Leonard v. Bauer
| Decision Date | 10 April 1944 |
| Docket Number | 15128. |
| Citation | 149 P.2d 376,112 Colo. 247 |
| Parties | LEONARD et al. v. BAUER et al. |
| Court | Colorado Supreme Court |
Rehearing Denied June 5, 1944.
Error to District Court, City and County of Denver; John R. Clark Judge.
Action by George Bauer and Lydia Bauer against Glen Leonard and another for death of Reuben Bauer. Judgment for plaintiff and defendant brings error.
Affirmed.
Where delivery truck traveling on left side of road collided with hay truck which was approximately in middle of road, the hay truck driver might have remained on righthand side of road or having elected to drive down middle of highway he might have continued to do so without attempting to return to his proper position or he might have stopped truck or slackened its speed and which course an ordinarily prudent man would have adopted and the effect of it if adopted were questions for jury, in action for death of occupant of delivery truck.
Lowell White and William K. Ris, both of Denver for plaintiffs in error.
Charles Rosenbaum and Solomon Girsh, both of Denver, for defendants in error.
The parties to this litigation are here in reverse order of their appearance in the district court. For convenience, we refer to them as plaintiffs and defendants, or by name. Plaintiffs recovered a judgment in the amount of $2,750 for the death of their minor son, alleged to have been caused, or contributed to by the negligence of defendants, to reverse which the latter prosecute a writ of error.
Fred Reffel owned a Chevrolet truck that Ted Reffel, his brother, agent and employee, was driving at the time of the accident. Deceased, Reuben Bauer, aged 16, a brother-in-law of Fred Reffel, also his employee, was riding in the truck at the time. Hereinafter we shall refer to this truck, since two were involved, as the Reffel truck. Fred Reffel was sued jointly with the two defendants here appearing and although judgment was entered against him, he does not join in the case on error.
Defendant Sprague was the owner of a large truck, designated herein as the Sprague truck, which also was involved in the accident. Defendant Leonard was the agent and employee of Sprague and was the driver of the Sprague truck.
The Reffel truck was being used to deliver fish and the Sprague truck was loaded with six tons of baled hay. On August 5, 1939, a collision of these two trucks occurred, resulting in the death of the two boys in the Reffel truck.
Plaintiffs charge in their complaint:
'That said collision and the said death of Reuben Bauer, as a result of said collision * * * was due to the concurrent and simultaneous negligence and acts of said Glen Leonard and Ted Reffel, while engaged in the operation and driving of the respective trucks of the defendants A. M. Sprague and Fred J. Reffel, * * * all to the damage of plaintiffs in the sum of five thousand dollars.'
Defendants, as a defense, deny negligence. They specify as points for reversal:
In passing upon these points it is necessary to have clearly in mind the geographical situation, and a comprehensive understanding of the evidence and permissible inferences to be drawn therefrom. The uncontradicted evidence is that the Reffel truck was proceeding westerly and along the southerly or left-hand side of Highway 128 at a speed of approximately sixty miles per hour, and made no attempt to turn from its course along the southerly and wrong side of the highway until immediately Before the collision; and that the Sprague truck was proceeding easterly along said Highway 128 at a speed of thirty-five to thirty-eight miles per hour. The Reffel truck struck the right-hand corner of the body of the Sprague truck with the result that both trucks were practically demolished, the driver of the Sprague truck injured, and the two boys in the Reffel truck killed.
The point of collision is not in dispute. As Highway 87 approaches Highway 128 from the south, it divides into two prongs at a point approximately 200 feet south of 128, and one prong makes a sweeping curve to the east and the other to the west; each of these prongs of the Y thus formed, enters 128 at points approximately 285 feet apart. The point of collision was about 100 feet west of the easterly entrance. Highway 128, at the place of the accident is upgrade for one traveling as was the Sprague truck, from west to east. There is testimony, admitted over the strenuous objection of defendants, that where the westerly prong of 87 enters 128 there is a dip, or depression in the road on the right-hand side of such character as to cause a car, and particularly a truck twenty feet long, with a load of six tons of baled hay standing eleven feet from the ground, to sway very considerably if driven across it on the right-hand side of the road without reduction of speed. Defendant driver saw the Reffel truck beyond the easterly prong of Highway 87 proceeding westerly on the south side of the road, at the speed above noted. He states that he was of the opinion that the driver of that truck was on his wrong side of the road because he intended to make a left-hand turn into the easterly prong of 87, the north-south highway; and it is reasonably inferrable from all his testimony that neither the speed of the Reffel truck nor the fact that it was on the wrong side of the road created any apprehension in him until it failed to turn south into Highway 87. On direct examination by his counsel, he said, as set out in the abstract of the record:
There was no error in admitting proof of the dip in the road 200 feet west of the point of collision. There was evidence, at least facts are disclosed by the evidence from which it reasonably might be inferred, that when the collision occurred the Sprague truck was approximately in the middle of the road. The admitted proof of the dip tended to show that there was a reason for the Sprague truck's not being on the right or south side of the road wholly unconnected with the oncoming car, the reason being to avoid without slackening speed the swaying of the load by the dip which presumably defendant driver knew was there for he had driven the road more than fifty times. In other words, it tended to show a deviation from or violation of the rule of the road, requiring driving on the right-hand side, merely for the convenience of the driver of the Sprague truck. It was proper evidence because it tended to make probable a fact in issue; namely, whether defendant driver was, for his own purposes, out of his proper position or whether he was forced out of it by the emergency created by the oncoming truck. But it was not necessary for the jury to infer or conclude from this circumstantial evidence alone that defendant driver was in the middle of the road for his own purposes rather than because the oncoming truck was speeding or on the wrong side of the road, because his counsel brought out from him on direct examination the real reason indicated by the quoted testimony above. That testimony shows that defendant driver deviated from the rules of the road requiring him to drive on the right side thereof, not because of any apprehension from defendant's action in speeding or being on his left-hand side of the road, but so he himself would not have to slacken his speed at the easterly turn, if he and the Reffel truck arrived at approximately the same time, in order for it to make the turn. Defendant's counsel says in his brief:
'He [defendant driver] watched the other truck carefully and decided that it was so close to the south edge that the driver of the Reffel truck was doing that deliberately to indicate to Leonard that he was intending to drive straight into the cutoff.'
When the Reffel truck, proceeding on its wrong side of the road in violation of the rules of the road, passed the easterly turn the Sprague truck was proceeding down the center line of the pavement in violation of the rules of the road. We are not advised why the...
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