Pioneer Const. Co. v. Richardson, 23685

• Decision Date: 01 November 1971
• Docket Number: No. 23685,23685
• Parties: PIONEER CONSTRUCTION COMPANY, Plaintiff in Error, v. Doris L. RICHARDSON, Defendant in Error.
• Court: Colorado Supreme Court

Page 71

490 P.2d 71

176 Colo. 254

PIONEER CONSTRUCTION COMPANY, Plaintiff in Error, v. Doris L. RICHARDSON, Defendant in Error.

No. 23685.

Supreme Court of Colorado, In Department.

Nov. 1, 1971.

H. Myers Bumgardner, Pueblo, for plaintiff in error.

Kettelkamp & Vento, Wesley Kettelkamp, Jr., Pueblo, for defendant in error.

HODGES, Justice.

This is a wrongful death action. The plaintiff in error was the defendant in the court below and will be referred to herein as defendant or as Pioneer. The defendant in error will be referred to as plaintiff or by name.

Plaintiff's husband, J. D. Richardson, was killed in the early morning hours of July 8, 1963, when the semi-trailer truck he was driving went out of control and left the southbound portion of U.S. Highway 85--87 (now Interstate 25) about 1 1/2 miles south of the Monument interchange. The section of road in question was in the process of construction and repair by the defendant, which was the general contractor for this project. The accident occurred at approximately 1:30 a.m. while Richardson was enroute from Denver to Pueblo. At this time, the surface of the road was gravel. Richardson's truck left the southbound traffic lane, traveled through a windrow of gravel or loose sand on the left side of that lane, jackknifed across a 30-foot median strip, and overturned on the northbound lane of traffic, coming to rest on the opposite side of that lane. Richardson was killed almost instantly.

In her complaint, plaintiff contended that the defendant company carelessly and negligently maintained this portion of highway in a dangerous and unsafe condition and 'carelessly and negligently failed to place suitable and sufficient warning signs, lights, barricades and watchmen at or near the same to warn persons traveling on said highway.' Plaintiff alleges that this negligence caused the accident and the ensuing death of her husband.

The case was tried to a jury. At the close of plaintiff's case, the judge granted defendant's motion for a directed verdict on the ground of insufficient evidence of negligence on the part of defendant, and judgment was entered for defendant. Plaintiff appealed that judgment to this court and we reversed and remanded for a new trial holding that there was sufficient evidence of negligence on the part of the defendant to warrant jury consideration. Richardson v. Pioneer Construction Company, 164 Colo. 270, 434 P.2d 403.

At the second trial, the defendant once again moved for a directed verdict, both at the close of plaintiff's case and at the close of all the evidence. The court denied both motions and the case was submitted to the jury. It returned a verdict for the plaintiff in the amount of $25,000, and judgment was accordingly entered for plaintiff. The defendant prosecutes this writ of error and urges that the judgment of the trial court be reversed on the bases of several claimed errors committed by the trial court. The record fails to reveal any reversible error, and therefore, we affirm the trial court's judgment.

I.

Defendant first argues that the trial court was in error in failing to direct a verdict for the defendant at the close of the evidence on the ground that plaintiff failed to prove any active negligence on the part of the defendant which could reasonably be construed to be the proximate cause of plaintiff's damages. Initially, we note that negligence is comprised not only of positive acts, acts of commission, but also of negative acts, acts of omission. The plaintiff alleged that defendant was guilty of both types of negligence in that he did the positive act of maintaining the road in a dangerous and unsafe condition, and at the same time did the negative act of failing to adequately warn travelers of that dangerous condition.

It is the often repeated rule in this state that the issue of negligence is a matter generally resolved by the trier of fact; it is only in those cases where the evidence is undisputed and where reasonable men could reach but one conclusion from that evidence, that the court is justified in usurping the function of the jury and directing a verdict for either party. Richardson v. Pioneer Construction Co., Supra; Lasnetske v. Parres, 148 Colo. 71, 365 P.2d 250; Yockey Trucking Company, Inc. v. Handy, 128 Colo. 404, 262 P.2d 930; W. Prosser, Torts (3d ed.) Ch. 6, § 36.

A careful analysis of the record before us reveals that there was a great deal of testimony introduced by both sides on the issues of negligence and causation. The jury heard conflicting testimony about the general conditions of the section of road, to wit: the existence and location of chuckholes, the washboard condition of the road, the size and location of the windrow of gravel, the relative location of the truck, the physical condition of Richardson, the mechanical condition of the truck itself, and the existence and location of various warning devices and speed control signs. We hold that the trial court correctly denied the motions for a directed verdict because there was a significant amount of disputed testimony from which reasonable men could have drawn differing conclusions. The trial court properly submitted the case to the jury. In fact, there was more evidence introduced at this trial than in the first trial of this matter wherein we held that sufficient evidence existed to take case to the jury. See Blackburn v. Tombling, 158 Colo. 369, 407 P.2d 337 wherein we held that on second review, where we have already considered the sufficiency of the evidence in the prior appeal, and where substantially the same evidence has been introduced, we will normally adhere to our prior determination.

II.

Defendant's section argument is closely related to the first. He argues that the verdict arrived at by the jury was contrary to law and the evidence and that the verdict could only have been reached by conjecture and surmise as far as proximate causation is concerned. With this argument we do not agree.

In Stout v. Denver Park & Amusement co., 87 Colo. 294, 287 P. 650, we held that in the absence of conflicting testimony the determination of proximate cause is for the court. To this same effect is Buckholz v. Union Pacific R.R. Co., 135 Colo. 331, 311 P.2d 717. Implicit in this rule, however, is the corollary proposition that if there is conflicting testimony and reasonable men might draw different conclusions from the testimony, the question of proximate cause is properly one for the jury.

The defendant argues that the question of proximate cause was not properly before the jury in this case because the additional testimony...