Hughes v. Worth, 21507

• Decision Date: 01 May 1967
• Docket Number: No. 21507,21507
• Parties: Bonita L. HUGHES, Plaintiff in Error, v. Wilbur E. WORTH and Rosaile Worth, Defendants in Error.
• Court: Colorado Supreme Court

Page 327

427 P.2d 327

162 Colo. 429

Bonita L. HUGHES, Plaintiff in Error, v. Wilbur E. WORTH and Rosaile Worth, Defendants in Error.

No. 21507.

Supreme Court of Colorado, In Department.

May 1, 1967.

Rehearing Denied May 29, 1967.

B. F. Napheys, Jr., B. F. Napheys, III, Denver, for plaintiff in error.

Robert W. Hansen, Denver, for defendants in error.

PRINGLE, Justice.

Plaintiff in error, Bonita L. Hughes, brought an action against defendants in error, Wilbur and Rosalie Worth, for damages for injuries allegedly sustained in a rear-end automobile collision which occurred on October 5, 1962. The parties will be referred to as they appeared in the trial court, or by name.

The plaintiff's car was stopped waiting for a red light at the intersection of Speer Boulevard and Curtis Street in Denver, Colorado, when the collision occurred. The defendant drove up behind the plaintiff and stopped. The defendant's car then surged forward and rammed into the back of the plaintiff's car. The plaintiff was not aware of the defendant's presence until after the impact.

The plaintiff's theory of the case was Res ipsa liquitur and the defendant set up the defense of unavoidable accident. The defendant contended that after he had stopped, he suddenly lost control of his right leg by reason of an unexpected embolism, and that as a result his foot slipped off the brake pedal and the collision ensued. The evidence showed that the defendant had no history of prior difficulty with his leg and that as a result of the embolism his leg had to be amputated at midthigh shortly after the accident. There was some evidence on behalf of the plaintiff that the defendant's car was proceeding erratically before he stopped, but what the nature of the erratic driving was does not appear in the record. Defendant's testimony was that he felt no pain or change in his physical condition until he suddenly lost control of his leg after he had stopped his car.

At the close of the trial, the trial court, sitting as the trier of fact without a jury, found that the accident was 'unavoidable.' The trial court then entered judgment of dismissal.

Various errors are alleged by the parties on appeal. Plaintiff alleges that there was no evidence to support the court's judgment in favor of the defendants, and that the trial court erred in allowing an expert medical witness to answer certain hypothetical questions. Defendant alleges, as cross-error, that the trial court erroneously refused to award costs to him under the provisions of R.C.P.Colo. 68.

Plaintiff contends that she proved a clear case for the application of the doctrine of Res ipsa loquitur, and that the defendant then failed to present sufficient evidence of no-negligence to support the judgment in this case. We have said before that a rear-end automobile collision which happens without any negligence of the plaintiff whatsoever and in such a manner that plaintiff could not reasonably be expected to account for the cause of the accident properly gives rise to the application of the doctrine of Res ipsa loquitur. Iacino v. Brown, 121 Colo. 450, 217 P.2d 266. We have also said: 'This being so, it devolved upon the defendant to supply evidence explaining the accident, * * * in a way that would overcome the presumption of negligence. The question whether the evidence so supplied would be sufficiently credible and convincing to destroy the adverse presumption was one for the jury.' (Emphasis supplied.) Denver Tramway Corp. v. Kuttner, 95 Colo. 312, 35 P.2d 852.

The plaintiff asserts that 'unavoidable accident' is not a defense to a negligence action in this state because of our pronouncement in Lewis v. Buckskin Joe's, Inc., 156 Colo. 46, 396 P.2d 933, and therefore the court's finding that the accident was 'unavoidable' had no effect on the presumption of defendant's negligence which the evidence on her behalf had raised. We do not agree. Lewis was decided on the theory that an 'unavoidable' accident is one which occurs with 'no-negligence' on the part of either of the contending parties. That being the case, it was held to be error to unfairly weigh the instructions to the jury in favor of the defendant by twice, in effect, giving 'no-negligence' instructions, or by indicating to a jury that 'no-negligence' and 'unavoidable accident' are different defenses by permitting both to be presented as two separate and distinct formal defenses. The trial judge, sitting as the trier of the fact, found that defendant's evidence satisfied him that the accident was unavoidable, which in effect was a finding that it happened without negligence on anyone's part. Such a finding properly results in a judgment for defendant, even in a Res ipsa loquitur case.

The plaintiff further suggests that the trial court erroneously allowed an expert medical witness, Dr. Lee, to answer hypothetical questions, and that without this allegedly improper evidence, there was insufficient competent evidence to rebut the presumption of negligence arising from the application of the doctrine of Res ipsa loquitur. The doctor's testimony, by stipulation, was...