Parrish v. Smith

• Decision Date: 11 April 1938
• Docket Number: 14195.
• Citation: Parrish v. Smith, 102 Colo. 250, 78 P.2d 629 (Colo. 1938)
• Parties: PARRISH v. SMITH.
• Court: Colorado Supreme Court

78 P.2d 629

102 Colo. 250

PARRISH v. SMITH.

No. 14195.

Supreme Court of Colorado, En Banc.

April 11, 1938

Rehearing Denied May 2, 1938.

Error to District Court, Teller County; John M. Meikle, Judge.

Action by J. B. Smith against E. F. Parrish to recover for personal injuries sustained in an automobile collision. To review a judgment for plaintiff, defendant brings error.

Judgment reversed and cause remanded with directions.

HILLIARD YOUNG, and KNOUS, JJ., dissenting.

W. A. Alexander, Cecil M. Draper, and L. C Gerding, Jr., all of Denver, for plaintiff in error.

Warren B. Hale, of Cripple Creek, and Fred W. Mattson and A. B Mattson, both of Denver, for defendant in error.

HOLLAND Justice.

Defendant in error obtained judgment in the sum of $7,000 in the district court of Teller county against plaintiff in error as damages for personal injuries sustained by him and resulting from a collision between an automobile in which he was riding, and a truck owned by plaintiff in error, defendant below. To reverse this judgment, defendant prosecutes error. Reference will be made to the parties as they appeared at the trial, as plaintiff and defendant, and the cars involved will be designated as Fey's car and defendant's truck.

The collision occurred at about one o'clock on the afternoon of November 3, 1936, at a point some two miles east of Divide on the highway between Colorado Springs and Divide. The temperature was around zero and snow was falling at the time of the accident. Plaintiff left Colorado Springs about noon in a Ford V-8, owned and driven by one Fey, the car proceeding west at a rate of speed of 18 to 20 miles per hour immediately prior to the collision according to their testimony. This testimony, however, was qualified by plaintiff, who said it was 'possibly a little more than that, 25 miles in places.' Both plaintiff and Fey, the driver, were familiar with the highway and its condition, especially Fey, who was accustomed to driving over it and who had traveled the same road about four days prior to the date of the accident. At the place of collision and in that vicinity, a new highway was in course of construction, at some places crossing the old road and at others following its course. The collision occurred at the easterly end of a cut which was some three or four hundred feet long, and in places fifteen feet deep, which was new construction on the course of the old highway, and all travel had to pass through this cut during the time construction work was in progress and on the day of the accident. All of the surface of the highway within the cut, which occupied its entire width, was broken or plowed up, road machinery and other obstructions were present, and the traffic was under the direction of the construction foreman who had placed appropriate signs along the immediate line of travel. Work was not in progress on the day of the accident. Owing to piles of dirt, road machinery, and other obstructions, travel had been diverted toward the easterly end of the cut over to the extreme north side thereof, and the evidence discloses that all traffic was on a one-way line of travel which followed deep tracks that had been made by the traffic. According to the evidence, these tracks were from ten to twelve inches deep in places. At the easterly end of the cut was an incline or ramp on the old roadbed connecting with the old highway. Defendant's truck, eight feet wide, carrying a 1 1/2-ton load of acetylene and oxygen tanks, was proceeding easterly in this cut along the one-way line in the deep tracks above described, and traveling about ten to twelve miles an hour. It was just about to emerge from the one-way passage into and upon the incline to the old portion of the highway, when the collision with Fey's car occurred. From the testimony it appears. that when both cars came to a stop the general line between the old road and the line of the cut was between the two vehicles. Plaintiff and Fey, the driver, testified that they saw the truck when they were about 75 to 100 feet from it.

The evidence shows that the driver of defendant's truck saw the approaching automobile, applied his brakes, and was traveling not over 'three to five miles, practically stopped' at the time of the impact. Plaintiff's evidence discloses that Fey was familiar with the road and its condition; that he was aware of the cut or excavation; that he had passed over it four days Before and knew that it was not a finished road but was passable for traffic; that on the day of the accident, he saw a 'Road under Construction' sign at a point east of where the accident occurred, which, according to his testimony, 'meant that there might be danger ahead' and, he stated, 'I governed myself accordingly.' It was further shown that there was a warning sign fifty yards east of the point of accident. Plaintiff testified that as they approached this point he saw the truck a short distance ahead and 'that he glanced at Fey,' the driver, 'just in time to see him swing the wheel and then the crash came.' Fey testified that he saw the truck 75 to 100 feet away; that he turned his car toward the bank, put on the brakes; and that is the last he knew. Plaintiff was severely injured and the automobile was greatly damaged as is apparent from Exhibits A and B, which indicate that there was a violent impact. Notwithstanding the testimony of Fey to the effect that the road was all right and not slippery, that his brakes were in good condition, and that he could stop his car when it was traveling at a speed of 18 to 20 miles an hour, within 25 to 30 feet, this collision occurred. Kent, a witness for plaintiff, stated there was loose dirt on either side of the line of travel in which defendant's truck was traveling; that the truck was as far to the right as it could get and stay in the tracks that had been made by passing vehicles; and he further testified that this customary line of travel was blocked as a result of the accident.

Eliminating a...