Herness v. Goodrich, s. 70--654
| Decision Date | 30 March 1971 |
| Docket Number | Nos. 70--654,24343,s. 70--654 |
| Citation | 483 P.2d 412,29 Colo.App. 322 |
| Parties | Eric S. HERNESS, a minor, by his next friend, Eric Cleaver Herness, Plaintiff in Error, v. Cecil F. GOODRICH, Defendant in Error. . II |
| Court | Colorado Court of Appeals |
Martin & Riggs, Marshall T. Riggs, Boulder, for plaintiff in error.
Burnett, Watson, Horan & Hilgers, Edward E. Carelli, Denver, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an action to recover damages for personal injuries sustained by Eric S. Herness, a minor, in an automobile-pedestrian collision. Trial was to a jury. After completion of the plaintiff's case, the trial judge granted defendant's motion to dismiss on the grounds that the plaintiff had failed to sustain his burden of presenting a prima facie case of negligence. Judgment was entered in favor of the defendant. The plaintiff appeals this adverse ruling.
The evidence shows that on May 18, 1965, at approximately 2:30 p.m., defendant was driving south on Knox Court between 13th and 14th Avenues in Denver, Colorado. The area consists of single and multiple unit dwellings. Knox Court is a two-way through street, 36 feet in width, one lane for southbound traffic and one lane for northbound traffic. Automobiles were parked intermittently on both sides of the street. The weather and road conditions were good. The defendant was traveling close to 30 m.p.h. which was the posted limit. He was approximately 115 feet north of the ultimate point of impact when he observed two small boys running toward the street on a walk leading from a building which was located approximately 40 feet west of the west curb of Knox Court. One of the two boys turned and proceeded north on the sidewalk paralleling the west side of the street. The other boy, the plaintiff who was not yet 4 years old, continued to run in a southeasterly direction toward the street when the defendant lost sight of him behind a parked car. The defendant took his foot off the accelerator and moved it to the brake; however, he did not apply the brake, nor did he sound his horn. When the defendant's automobile was at a point approximately even with the parked car behind which the boy had disappeared, the boy ran out in front of defendant's vehicle. Defendant immediately applied his brakes and swerved to the left, but was not able to avert a collision.
The plaintiff contends that these facts established a prima facie case of negligence, whereas the defendant claims they did not.
There have been three recent cases in Colorado dealing with similar problems.
In Pence v. Chaudet, 163 Colo. 104, 428 P.2d 705, the Supreme Court held that the trial court was correct in directing a verdict for the defendant on the ground that there was insufficient evidence to establish negligence on the part of the defendant. In that case, a 6-year-old boy was playing near a motor court when he suddenly and without notice dashed into the street running directly into the path of defendant's car. The defendant immediately applied his brakes; however, there was neither the time nor the opportunity to stop the car or otherwise avoid striking the boy.
In McSpadden v. Minick, 159 Colo. 556, 413 P.2d 463, the Supreme Court upheld the trial court's dismissal of plaintiff's claim on the grounds that the plaintiff failed to establish defendant's negligence. In that case, defendant hit a 4 1/2-year-old boy as the child was running across a highway at night. The boy was about 100 feet from him when first seen by defendant. The defendant immediately applied his brakes and by the time he struck the boy, the car was almost at a stop.
In Benallo v. Bare, 162 Colo. 22, 427 P.2d 323, a 6-year-old boy was struck by defendant's car as he walked across a residential street. As in the case at hand, the accident took place in mid-afternoon on a clear day. The defendant there was also driving at 25 to 30 m.p.h. in his proper lane of travel. The defendant in that case observed the plaintiff take mail from a mail box and proceed to cross the street 75 feet in front of him. That defendant testified that he too took his foot off the accelerator, but did not apply his brakes. Defendant did not observe the plaintiff for a brief moment while the defendant waved at the driver of the mail truck passing in the opposite direction. By the time the defendant's attention was directed back to the plaintiff, it was too late to stop in time. In that case, the Supreme Court upheld the trial court in directing a verdict in favor of the plaintiff as to the defendant's negligence.
Pence v. Chaudet and McSpadden v. Minick, Supra, are clearly distinguishable...
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People v. Ferrell
...that the expert's testimony was based upon the opinion of another expert. Such testimony is not admissible. Herness v. Goodrich, 29 Colo.App. 322, 483 P.2d 412 (1971). See also People v. McCormick, 181 Colo. 162, 508 P.2d 1270 (1973). Although the district attorney's question was inartfully......