Peterson v. Kessler
| Decision Date | 18 March 1957 |
| Docket Number | No. 17872,17872 |
| Citation | 308 P.2d 610,135 Colo. 102 |
| Parties | A. L. PETERSON, Plaintiff in Error, v. Margaret Elaine KESSLER and Saul Kessler, Defendants in Error. |
| Court | Colorado Supreme Court |
Lowell White, Walter A. Steele, Denver, for plaintiff in error.
Kripke & McLean, Denver, for defendant in error.
We will refer to the parties as they appeared in the trial court where defendants in error were plaintiffs and plaintiff in error was defendant, or by name.
Plaintiffs alleged in their complaint that they suffered personal injuries and damages resulting from an automobile collision February 8, 1953, on U. S. Highway 91 near Spencer, Idaho, and that the careless and negligent acts of defendant were the proximate cause of the accident.
Defendant denied the allegations of negligence on his part, and affirmatively alleged that plaintiffs were guilty of contributory negligence and that any injuries suffered and damage sustained was the result of an unavoidable accident. By counterclaim he asked judgment for damages allegedly sustained by him in the collision.
The action was tried to a jury which returned verdicts in favor of Mrs. Kessler for $1,093.66 and in favor of Saul Kessler in the amount of $15,000. Defendant filed a motion for judgment notwithstanding the verdict, and motion for a new trial, each of which was overruled by the trial court and judgments entered on the verdicts. Defendant brings the cause to this court by writ of error.
Defendant argued two separate grounds for reversal, namely: (1) That as a matter of law the uncontradicted evidence established contributory negligence on the part of each plaintiff which bars a recovery; and (2) that as a matter of law the evidence offered upon the trial failed to establish negligence on the part of defendant which proximately caused the accident.
It is undisputed that at about 1:30 or 2:00 o'clock in the afternoon of February 8, 1953, plaintiffs stated to drive in a southerly direction from the town of Spencer, Idaho, and within a distance of one and one-half to two miles entered a severe snowstorm. Heavy snow was on the ground and strong winds were blowing so as to seriously impair visibility. Plaintiffs' car became stalled and Mr. Kessler walked back to Spencer to obtain help. He returned with help but meanwhile his car had been extricated by highway maintenance equipment and he was in a position to continue his trip. He was able to proceed but a short distance, however, when he stalled and was again assisted by a snowplow. He decided that it would be necessary to put on chains over the snow tires with which his automobile was equipped, and he and his wife testified that they pulled off as far to the right side of the road as they could in order to affix the chains. They testified that there was ample room for two cars to pass on the left side of their automobile and that while they were stopped for the purpose of attaching the chains two automobiles passed them travelling in the same direction as they were headed. Defendant who also was driving in the same direction as plaintiffs, testified that visibility was 'very, very poor, practically nil'; that his car entered a snow drift and a shower of snow covered his windshield momentarily; that he did not and could not see plaintiffs' automobile which he testified was in the middle of the road. A collision resulted, in which Mr. Kessler suffered a broken leg and other injuries, and Mrs. Kessler received lesser personal injuries.
No contention is made here that the trial court erred in giving instructions to the jury.
In Scott v. Matsuda, 127 Colo. 267, 255 P.2d 403, 404, this court said, inter alia:
...
To continue reading
Request your trial
-
CeBuzz, Inc. v. Sniderman, 22358
...is shown, then the question is one to be determined by the jury. Elliott v. Hill, 148 Colo. 553, 366 P.2d 663; Peterson v. Kessler, 135 Colo. 102, 308 P.2d 610. It is our conclusion that the evidence established defendant's negligence as a matter of law, and that the trial court properly di......
-
King Soopers, Inc. v. Mitchell
...P.2d 930, 931; Scott v. Matsuda, 127 Colo. 267, 255 P.2d 403; City of Boulder v. Burns, 135 Colo. 561, 313 P.2d 712; Peterson v. Kessler, 135 Colo. 102, 308 P.2d 610, 611. The language of the Court per Justice Moore in the Peterson case is fully applicable '* * * In the instant case the jur......
-
Elliott v. Hill
...be drawn by fair-minded men as to whether negligence is shown, then the question is one to be determined by the jury. Peterson v. Kessler, 135 Colo. 102, 308 P.2d 610. The function of the court in such circumstances does not go beyond the duty to correctly instruct the jury on the law of In......