Panion v. Crichton

• Court: Colorado Supreme Court
• Writing for the Court: HALL
• Citation: Panion v. Crichton, 355 P.2d 938, 144 Colo. 170 (Colo. 1960)
• Decision Date: 26 September 1960
• Docket Number: No. 18898,18898
• Parties: John PANION, Plaintiff in Error, v. George J. CRICHTON and Allene R. Crichton, Defendants in Error.

Page 938

355 P.2d 938

144 Colo. 170

John PANION, Plaintiff in Error, v. George J. CRICHTON and Allene R. Crichton, Defendants in Error.

No. 18898.

Supreme Court of Colorado, In Department.

Sept. 26, 1960.

Rehearing Denied Oct. 24, 1960.

Porter, Klingsmith & Studholme, Gunnison, for plaintiff in error.

Dutcher & Bratton, Gunnison, for defendants in error.

HALL, Justice.

The parties appear here in the same order as in the trial court. We refer to them as plaintiff and defendants.

Plaintiff sought to recover from defendants for personal injuries and for damages to his automobile, alleged to have been caused by the negligence of the defendants.

Defendants by answer denied negligence on their part; alleged that the plaintiff was guilty of negligence which contributed to his injuries and property loss; and set up as a defense that the collision resulted from an unavoidable accident.

Defendants interposed a counterclaim for damages to their automobile. To this counterclaim plaintiff filed a reply, consisting of a denial and a further plea that defendants had a last clear chance to avoid the collision.

Trial to a jury resulted in verdicts denying relief to either party. Plaintiff is here by writ of error seeking reversal. He alleges as reasons therefor:

1. From the record it conclusively appears that the defendants were guilty of negligence as a matter of law, and that as a matter of law the plaintiff was not negligent, therefore the court should have directed a verdict in favor of plaintiff on the question of liability and submitted to the jury only the question of the amount to be awarded plaintiff.

2. Error in admitting in evidence defendants' Exhibits 3 and 4.

3. Error in the giving of Instructions 8 and 9 and refusal to give tendered Instructions A and B.

From the record it appears that at about 2:30 P. M., on January 4, 1957, at a point about one-fourth mile south of Crested Butte on State Highway No. 135, the defendants' automobile struck the rear end of plaintiff's automobile, resulting in the injuries and damages for which the plaintiff seeks to recover.

From the evidence it appears that the plaintiff's automobile was stopped, or nearly stopped, at the time of the collision and on the left side of the road, and that the left front end of defendants' automobile struck the right rear portion of plaintiff's.

Plaintiff's automobile had passed defendants prior to the collision. Prior to reaching the place of the collision plaintiff and defendants had been driving through what each called 'a snow storm' which limited visibility, causing plaintiff to slow down to about 10 miles per hour and the defendants to slow to a speed of about 20 to 25 miles per hour.

Both drivers testified that suddenly and without warning a sudden gust of wind, or a ground blizzard of snow, blew across the road, which reduced visibility to zero; this condition both refer to as the 'blizzard.' On the happening of this event plaintiff, being unable to see the road, veered to the left and his left fenders were scraping the snow banks piled along the left side of the road, whereupon he came to a gradual stop or near stop when he was hit.

Defendants were driving about 20 to 25 miles per hour, prior to reaching the 'blizzard' where plaintiff had stopped, with visibility of 30 to 40 feet. Suddenly and without warning they met the same blizzard which reduced visibility to zero and which had caused plaintiff to stop. Immediately on reaching this blizzard area, defendant George J. Crichton, who was driving, applied his brakes and ran into the right rear portion of plaintiff's automobile.

The defendant driver, testifying in his own behalf, made the following statements:

'A. Well, when we first drove in it [the blizzard] you could see the snow bank on the right hand side. You couldn't on the left hand side, but you could on the right hand side, and then just a few seconds after that you couldn't see anything except a few feet in front of you.

'Q. And how long was that before the accident or the actual impact? A. Well, it wasn't more than thirty seconds to a minute, at the most.' (Emphasis supplied.)

Plaintiff's counsel argue that the above is an admission by defendant driver that he drove at least 30 seconds at 20 to 25 miles per hour into the blizzard and by mathematical calculation arrive at the conclusion that he drove over 800 feet with no visibility and therefor he was guilty of negligence as a matter of law, and the motion for a directed verdict should have been granted. We do not agree with this reasoning or conclusion.

It will be observed that defendant made no such admission as plaintiff contends. As a matter of fact this statement places a maximum time, but fixes no minimum time during which he drove in the blizzard. Other testimony of the defendant driver is to the effect that it was not as long as 30 seconds, the distance was not as much as 800 feet, and 'it was almost immediately after we hit the blizzard that we hit Mr. Panion.' 'Well, we had just entered the blizzard when we hit Mr. Panion's car.' Testimony of the defendant Allene R. Crichton was very definite and consistent to the effect that her husband put on his brakes immediately on...