 25 miles per hour; that as he left the city limits his visibility became reduced to about 200 feet; that on meeting another automobile the lights from the approaching car almost restricted visibility to a minimum. All this was generally corroborated by Mr. Weckbaugh. The plaintiff testified that he left the Tia Juana Night Club, which is located a short distance north of the scene of the accident, and drove out onto the highway; that his visibility was about 15 to 20 feet ahead with the bright lights on; that he could not see any of the surrounding trees or objects; and that frost had accumulated on his windshield at the place where his windshield wiper operated. His guest testified that the windshield on her side of the car was not obstructed; that the fog was of the same density from the night club to the scene of the accident where it was very heavy. Others testified similarly as to the foggy condition at the place of the accident. Some witnesses said that in approaching the place of the accident they found streaks of fog along the road and that it seemed to be lighter between the place of the accident and Denver, and that the fog was more dense in low places. Plaintiff further testified that he drove his automobile entirely off the pavement onto the shoulder of the highway, where he stopped. His guest, Miss Lawson, stated that she looked out of the car window and saw the gravelled shoulder; neither she nor plaintiff at the time of stopping, according to the evidence, looked to the north, the direction from which Healy's car approached. Plaintiff testified he saw a car approaching from the south; further that he was familiar with the highway at that point, having traveled it nearly every day. From the record it appears that plaintiff's car was six feet and one inch wide. There is sharp conflict as to just where Healy met a car approaching from the south; that is, whether it was within a few feet of plaintiff's parked car or considerably further to the north. He testified that it was only 15 or 20 feet from plaintiff's car and that the lights from the approaching car at the time he met it caused him to see an object immediately in front of him which turned out to be plaintiff's car. Miss Sullivan, who was riding in the approaching car, testified that she saw the lights of Healy's automobile as their car approached the place of the accident and that his car was traveling in a usual sort of way; that she saw no lights from plaintiff's car. Healy testified that when he first saw the parked car the right wheels of his own car were a foot to sixteen inches on the pavement from the shoulder; that he immediately cut his car over to the left and applied the brakes. Weckbaugh, who was with Healy, testified that he was sure Healy's car was on the pavement and following the road. Mr. Juhan, a passenger in the approaching car, testified that he could see the tracks of Healy's car leading to the point of the accident; that the east track was from 18 inches to 2 feet from the center line of the pavement. Mr. Bahns, a witness for plaintiff, testified that from the car tracks he saw the fender of plaintiff's car would have been over on the pavement, and that he did not see any lights on plaintiff's car.

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