Kelley v. Holmes
| Decision Date | 25 February 1970 |
| Docket Number | No. 22835,22835 |
| Citation | 28 Colo.App. 79,470 P.2d 590 |
| Parties | Gary L. KELLEY, Plaintiff in Error, v. Amy L. HOLMES, Defendant in Error. . I |
| Court | Colorado Court of Appeals |
J. Bayard Young, Denver, Woodruff B. Cram, for plaintiff in error.
Coit & Walberg, Keith J. Vandenberge, 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.
Briefly stated, the facts in this case are as follows: Plaintiff in error, plaintiff below, was driving north on Pontiac Street in the City of Denver while defendant in error, defendant below, was proceeding east on 30th Avenue, when a collision occurred between the parties at the intersection of these two streets. According to the evidence produced at trial, the defendant started into the intersection without seeing the plaintiff. Upon noticing the plaintiff, she applied her brakes but not in sufficient time to stop her automobile before it struck the left front door of the vehicle driven by the plaintiff.
Plaintiff claimed defendant was negligent in the operation of her automobile. He brought suit to recover damages to his vehicle and for his personal injuries sustained as a result of the collision. Defendant filed a general denial and affirmatively answered that plaintiff was guilty of contributory negligence. Trial was to a jury which found for the defendant.
Plaintiff first contends that the trial court erred when it refused to direct a verdict for the plaintiff on the issue of liability. We find no merit in this contention.
It is plaintiff's theory of the case that since he had the right of way within the intersection, according to the Denver City ordinance, defendant was negligent as a matter of law. Even though the violation of a traffic ordinance constitutes negligence per se, standing alone, such a violation does not prove liability unless there is a causal connection shown between the violation and the resulting injury. Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167. It is for the trier of facts based on competent evidence to determine whether or not the violation was a proximate cause of the collision.
Plaintiff's second allegation of error pertains to the giving of Instruction No. 7 which quoted sections of a Denver City ordinance as follows:
'You are instructed that at the time and place of the accident of April 25, 1963, the following ordinances of the City and County of Denver were in full force and effect:
* * *
* * *
'514.1 Drive on Right Side.
'Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway.
'514.6 Limitations on Driving to Left of Center of Roadway.
Defendant's theory was that if plaintiff were in violation of the ordinance at the time of the collision, then he was guilty of contributory negligence and should be denied recovery.
If an ordinance were violated, and this violation caused or contributed to the happening of an accident, then the jury should be instructed on the ordinance. Anderson v. Munoz, 159 Colo. 229, 411 P.2d 4.
In this case there was sufficient evidence to support a finding that plaintiff did violate this ordinance by straying into the left side of the roadway while crossing the intersection. However, the evidence indicated that plaintiff was, at most, one foot over the centerline at the time of collision. Defendant's testimony was that if plaintiff had been two to four feet to the right (i.e., one to three feet to the right of the centerline), she could have stopped in time. Consequently, whether or not plaintiff was in violation of the ordinance at the time of the accident would be immaterial.
It was error to instruct the jury on this ordinance. Even if plaintiff violated this ordinance, no evidence was produced to show that this violation could have been a proximate cause of the accident. Houser v. Eckhardt, Colo., 450 P.2d 664.
Plaintiff's third contention is that the trial court erred in allowing Dr. William F. Stanek to testify as to plaintiff's physical condition over plaintiff's objection and claim of privilege. We find no merit in this contention, but will discuss it, since the same question will probably be raised on the second trial.
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U.S. v. Radetsky
...carriers for the furnishing of information about the patient. Under State law the patient could waive this privilege. Kelley v. Holmes, 28 Colo.App. 79, 470 P.2d 590, 592.15 The admonition by Government counsel to Dr. Griffin, a principal Government witness, was as follows (Supp. Vol. III, ......
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...to him by a physician may waive the physician-patient privilege. Mauro v. Tracy, 152 Colo. 106, 380 P.2d 570 (1963); Kelley v. Holmes, 28 Colo.App. 79, 470 P.2d 590 (1970). Cf. Bond v. District Court, 682 P.2d 33 (Colo. 1984) (court held that plaintiffs who injected mental condition into ca......
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Clark v. District Court, Second Judicial Dist., City and County of Denver
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Chapter 3 - § 3.4 • ISSUES RELATING TO LIABILITY AND DAMAGES IN LITIGATION OF MOTOR VEHICLE ACCIDENT CLAIMS
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Chapter 12 - § 12.4 • PHYSICIAN-PATIENT PRIVILEGE
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