Hilzer v. MacDonald, No. 22464

Docket NºNo. 22464
Citation454 P.2d 928, 169 Colo. 230
Case DateJune 02, 1969
CourtSupreme Court of Colorado

Page 928

454 P.2d 928
169 Colo. 230
Bertyl N. HILZER and Industrial Commission of Colorado,
Plaintiffs in Error,
v.
Dennis MacDONALD and Vail Village Inn, Ltd., Defendants and
Third-Party Plaintiffs in Error,
v.
DUFFY STORAGE AND MOVING COMPANY and Lloyd D. Countryman,
Third-Party Defendants in Error.
No. 22464.
Supreme Court of Colorado, En Banc.
June 2, 1969.
Rehearing Denied June 23, 1969.

[169 Colo. 232]

Page 929

Mattson & Mattson, Fred W. Mattson, Denver, for plaintiff in error, Bertyl N. Hilzer.

Duke W. Dunbar, Peter L. Lye, Harold Clark Thompson, Alious Rockett, Denver, for plaintiff, Industrial Commission.

Zarlengo, Mott & Carlin, John C. Mott, Raymond J. Connell, Denver, for defendants and third-party plaintiffs in error, Dennis MacDonald and Vail Village Inn, Ltd.

Yegge, Hall, Treece & Evans, Denver, for third-party defendants in error.

PRINGLE, Justice.

Bertyl N. Hilzer initiated this action against Dennis MacDonald and Vail Village Inn, Ltd. (hereinafter referred to as Vail Village Inn), to recover damages for a serious personal injury suffered when Hilzer, MacDonald and Lloyd D. Countryman tried to recover a tractor and trailer house from a ravine near Vail Pass. Hilzer and Countryman were both employed by Duffy Storage and Moving Company (hereinafter referred to as Duffy Storage). Prior to this action, Hilzer had been compensated under the terms of the Workmen's Compensation Act, and the Industrial Commission (hereinafter referred to as the Commission) joined as a plaintiff in this action to pursue its subrogation rights. As third-party plaintiffs, MacDonald and Vail Village Inn sought indemnification from Countryman and Duffy Storage.

During a trial to a jury, Hilzer relied in the alternative [169 Colo. 233] on theories of negligence and Res ipsa loquitur. After he rested his case, the trial court ruled as a matter of law that the doctrine of Res ipsa loquitur did not apply, and that Hilzer's evidence on his case in chief failed to make a Prima facie case of negligence or proximate cause insofar as MacDonald and Vail Village Inn were concerned. Judgment was entered dismissing the complaint and third-party complaint.

Hilzer contends here (a) that the court erred in its refusal to submit the matter to the jury on a theory of negligence; and (b) that the court erred in its refusal to apply the doctrine of Res ipsa loquitur. Among other points, Duffy Storage and Countryman contend that the dismissal of the third-party complaint should be affirmed on the grounds that the action was barred by the terms of the Workmen's Compensation Act.

I.

In this state, the issues of negligence and proximate cause are generally to be resolved by the trier of the facts. It is only in the clearest of cases, where the facts are undisputed and reasonable minds could draw but one inference from them, that the question of what constitutes reasonable care is ever one of law to be taken from the jury and decided by the court. E.g., Bates v. Stagg, 157 Colo. 456, 404 P.2d 530. With the foregoing principle in mind, we review the record to determine whether the trial court correctly ruled, as a matter of law, that Hilzer had adduced to evidence from which a jury might properly infer MacDonald's negligence.

The record reflects that, prior to the accident involved here, a tractor and trailer and a tractor pulling a trailer house slid from the Vail Pass highway into a nearby ravine. Using a Duffy Storage crane, Hilzer and Countryman removed the tractor

Page 930

and trailer on November 18, 1963. On the next day, they began the removal of the tractor and trailer house involved in the accident which injured Hilzer.

[169 Colo. 234] MacDonald, who operated a nearby service station, agreed to use his winch-equipped jeep to assist in the project. The Duffy Storage crane was positioned on the highway above the ravine, and its two cables were attached to the trailer house at each end. Since the trailer house was still coupled to the tractor, the parties planned to lift the back end of the trailer house and swing it around, to enable a person to uncouple the tractor and remove the safety chains. To keep the tractor from sliding farther downhill, the jeep's winch cable was attached to the tractor, which lay 50--70 feet down a 45 degree incline. In turn, the jeep was anchored to the crane...

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47 practice notes
  • Golden Val. Elec. Ass'n, Inc. v. City Elec. Service, Inc., No. 1580
    • United States
    • Supreme Court of Alaska (US)
    • 21 Enero 1974
    ...v. American Export Isbrandtsen Lines, Inc., 305 F.Supp. 432 (E.D.Wis.1969) (applying Wisconsin compensation act); Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969); American Radiator and Standard Sanitary Corp. v. Mark Eng'r. Co., 230 Md. 584, 187 A.2d 864 (Md.1963). Cf. Florida Power......
  • Port Authority of New York and New Jersey v. Honeywell Protective Services, Honeywell, Inc.
    • United States
    • New Jersey Superior Court – Appellate Division
    • 16 Octubre 1987
    ...135 F.Supp. 512 (E.D.Tenn.1955); Holly Sugar Corp. v. Union Supply Co., 194 Colo. 316, 572 P.2d 148 (1977); Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969); Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Central of Georgia Railway Company v. Lester, 118 Ga.App. 794......
  • A AND B CONST., INC. v. Atlas Roofing and Skylight Co., No. 93-0162L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 17 Octubre 1994
    ...Holly Sugar Corp. v. Union Supply Co., 194 Colo. 316, 572 P.2d 148 (1977) (reviewing both Colorado and Montana law); Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928, 931 (1969); Sargent Ind., Inc. v. Delta Air Lines, Inc., 251 Ga. 91, 303 S.E.2d 108 (1983); Bagwell v. South Louisiana Elec.......
  • Williams v. White Mountain Const. Co., Inc., No. 86SA100
    • United States
    • Colorado Supreme Court of Colorado
    • 1 Febrero 1988
    ...third-party claims of indemnification. Holly Sugar Corp. v. Union Supply Co., 194 Colo. 316, 572 P.2d 148 (1977); Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 5 In addition to federal courts, Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318......
  • Request a trial to view additional results
47 cases
  • Golden Val. Elec. Ass'n, Inc. v. City Elec. Service, Inc., No. 1580
    • United States
    • Supreme Court of Alaska (US)
    • 21 Enero 1974
    ...v. American Export Isbrandtsen Lines, Inc., 305 F.Supp. 432 (E.D.Wis.1969) (applying Wisconsin compensation act); Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969); American Radiator and Standard Sanitary Corp. v. Mark Eng'r. Co., 230 Md. 584, 187 A.2d 864 (Md.1963). Cf. Florida Power......
  • Port Authority of New York and New Jersey v. Honeywell Protective Services, Honeywell, Inc.
    • United States
    • New Jersey Superior Court – Appellate Division
    • 16 Octubre 1987
    ...135 F.Supp. 512 (E.D.Tenn.1955); Holly Sugar Corp. v. Union Supply Co., 194 Colo. 316, 572 P.2d 148 (1977); Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969); Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Central of Georgia Railway Company v. Lester, 118 Ga.App. 794......
  • A AND B CONST., INC. v. Atlas Roofing and Skylight Co., No. 93-0162L.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 17 Octubre 1994
    ...Holly Sugar Corp. v. Union Supply Co., 194 Colo. 316, 572 P.2d 148 (1977) (reviewing both Colorado and Montana law); Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928, 931 (1969); Sargent Ind., Inc. v. Delta Air Lines, Inc., 251 Ga. 91, 303 S.E.2d 108 (1983); Bagwell v. South Louisiana Elec.......
  • Williams v. White Mountain Const. Co., Inc., No. 86SA100
    • United States
    • Colorado Supreme Court of Colorado
    • 1 Febrero 1988
    ...third-party claims of indemnification. Holly Sugar Corp. v. Union Supply Co., 194 Colo. 316, 572 P.2d 148 (1977); Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 5 In addition to federal courts, Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318......
  • Request a trial to view additional results

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