Parker v. Plympton
| Citation | 85 Colo. 87,273 P. 1030 |
| Decision Date | 24 December 1928 |
| Docket Number | 11900. |
| Parties | PARKER v. PLYMPTON. |
| Court | Supreme Court of Colorado |
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 200 P.2d 917
Rehearing Denied Jan. 14, 1929.
Error to District Court, El Paso County; Wilbur M. Alter, Judge.
Action by Anna Plympton against Paul Parker and another. Judgment for plaintiff, and defendant named brings error.
Affirmed.
William E. Hutton and John F. Pierce, both of Denver, and Chinn & Strickler, of Colorado Springs, for plaintiff in error.
Strachan & Horn and L. Leslie Miles, all of Colorado Springs, for defendant in error.
Anna Plympton, defendant in error, is the widow of Hercules Plympton, deceased. She recovered judgment on a directed verdict against Paul Parker and John M. Beckman, on the account of the death of her husband, caused by the negligence of defendants. Parker brings the case here to obtain a reversal, but Beckman has not come to this court. When not otherwise designated, we shall refer to the parties as aligned at the trial, Mrs. Plympton as plaintiff and Parker as defendant.
Hercules Plympton was a passenger in the rear seat of an automobile driven by defendant Beckman. Parker, the other defendant owned and drove another car. The cars collided at the intersection of two streets in Colorado Springs, and the Beckman car was overturned. As a result, Plympton received injuries from which he died a few days later. It was the same collision in which one Ullom was killed, by reason of which his widow recovered judgment against the same defendants reported in Parker v. Ullom, 84 Colo. 433, 271 P. 187, opinion by Mr. Justice Butler. Both cases were tried at the same term of court, and before the same trial judge. The same attorneys appear in both cases. The record in each case shows that the defendant Parker admitted his negligence, before either suit was brought. This fact was not mentioned in our opinion in the Ullom Case. It was affirmed on other grounds, but it is a fact of importance, especially here. Because of such admission, and because the same acts of negligence gave rise to both causes, details that otherwise might be stated will be omitted.
The evidence concerning defendant's admission of negligence appears from the testimony of Thomas L. Reasoner, a witness for plaintiff, and from defendant's cross-examination. Reasoner was a juror at a coronoer's inquest over the body of Hercules Plympton, deceased. Reasoner testified to effect that he had had a conversationwith Parker shortly after the inquest; that he (Reasoner) made the statement that the coroner's jury brought in a verdict against both of them (meaning Parker and Beckman), on account of Parker's he had had a conversation with Parker shortly also that he had gone on the highway with the vision obstructed. The witness further said that Parker made the statement that he though he was driving 'excessive,' that he could not see to the left, and that he was perfectly satisfied with the verdict of the corner's jury. At the trial in this case, Parker testified that he 'might have said' that he was negligent or careless, but 'did not think' he was careless, but he also said (found in another place in the record), that he 'did not think' he said that which Reasoner declared he (Parker) said.
Plaintiff's proof of damages shows that she is the widow of deceased; that decedent was an able-bodied man, 40 years of age, in good health, a laborer, working for the Denver & Rio Grande Railroad at $90 per month. He left surviving him his widow and three small children, aged 12, 11, and 6, respectively. At the time of the trial, the widow was working in a laundry, and two of the children were with relatives. This evidence was uncontradicted.
1. First, as to defendant's negligence: His culpability appears conclusively from the evidence. Reasoner's testimony, above referred to, is positive and unequivocal, and defendant admits that 'he might have said it.' This is enough. We do not consider the force of the admission, weakened by his statement in another place, that he 'did not think' he said it. It merely showed evasion, and at best, from his own standpoint, an attempt to weaken his previous admission by further lack of positiveness, but Reasoner was positive and convincing. We remark on the appalling consequences of the collision, the death of two men. Defendant's admissions were made after the coroner's inquest, and after he had had time to think the matter over. In a matter of such grim fatality, and after time for reflection, it is incredible that he should not know whether he said it or not. His failure to deny, when pressed for an answer, was equivalent to an admission. If the case had gone to the jury, and if they had found him guiltless in the face of his half-hearted but nevertheless convincing admissions, we should unhesitatingly direct that the verdict be set aside. The verdict in Parker v. Ullom, supra, is of course not binding on him here, but we refer to it as an additional corroboration, whether required or not, that his acts were such that the judgment of men cannot reasonably differ as to the fact of his negligence. The details of such negligence were related by other witnesses for plaintiff. The evidence is such that it is impossible to see how any reasonable man could doubt defendant's guilt, or reach a different conclusion. Defendant's admission was not overshadowed in the slightest by the evidence of his other witnesses, even if it should be conceded that an attempt thereat was allowable.
Speaking of directed verdicts in Neal v. Wilson County Bank, 83 Colo. 118, 122, 263 P. 18, 19, we said: The same language is applicable to this case.
2. As to damage: Defendant assigns error on the ground that 'The verdict is unsustained by any evidence of actual pecuniary damage to defendant in error.' We have stated above the material parts of the evidence as to the domestic relations of deceased. In support of the above assignment, defendant's counsel urge that the evidence does not show how much of Hercules Plympton's wages, if any, he contributed to the support of his family, but, if he gave them nothing, he could have been compelled to support them if he were alive, but now the family's future sustenance from his wages is gone forever. It does not require the calculation of a jury to determine how long $90 per month for a wife and three small children would last, if the full amount had been brought home. Under the table in section 6537, C. L. 1921, deceased had an expectation of 28.18 years more of life. We think that the statutory limitation of $5,000 was not too much. The evidence of plaintiff's damage was ample, and, being uncontradicted, it became a matter of law for the court.
3. Plaintiff and defendant each moved for a directed verdict. The court thereupon took the case from the jury, and directed judgment for plaintiff. Was this reversible error? We give the answer in the language of the last eight decisions of this court on the point.
In McGhee Inv. Co. v. Kirsher, 71 Colo. 137, 139, 204 P. 891, 892, we said:
Cascade Auto Co. v. Petter, 72 Colo. 570, 572, 212 P. 823, 824:
Boldt v. Motor Securities Co., 74 Colo. 55, 56, 218 P. 743, 744:
Commonwealth Casualty Insurance Co. v. Kuhrt, 75 Colo. 175, 177, 225 P. 251, 252:
Catlin v. Moynihan, 76 Colo. 164, 230 P. 1114:
Butts v. Sauve, 79 Colo. 317, 318, 245 P. 713: 'At the close of the evidence both sides moved for a directed verdict, which, under our decisions, left the case to the court.'
To continue reading
Request your trial