McNelley v. Smith, D-A
| Decision Date | 05 February 1962 |
| Docket Number | D-A,No. 19738,19738 |
| Citation | 149 Colo. 177,368 P.2d 555 |
| Parties | L. C. McNELLEY,Lubricant, Inc., Plaintiff in Error, v. Ted D. SMITH, William E. Lucas, d/b/a Smith and Lucas, contractors, a partnership, Power Equipment Company, a corporation, and Fred Schaefer, Defendants in Error. |
| Court | Colorado Supreme Court |
Raymond Duitch, Colorado Springs, for plaintiff in error.
January, Gilchrist & Blunk, Denver, for defendants in error, Smith and Lucas.
Littell & Algeo, Denver, for defendant in error, Power Equipment Co.
Rector & Kane, Colorado Springs, for defendant in error, Fred Schaefer.
In the trial court the defendant in error Smith and Lucas and the defendant in error Power Equipment Company were plaintiffs in an action against L. C. McNelley and D-A Lubricant, Inc. and Fred Schaefer as defendants, for damages to vehicles owned by Smith and Lucas and the Power Equipment Company. McNelley also cross-claimed against Schaefer. The parties will be referred to as they appeared in the trial court or by name.
The case was tried only on the issue of liability and resulted in a verdict for the plaintiffs and against defendants McNelley and D-A Lubricant, Inc., and for Schaefer against McNelley on the cross-claim of McNelley.
On September 9, 1957, a truck tractor owned by the plaintiff Power Equipment Company was proceeding south on U.S. 85-87, pulling a semi-trailer owned by Smith and Lucas. McNelley, a salesman for D-A Lubricant, Inc., was proceeding north on the highway followed by the Schaefer truck containing a load of watermelons. A collision occurred involving the Power Equipment Company tractor, the MeNelley car, and the Schaefer truck. The driver of the tractor was killed at the scene and McNelley was seriously injured and rendered unconscious for a period of some 21 days.
It was McNelley's contention that he had stopped on the highway with his turn lights on, preparatory to making a left turn across the highway to a construction camp where he intended to make a business call. The reason for the stop, McNelley testified, was to permit the plaintiff's tractor to clear the portion of the highway on which he wished to turn. He contends that he was hit from the rear by the Schaefer truck and knocked into the path of the oncoming tractor.
Schaefer's testimony was that McNelley, in attempting to pass a furniture van, which was proceeding on the highway ahead of him, pulled out about two feet into the opposite lane of traffic and was thereupon hit by the tractor. He further testified that after the collision the McNelley car was propelled into his truck by the force of the impact. The issues resolved themselves into a question of whether the Schaefer truck struck the McNelley car, driving it into the path of the plaintiff's tractor, or whether McNelley pulled out of his lane of traffic to pass another car and was thereupon struck by the plaintiff's vehicle.
The first witness for the plaintiff was a highway patrolman who investigated the accident. He testified concerning the physical facts at the scene of the accident, gave his opinion concerning the speed of the tractor, testified as to the point of impact and the angle at which the tractor and McNelley's car collided. He based these opinions on the damage done to the cars and on the physical facts present at the scene. In response to a question by plaintiff's counsel, he testified over objection that in his opinion McNelley's car, going north, pulled into the south lane of traffic and was struck by the truck and that Schaefer's truck was struck by the right rear of the McNelley car as it pivoted around from the force of the impact. He stated that this opinion was founded in part on the physical facts he had observed on the scene and in part on Schaefer's statement taken by him at the scene of the accident. The officer could take no statements from either McNelley or the driver of the tractor trailer. One was dead and the other unconscious.
McNelley assigns as error the admission of the evidence of this witness insofar as it reconstructed the accident and attempted to assign the cause of the collision. He also contends the officer's testimony was not admissible because it was based in part on the statements made to him by the defendant Schaefer at the scene of the accident.
While it is no longer a valid objection in Colorado that the opinion of an expert witness resolves the ultimate conclusion which the jury is to...
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