Matt Skorey Packard Co. v. Canino
| Decision Date | 11 April 1960 |
| Docket Number | No. 18740,18740 |
| Citation | 142 Colo. 411,350 P.2d 1069 |
| Parties | MATT SKOREY PACKARD CO., Plaintiff in Error, v. John C. CANINO, Defendant in Error. |
| Court | Colorado Supreme Court |
Sheldon & Nordmark, Paul C. Brown, Denver, for plaintiff in error.
Anthony F. Zarlengo, Robert D. Inman, Denver, for defendant in error.
The parties were aligned in reverse order in the trial court and will be referred to here as they appeared there.
Plaintiff, alleging negligence by defendant, commenced his action in the district court for damages for personal injuries sustained by him November 18, 1955, at defendant's garage premises at 1147 Broadway, in Denver. Trial was to the court resulting in judgment in plaintiff's favor for $12,500.
Defendant, for the purpose of this review, admits negligence on its part, does not question the nature or extent of plaintiff's injuries, nor the amount of the damages awarded, but contends as it did in the trial court, that plaintiff was guilty of contributory negligence which bars his recovery as a matter of law.
The accident occurred in the service department of defendant's garage when plaintiff called for his automobile about 7 o'clock in the evening. He had purchased the automobile from defendant in the year 1954, the sale including inspection, greasing and other services until the car had been driven a certain number of miles. Plaintiff took the automobile to defendant's garage three or four times for such service. A few days before the accident, his wife had trouble with the car and defendant towed it to the garage for repair. The following day plaintiff telephoned the garage about the car and was promised that it would be ready the next afternoon. At the time appointed he went to the garage but the car was not available. The garage manager told him to return that night when it would be ready, and that a salesman would admit him through the salesroom adjoining the service department. Conformably, he presented himself at the garage that evening; the salesroom was brilliantly lighted and a salesman was on duty. Plaintiff informed the salesman that he had come for the car. The salesman didn't seem to know anything about it, but upon plaintiff's assurance that the car was there, the salesman walked into the doorway between the salesroom and the service department with plaintiff following him. He did not turn on the lights. There was a small light, neither bright nor dim, hanging in the nearby parts department which shed light in the service department and some light came through a large rear window of the shop.
Plaintiff looked down the lane and saw the rear of his automobile which was among others in the shop. He said, 'That is my car.' The salesman answered, 'Okay.' Plaintiff, who had never been in the rear part of the service department, walked to his car about fifty feet away while the salesman turned in the opposite direction presumably to open the front door for plaintiff's exit. Plaintiff's automobile was resting on an unprotected open alignment pit in a dark corner. The pit was wider than the vehicle, extending out a few feet from each side. Plaintiff could see his way to the automobile, although he failed to notice a twenty-foot concrete ramp ahead of him leading to an exit at the rear of the garage. He did not see the pit and as he walked from the rear of his automobile to the left or driver's side to enter the vehicle, he fell into the pit and suffered serious injury to his left lower extremity.
The defendant urges for a reversal that plaintiff's action under the conditions existing when he was injured amounted to contributory negligence and the judgment should not be permitted to stand. Plaintiff counters that the judgment should be affirmed because 'the findings of the trial court should not be disturbed.' Ordinarily this is a sound contention if the findings are supported by competent evidence. The corollary to plaintiff's argument is that if erroneous...
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