Piper v. Mayer

Decision Date06 February 1961
Docket NumberNo. 19246,19246
Citation360 P.2d 433,145 Colo. 391
PartiesFrank Z. PIPER and William T. Sampson, Plaintiffs in Error, v. Joseph H. MAYER and Silas T. Patton, Defendants in Error.
CourtColorado Supreme Court

Edward A. Jersin, Denver, for plaintiffs in error.

Wood, Ris & Hames, Stephen E. Connor, Denver, for defendants in error.

DOYLE, Justice.

The parties will be referred to as they appeared in the trial court where plaintiffs in error were plaintiffs. Review is sought of a judgment based on a jury verdict in favor of the defendants and against plaintiffs.

The plaintiffs instituted the action seeking to recover for personal injuries and property damage growing out of an automobile accident which occurred on the Clear Creek Canyon road 3 1/2 miles west of Golden, Colorado. On the day of the accident, March 16, 1958, at about 6:20 p. m. plaintiffs were traveling in an easterly direction on the mentioned highway toward Denver and had reached the point near Golden when Sampson's automobile, in which they were traveling, unexpectedly stalled. Plaintiffs pushed the car out of the lane of travel and the plaintiff Piper raised the hood and was, at the time of the impact, looking at the motor. Plaintiff Sampson was standing in front of the car when the impact occurred. Suddenly looking up, he saw the defendants' vehicle rounding a curve some 300 feet west of the point where the vehicle was stalled. As the defendants' car rounded the curve it spun out of control on the icy highway, and through the efforts of defendant Mayer to straighten it out, moved through a right are into a skid and its left side slid into the stalled vehicle, striking the left rear of the plaintiffs' car. The point of impact of the defendants' vehicle was at its left door. Plaintiffs' car had been stopped about 5 minutes when the collision occurred.

The testimony concerning the speed of the defendants' car just prior to the loss of control varied somewhat. One version was that the speed was from 30 to 35 miles per hour. However, a patrolman who came on the scene immediately afterward was told by Mayer that he was traveling between 40 and 45 miles per hour. It is undisputed that snow had been falling for several hours, that a considerable quantity had accumulated and that highway was hard packed and slick.

There is dispute as to the exact position of plaintiffs' vehicle at the side of the highway, although it was undisputed that plaintiffs had pushed the vehicle in an attempt to get it out of the lane of travel. According to the plaintiffs, they had pushed it to a point on the shoulder of the road some 8 feet from the blacktop portion. The defendants, however, testified that the car was actually in the travel lane. The patrolman offered an opinion as to the point of impact. He fixed it at the extreme edge of the highway. He said that the left wheels of the plaintiffs' car were on the outer edge of the blacktop. The defendants' view of the vehicle's position was derived from a quick look as their vehicle was moving toward the stalled car. At the time and place of the collision the entire highway, including the shoulders, was covered with snow.

There is no dispute but that some lights of the stalled vehicle were burning, the defendants having admitted seeing its rear light as they rounded the curve, and that at least one tail light was burning after the impact.

The issues submitted to the jury were negligence and contributory negligence, and the court read several statutes to the jury having to do with parking on the highway. Instructions were also submitted on unavoidable accident and emergency.

In urging reversal, the plaintiffs contend:

1. That the trial court erred in submitting to the jury the question of unavoidable accident; that assuming such instruction is at times appropriate, it is not applicable where the facts are such that the accident is shown to have been caused by defendants' negligence; that under no circumstances should the jury have been instructed to consider negligence, unavoidable accident and emergency; that the submission of all such issues unduly favored the defendants and was prejudicial to the plaintiffs.

2. That it was error to instruct the jury with respect to the unmerous statutes relating to parking on the highway, giving rise to the possible inference that the plaintiffs were guilty of some negligence, the statutes in each instance being inapplicable.


Instruction No. 7 defining unavoidable accident reads:

'An unavoidable accident is one happening suddenly and unexpectedly and without negligence on the part of anyone.'

The jury was also told that if it found from the evidence that the accident was unavoidable, then none of the parties was entitled to damages. It is argued that the instruction tended to create in the mind of the jury the impression that apart from the presence or absence of fault an independent reason existed for denying a recovery where the accident occurred suddenly. The question is whether the instruction as given applied to the fact situation as disclosed by this record.

The definition of unaboidable accident as found in our decisions describes it as:

'Such an occurrence, as under all the circumstances, could not have been foreseen, anticipated, or avoided in the exercise of ordinary care.'

Stephens v. Lung, 133 Colo. 560, 565, 298 P.2d 960. See also McBride v. Woods, 124 Colo. 384, 238 P.2d 183, 29 A.L.R.2d 101; Iacino v. Brown, 121 Colo. 450, 217 P.2d 266; Herdt v. Darbin, 126 Colo. 355, 249 P.2d 822. A substantially similar definition appears in Prosser, Torts 117. The emphasis upon the unforeseeable or unpreventable character of the occurrence would indicate that the criterion for application of unavoidable accident is lack of negligence or fault on the part of any of the persons involved. It is clear, however, from a study of the cases that it has been restricted in its application to a particular type of case. See McBride v. Woods, supra; Lacino v. Brown, supra; Herdt v. Darbin, supra; Jacobsen v. McGinness, 135 Colo. 357, 311 P.2d 696; Goll v. Fowler, 124 Colo. 404, 238 P.2d 187; Mobley v. Cartwright, 141 Colo. 413, 348 P.2d 379; Eddy v. McAninch, 141 Colo. 223, 347 P.2d 499; Parker v. Couch, Colo., 358 P.2d 609 and 10C Cyclopedia of Automobile Law and Practice, Sec. 6698.

An example of the limited usefulness of the unavoidable accident doctrine appears in McBride v. Woods, supra. There the trial court had given such instruction in connection with an automobile-pedestrian injury. The defendant had backed his car from a diagonal parking place into the path of a pedestrian who was in the act of crossing the street and who was unaware that the car was moving. Defendant tendered the instruction on the theory that he had a limited rear view and that the duty was on the pedestrian to discover the threat and to avoid the impact. The court rejected this argument and held that it was inapplicable because the defendant could have anticipated or foreseen the happening. The Court concluded:

'It follows, therefore, that from the facts and circumstances surrounding this case, no showing whatever was made justifying the submission of the question of unavoidable accident to the jury.' [124 Colo. 384, 238 P.2d 186].

In Jacobsen v. McGinness, supra, the rule was held inapplicable where defendant inadvertently drove to the left side of the highway and collided with an oncoming car. She claimed that the collision was unavoidable because she lost visibility in a cloud of dust created by an oil truck which she was following. The Court there held that the instruction was erroneous and added:

'* * * it tended not only to divert the minds of the jurors from the decisive issues of negligence and contributory negligence, but suggested that under the evidence the parties might be held blameless fro reasons other than their freedom from negligence or contributory negligence.' [135 Colo. 357, 311 P.2d 699].

Herdt v. Darbin, supra held it to be reversible error to so instruct the jury in an intersection accident case. Full visibility existed and on this basis the Court ruled that:

'* * * a collision of the two cars is not such an occurrence as could not have been foreseen, anticipated or avoided in the exercise of ordinary care.' [126 Colo. 355, 249 P.2d 823].

Eddy v. McAninch, supra, on the other hand, was the type of fact situation where the doctrine is appropriate. In that case there was an unforeseeable brake failure and in Parker v. Couch, supra, the defendant was required to stop because of zero visibility created by a dust storm. See also Dillon v. Sterling Rendering Works, 106 Colo. 407, 106 P.2d 358. Unlike Eddy and Parker, the instant case does not have in it the factor of an unforeseeable and uncontrollable happening as the cause of the injury. It is undisputed that defendant lost control of his vehicle. Whether this occurred three hundred feet from the point of collision or two hundred feet (according to defendants' version) is a matter of dispute. In either event, it cannot be said that such loss of control was attributable to a sudden and unforeseeable event. The evidence established that the icy, hard-packed condition of the roads was general and not merely local, therefore, the probability of defendants' car getting out of control was not unforeseeable. The factual issue in the case was whether defendant Mayer could have avoided loss of control of the vehicle by the exercise of reasonable care, thus presenting the issue of his negligence.

This principle is pointedly illustrated in the case of State for use of Whitaker v. Greaves...

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8 cases
  • Kendrick v. Pippin
    • United States
    • Colorado Supreme Court
    • May 9, 2011
    ...the party was confronted with an unanticipated and unforeseeable occurrence calling for immediate action. Cf. Piper v. Mayer, 145 Colo. 391, 396, 360 P.2d 433, 435 (1961) (holding that an instruction on unavoidable accident was improper because “the instant case does not have in it the fact......
  • Miller v. Brazel, 6748.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 15, 1962
    ...that the giving of such an instruction would furnish guidance to the jury in finding no negligence on either side. The case of Piper v. Mayer, Colo., 360 P.2d 433, is cited by both parties in support of their respective positions on the giving of an unavoidable accident instruction. That ca......
  • Mannon v. Farmers' High Line Canal & Reservoir Co.
    • United States
    • Colorado Supreme Court
    • February 6, 1961
  • Mayer v. Sampson
    • United States
    • Colorado Supreme Court
    • May 17, 1965
    ...and Silas Patton, and against the plaintiffs. We reversed that decision and directed the trial court to grant a new trial. Piper v. Mayer, 145 Colo. 391, 360 P.2d 433. At the second trial, the jury returned a verdict of $4,500.00 in favor of Piper, and of $1,787.00 in favor of Sampson. Judg......
  • Request a trial to view additional results

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