Oliver v. Weaver

• Citation: 212 P. 978,72 Colo. 540
• Decision Date: 05 February 1923
• Docket Number: 10248.
• Parties: OLIVER v. WEAVER.
• Court: Supreme Court of Colorado

212 P. 978

72 Colo. 540

OLIVER v. WEAVER.

No. 10248.

Supreme Court of Colorado

February 5, 1923

Department 1.

Error to District Court, Mesa County; Thomas J. Black, Judge.

Action by Harry Weaver against J. L. Oliver. Judgment for plaintiff and defendant brings error.

Judgment affirmed.

Vincent & Vincent, of Delta, and S. N. Wheeler, of Grand Junction, for plaintiff in error.

W. E Lady, of Los Angeles, Cal., S.W. Heckman, of Grand Junction and R. H. Walker, of Denver, for defendant in error.

ALLEN J.

This is an action for damages for personal injuries resulting from an accident due to the alleged negligence of defendant in operating an automobile. There was a verdict and judgment for plaintiff. The defendant brings the case here for review.

The accident occurred in the city of Los Angeles state of California. The plaintiff testified that he started to cross South Broadway, a street running north and south, by walking upon the usual space used by pedestrians when crossing that street at or near the intersection of South Broadway and West Seventh street; that he was crossing South Broadway, walking westwardly, at the time the street traffic on West Seventh street was moving, going either east or west; that defendant's automobile was standing directly in his path, and he, plaintiff, attempted to finish crossing South Broadway by going to the rear of defendant's car and passing it there; and that when he was back of the machine the car was suddenly backed and, as he testified, 'caught' him 'against the bumper of the car behind' defendant's automobile. The defendant testified that his car was struck and pushed back by a backing automobile in front of his machine. This testimony is contradicted by the evidence of a witness for plaintiff, who testified that there was no machine in front of defendant's car, headed south, or on the line of traffic where defendant was situated. This witness, an assistant traffic officer, also testified that he had defendant back his car, but that this was done before the accident.

There was apparently no reason why the defendant, after having backed his car in obedience to the officer's instructions, would again move it backwards intentionally. However, the testimony of the officer suggests that defendant, after moving the car back the first time, threw out the clutch, left the car in reverse gear, and then, when intending to go forward and letting in the clutch, the car moved backward because in reverse gear. At any rate, there was sufficient evidence to submit to the jury the question of defendant's negligence. The sudden backing of an automobile, or a backing without reasonable warning may be negligence. Section 225, Berry on Automobiles (3d Ed.).

The principal contention, however, of plaintiff in error, so far as the evidence is concerned, is that plaintiff was guilty of contributory negligence. We are unable to agree with this contention. Defendant's machine was in a line of traffic headed south, but halted while a traffic officer was permitting east and west traffic to proceed at the street intersection. At this time plaintiff was in a line of pedestrian traffic going east and west, and it was the proper time for him to attempt to cross the street. When he reached defendant's machine, he might have walked in front of it, but it was not contributory negligence, as a matter of law, to fail to do this and, instead, to attempt to pass behind the automobile. Other pedestrians were then doing the same thing. If plaintiff erred in judgment, as to best way to avoid danger, he was not, as a matter of law, guilty of contributory negligence. Williams v. Kansas City (Mo. App.) 177 S.W. 783. He was not bound to anticipate that the automobile would be backed up. The plaintiff found defendant's car standing upon a part of the usual crossing space, and it was apparently as safe to pass behind the car as in front of it. In section 377 Berry on Automobiles (3d Ed.) the author says:

'A pedestrian is not negligent in crossing a street behind a standing automobile, and can recover for injuries caused by the sudden backing of the machine, without warning, against him.'

That text is supported by Enstrom v. Neumoegen (Sup.) 126 N.Y.S. 661. A pedestrian may cross a street in the middle of a block. By so doing he is not, on that account alone, guilty of contributory negligence in case of an accident and injury to him while so crossing. See cases cited in section 300, Berry or Automobiles. There was no error in any of the court's rulings in reference to contributory negligence, including its refusal to direct a verdict for defendant.

It is contended that the court erred in permitting a witness, in a deposition, to testify what 'the traffic ordinances of the city of Los Angeles were.' The record does not show that the witness so testified. He was asked what 'the traffic regulations were * * * governing traffic' at the street intersection where the accident occurred, 'particularly with reference to street cars.' The answer was to the effect that south-bound street cars, approaching the intersection when the east and west bound traffic was permitted to move, were allowed to make a right-hand turn, and proceed with west-bound traffic. A similar regulation governed street cars going in the opposite direction. When this evidence was given, the trial judge made the following remarks:

'I think, upon reflection, that I will allow this to stand, with the suggestion to the jury that it is not intended to be offered upon the proposition as to what the ordinances were, but as to what the practice and rules and regulations of that officer were.'

All that the evidence amounted to was, in effect, that the traffic officer permitted street cars to make a right-hand turn when south and west bound, coming down South Broadway. It explains why he ordered defendant to back his machine which was for the purpose of getting away from the street car track where it makes a curve, so that the street cars could pass by the automobile. There was no necessity for proving any ordinance, for no ordinance is relied on, and need not be, no ordinance is claimed to have been violated, and all regulations are conceded by plaintiff to have been obeyed by defendant. The testimony in question, even if...