Iacino v. Brown, 16256

• Decision Date: 20 March 1950
• Docket Number: No. 16256,16256
• Citation: 217 P.2d 266,121 Colo. 450
• Parties: IACINO v. BROWN.
• Court: Colorado Supreme Court

Page 266

217 P.2d 266

121 Colo. 450

IACINO v. BROWN.

No. 16256

Supreme Court of Colorado, in Department.

March 20, 1950.

Charles R. Enos, Denver, Bernice M. Buchler, Denver, for plaintiff in error.

Eugene Madden, Jr., Denver, Franklin A. Thayer, Denver, for defendant in error.

HOLLAND, Justice.

On November 17, 1947, defendant in error Brown, as plaintiff, filed a complaint in the district court against defendant Iacino for damages, alleging that defendant carelessly and negligently drove his automobile into the rear of an automobile owned by plaintiff while plaintiff was occupying the car then properly parked on the right side of the street, and as a result, plaintiff was injured and his automobile damaged.

Defendant answered, alleging that the accident was unavoidable, was not caused by any negligence on his part, but was due to a mechanical defect in his car, of which he had no knowledge, and which made it impossible for him to control his automobile and caused it to strike plaintiff's car; and further that he could not have discovered or corrected the defect by the exercise of reasonable care.

Trial was to a jury which returned a verdict in favor of the plaintiff, and assessed his damage at $2,500. Motion for new trial was denied and judgment entered on the verdict.

There is little dispute as to the pertinent facts in the case. Defendant's answer is more or less in the nature of a confession and avoidance, other than a denial of any negligence on his part. On the evening of May 27, 1947, plaintiff had parked his practically new Plymouth automobile in front of 4575 Beach Court and was seated in the car listening to a radio program, when defendant's car struck the back of his auto and drove it into the rear of a parked vehicle ahead, causing plaintiff personal injuries, which, together with the damage to his automobile, prevented him from fully pursuing his occupation as a traveling salesman. Plaintiff was unaware of the approach of defendant until the rear-end collision.

Defendant testified that he was driving a 1941 Chevrolet convertible club coupe which he had owned for about six months; that it was in good mechanical condition; that he had taken good care of it; that he was not aware of any defect in the steering or spring mechanism of the automobile; that on the evening of the accident, a family friend was at his home who desired to make a call on Beach Court, a few blocks away and he took the friend in his automobile to the place he desired to go and let him out of the car; that just as he, the plaintiff, started his vehicle into second gear 'the mechanical end of my car went haywire. That is when it happened. I was still in second gear just crossing the intersection.' It appears that plaintiff's car was parked at the curb; that defendant was driving his auto down the middle of the street; that when within a few feet of the rear end of plaintiff's car the right front end of his car suddenly went down and went right into Mr. Brown's car; that he was not able to steer his automobile after that happened; that he was 'thrown against the dash-board'; that he had two ribs broken; that he 'wasn't knocked unconscious, but * * * was dazed'; that when he crawled out of his car he saw a spring about six or eight inches long and five or six inches in circumference lying right at the curb, together with a number of other mechanical parts, bolts, nuts, and things of that sort; that he was driving approximately fifteen to twenty miles an hour just before the accident. There is a discrepancy in the testimony of defendant relative to where he was when the mechanism of his car broke. At one place, he said he was crossing the intersection and at another place, that he had just left from in front of the house where a friend had gotten out of the automobile. In either event, it was some distance from where plaintiff's automobile was parked.

Plaintiff testified that he took defendant into a neighbor's house, where there was a 'phone and telephoned to defendant's father; that at that time, defendant said it was all his fault and he would pay the damage.

For reversal, defendant specifies twenty points which may be summarized as follows: Refusal of the court to grant nonsuit or directed verdict on the opening statement of plaintiff's counsel; admitting the testimony of plaintiff as to the statements made by defendant that the accident was his fault and that he would take care of the...