Jacobsen v. McGinness, 17776
| Decision Date | 20 May 1957 |
| Docket Number | No. 17776,17776 |
| Citation | 135 Colo. 357,311 P.2d 696 |
| Parties | Christian JACOBSEN, William Ogley and Harold L. Parr, Plaintiffs in Error, v. Elizabeth Jane McGINNESS and Chris Holthusen, Defendants in Error. |
| Court | Colorado Supreme Court |
Don B. Oliver, Julio Zamagni, Denver, for plaintiffs in error Christian Jacobsen and William Ogley.
Kreager & Sublett, Sterling, for plaintiff in error Harold L. Parr.
Lowell White, Walter A. Steele, Denver, for defendant in error Chris Holthusen.
Yegge, Bates, Hall & Shulenburg, Margaret R. Bates, Denver, for defendant in error Elizabeth Jane McGinness.
This case is before us on writ of error to review a judgment dismissing all claims of the parties involved in a three-car highway accident. We will refer to the parties by name. The record embraces some 275 folios (exclusive of the reporter's transcript) and is somewhat complicated due to the manner in which the several parties presented their respective claims and defenses.
It is undisputed that on August 10, 1953 at about 7:30 A.M. on a graveled two-lane, 31 foot wide road west of Stoneham, Colorado, an oil transport truck was traveling east on the south half of said road. Elizabeth J. McGinness in a Pontiac automobile was traveling to the rear of, and in the same direction as the truck, east along the south side of said road. The truck created dust and a slight wind was blowing from the south to the north. Miss McGinness testified that she was driving at approximately fifty miles per hour; that she saw and entered the 'dust cloud' created by the truck, but did not see the truck; she 'assumed' it was a diesel because of the smoke emitting from the top of the vehicle which was ahead of her on the road. Traveling west on the same road on the north half thereof was a Studebaker automobile operated by Jacobsen. Riding with him were William Ogley, Harold L. Parr, and two other men, all of whom were part of an oil drilling crew on their way to work. Chris Holthusen, driving his Packard automobile, was also proceeding west on the north half of the same road, a distance of some 300 feet behind the Jacobsen car. Immediately prior to the accident McGinness swerved her car to the north side of the road and ran headon into the Jacobsen automobile, pushing that vehicle to the east some eleven feet. At the same time Holthusen following the Jacobsen car, his view somewhat obscured by the dust created by the truck, observed that a collision had occurred; was unable to stop and ran into the rear of the Jacobsen automobile, his car skidding some eighty-nine feet before reaching the point of collision as indicated by skid marks on the road. The truck did not stop. The McGinness, Jacobsen and Holthusen cars were damaged as a result of the impacts, and McGinness, Ogley and Parr suffered personal injuries allegedly resuling in temporary and permanent disabilities. Holthusen and Jacobsen were also injured.
The pertinent pleadings are: A complaint filed by Holthusen against McGinness, Parr and Ogley demanding damages for alleged negligence, and for a declaratory judgment that Holthusen was not guilty of negligence, or of joint or concurrent negligence with McGinness, as the proximate cause of the injuries and damages sustained by Ogley, Parr and Jacobsen as a result of the accident. The complaint for a declaratory judgment was dismissed on the motion of Ogley and Parr. Jacobsen and Ogley then filed a suit alleging that McGinness or Holthusen, or both, were negligent, resulting in damage to Jacobsen and Ogley. McGinness and Holthusen answered this complaint and cross-claimed for damages. Parr intervened in this latter action and filed his complaint against McGinness and Holthusen, alleging that their negligence was the proximate cause of his injuries. Issue was joined with all parties pleading contributory negligence on the part of all others, together with 'unavoidable accident.' The Jacobsen, Ogley and Parr action was consolidated with the original Holthusen suit for the purposes of trial.
At the conclusion of all the evidence appropriate motions for directed verdicts were made and denied and the case submitted to the jury which returned a verdict as follows:
'We * * * find that no party can recover on his or her claims for damages.' Judgment of dismissal of all claims was thereupon entered. Jacobsen, Ogley and Parr filed motions for judgment notwithstanding the verdict, and for a new trial, which motions were denied. They are here on writ of error urging several grounds for reversal. Neither Holthusen nor McGinness, appearing here as defendants in error, have assigned cross-error.
Among the instructions given the jury was No. 15 on unavoidable accident, and No. 18, a curious pronouncement on the law of negligence, which reads as follows: 'You are instructed that if you find that none of the three drivers of the three cars involved in the collision were guilty of negligence, then, in that event, none of the parties is entitled to recover damages from anyone.'
Instruction No. 20 required the jury to find before a verdict could be returned in favor of any claimant that such claimant 'was not guilty of contributory negligence which contributed to the collision.'
The undisputed evidence that the McGinness car was on the wrong side of the road at the time it ran headon into the Jacobsen car was prima facie evidence of negligence on the part of McGinness. In her effort to explain how she got on the wrong side of the road Miss McGinness testified with reference to the truck ahead of her: ...
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