Landis v. McGowan

• Decision Date: 07 January 1946
• Docket Number: 15391.
• Citation: 165 P.2d 180,114 Colo. 355
• Parties: LANDIS et al. v. McGOWAN et al.
• Court: Colorado Supreme Court

165 P.2d 180

114 Colo. 355

LANDIS et al. v. McGOWAN et al.

No. 15391.

Supreme Court of Colorado, en Banc.

January 7, 1946

Error to District Court, El Paso County; John M. Meikle, Judge.

Action for damages for personal injuries resulting from an automobile accident, by Lula P. McGowan and Irene Alloway against the Pikes Peak Automobile Company, a corporation, and Norma I. Landis and Ray Landis, doing business as the Grand View Tours Company. James Finney, doing business as the Finney Sight-seeing Company, was brought into the action by a third-party complaint. The Pikes Peak Automobile Company filed a cross-claim against Norma I. Landis and Ray Landis and James Finney. Norma I. Landis and Ray Landis filed a cross-claim against the Pikes Peak Automobile Company. To review the judgment, Norma I. Landis and Ray Landis, bring error.

Affirmed.

Bannister Bannister & Weller, of Denver, for plaintiffs in error.

Thomas I. Purcell, of Colorado Springs, and Philip Hornbein and Theodore Epstein, both of Denver, for defendants in error Lula P. McGowan and Irene Alloway.

Strachan & Horn and J. A. Carruthers, all of Colorado Springs, for defendant in error Pikes Peak Automobile Co.

Wood Shuteran, Robinson & Harrington, of Denver, for defendant in error James Finney.

ALTER Justice.

This is an action to recover damages for personal injuries resulting from an automobile accident.

Norma I. Landis and Ray Landis, doing business as Grand View Tours Co., are plaintiffs in error, and we will hereinafter refer to them as the Landises. Lula P. McGowan, Irene Alloway, The Pikes Peak Automobile Company, a corporation, and James Finney, doing business as Finney Sightseeing Company, are defendants in error and will be designated as McGowan Alloway, Pikes Peak Company, and Finney, respectively. McGowan and Alloway filed complaints in identical language against Pikes Peak Company and the Landises, alleging injuries sustained by them while passengers being transported by the Pikes Peak Company and the Landises from Colorado Springs to the summit of Pikes Peak. In each complaint there is an allegation that the automobile in which plaintiff was a passenger was operated in a negligent and reckless manner, and as a consequence thereof left the highway and tilted over, inflicting serious injuries, to her damage in the sum of $15,000. The actions were consolidated for trial without objection.

The Pikes Peak Company, in its answer, denied all negligence on its part, and in its several defenses alleged that the injuries of which plaintiffs complain were the sole and proximate result of the negligence of one James Finney, who was brought into the action by a third party complaint. In a cross claim against the Landises and Finney it alleged that the injuries of which plaintiffs complaint were the sole and proximate result of the negligence of the Landises and Finney, who are liable to it in event plaintiffs are successful in recovering judgment against the Pikes Peak Company.

The Landises, in their answer, for a first defense denied all negligence; for a second defense alleged that the injuries of which plaintiffs complain were the sole and proximate result of negligence on the part of Finney. For a cross claim against the Pikes Peak Company, they alleged that the automobile involved was operated solely by the Pikes Peak Company as bailee, and that the Pikes Peak Company is liable to cross complainants for any judgment obtained by plaintiffs against them.

Finney, as third party defendant, denied all negligence.

At the conclusion of the trial, separate judgments were entered in favor of McGowan and Alloway, respectively, against the Pikes Peak Company and the Landises in the amounts of $2500 and $850, respectively, with the provision that the Pikes Peak Company was awarded a judgment against the Landises in the amount of the McGowan and Alloway judgments; provided also that the satisfaction of the McGowan and Alloway judgments against the Landises would constitute a satisfaction of the Pikes Peak Company judgment against the Landises.

The court submitted the case to the jury on instructions and written interrogatories, to which written answers were required. The pertinent interrogatories and answers thereto are:

'Interrogatory No. 1. Was Paul A. Zook, the driver of the car in which plaintiffs were riding, guilty of negligence which was the sole proximate cause of the injuries and damages complained of? Answer: Yes.

'Interrogatory No. 2. Was Jim Lyles, the driver of the James Finney car, guilty of negligence which was the sole proximate cause of the injuries and damages complained of? Answer: No.

'Interrogatory No. 3. Were Zook and Lyles both guilty of negligence which negligence, jointly or concurrently, was the proximate cause of the injuries and damages complained of? Answer: No.

'Interrogatory No. 4. Were the injuries and damages complained of by the plaintiffs the result of an 'unavoidable accident' as that term is defined in these instructions? Answer: No.'

The trial consumed seven days, and the record is voluminous.

The Landises have filed twenty-six specification of points which they urge for our consideration as grounds for reversal. For the purpose of this opinion these will be consolidated into three groups: First, those relating to negligence and proximate cause; second, instructions and interrogatories; third, those requiring a determination as to who was the employer of the driver of the Landises' car at the time of the accident. The case is remarkable in that neither the Landises, Pikes Peak Company, nor Finney question the amounts of the judgments as excessive. As we understand the contention of the Landises here, it is that if plaintiffs are entitled to judgments, the Pikes Peak Company should be held primarily liable, or, in any event, liable as a joint tortfeasor.

The evidence is that plaintiffs and a large group of other persons were in Denver in attendance upon some convention, many of whom desired to go to the summit of Pikes Peak by automobile. Some representative of this convention group was contacted by a representative of the Pikes Peak Company, then engaged in the tourist business in the Pikes Peak region, for the purpose of arranging this automobile trip. The Pikes Peak Company was unable to determine whether it had sufficient automobiles to accommodate the number of people desiring to make this trip, and its traffic manager contacted the Landises, who also were engaged in the tourist business, for the purpose of ascertaining how many automobiles they could provide for the accommodation of this convention group in event the need therefor arose. The Landises did, as a matter of fact, furnish three automobiles, only two of which, however, were used in the transportation of the convention group. On the early morning of July 13, 1941, a representative of the Pikes Peak Company was on the special train in which the convention group was traveling from Denver to Colorado Springs and sold tickets to those desiring them. Each ticket entitled the holder to a trip from the railroad depot in Colorado Springs to the summit of Pikes Peak and return. When the train arrived at Colorado Springs the automobiles of the Pikes Peak Company and the three automobiles of the Landises were there for use in making the contemplated trip. One of the Landises' cars, being the one involved in the accident, was driven by one Zook, an experienced driver and one who was accustomed to making the trip to the summit of Pikes Peak. Plaintiffs, together with their husbands and four other persons, were passengers in the Landises' automobile. When all those who had purchased tickets had been seated in the automobiles provided by the Pikes Peak Company and the Landises, the trip began.

In leaving Colorado Springs, and while on the road to the foot of the highway leading to the summit of Pikes Peak, some of the passengers in the Landises' car complained to the driver about the manner in which it was being driven, stating that the speed was too great. While on the highway leading to the summit of Pikes Peak and on a part thereof practically straight, with an unobstructed view, the driver of the Landises' car attempted to pass an automobile belonging to Finney and driven by Lyles, and in so doing caused the left wheels of his car to run over on the soft shoulders of the highway. As a result thereof, the car tilted to the left at an angle of about forty-five degree and hung in a perilous position on the edge of the highway. Some of the passengers in the Landises' automobile succeeded in getting out of it on the right hand side and held onto the machine, thus preventing it from going down the mountainside, until the other passengers had alighted therefrom. When the wheels of the Landises' automobile sank into the soft dirt of the shoulders of the highway, plaintiffs were thrown to the left side thereof in such a manner that either at this time or while being assisted from the car they received the injuries of which complaint is made. According to the testimony of some of the witnesses, Zook, the driver of the Landises' automobile, was warned not to attempt to pass the Finney automobile at that point, notwithstanding which he attempted to do so, with the results noted. Some of the witnesses testified that at the time of the attempt to pass the Finney automobile, the Landises' car was being driven too fast, and that they had shoulted to Zook, asking him not to attempt to pass at that point.

Zook testified that he saw the Finney automobile at the side of the highway either stopped or moving slowly, that he sounded his horn, and, in attempting to pass, was crowded off the highway, veering to the left in such a manner that he was obliged...