Powell v. City of Ouray, 72--177

• Decision Date: 30 January 1973
• Docket Number: No. 72--177,72--177
• Citation: 32 Colo.App. 44,507 P.2d 1101
• Parties: Barbara Jean POWELL, Plaintiff-Appellant, v. The CITY OF OURAY, a municipal corporation, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 1101

507 P.2d 1101

32 Colo.App. 44

Barbara Jean POWELL, Plaintiff-Appellant, v. The CITY OF OURAY, a municipal corporation, Defendant-Appellee.

No. 72--177.

Colorado Court of Appeals, Div. I.

Jan. 30, 1973.

Rehearing Denied Feb. 21, 1973.

William L. Carew, Thomas H. Birch, Colorado Springs, Irvin M. Kent, Denver, for plaintiff-appellant.

Coit, Graham, Webster & Wise, George Graham, Grand Junction, for defendant-appellee.

PIERCE, Judge.

Plaintiff, Barbara Jean Powell, filed this action against the City of Ouray, seeking damages for injuries she sustained as the result of a collision between a jeep owned by the City and motorcycle on which she was a passenger. The defendant City admitted that the accident occurred; denied that the City employee driving the jeep, Cromwell Southward, was negligent, and raised the affirmative defense of contributory negligence.

The case was tried to a jury and the following facts were established.

On the day of the accident, plaintiff and her husband were on a sight-seeing trip in the Ouray area on a motorcycle owned by and titled in the husband. Their travels took them on a road which goes up to a narrow bridge crossing over a river, and into the mountains. While approaching the river Mr. Powell, the driver of the motorcycle, saw a jeep pickup truck at least 200 feet ahead of him, parked on the bridge. Uncontradicted testimony establishes that he pulled his motorcycle to the side of the road well off the traveled portion, and waited to see what the driver of the jeep would do. In the meantime, Southward, the driver of the jeep, began to back the jeep off the bridge. He testified that although he had seen the motorcycle prior to his leaving the bridge, he lost sight of it while backing up and presumed it had either left the street or pulled into a nearby motel. The evidence is contradictory as to whether Southward backed his truck directly into the motorcycle or whether he was backing his truck toward the motorcycle and at the last instant swerved into the motorcycle. However, it is undisputed that he did hit the motorcycle, and that he did not see or hear the efforts of plaintiff and her husband to attract his attention prior to the accident. The motorcycle was knocked over on top of Mrs. Powell and the alleged injuries resulted. Mr. Powell escaped the accident without injury.

The case was submitted to the jury with instructions on contributory negligence. Since the action arose after adoption of the Colorado comparative negligence statute, 1971 Perm.Supp., C.R.S.1963, 41--2--14, the jury was instructed that they must determine the degree of negligence of each party, expressed as a percentage of 100%. The jury returned a special verdict in which they determined that the defendant was negligent; that said negligence was a proximate cause of plaintiff's claimed injuries, and that plaintiff's own contributory negligence was likewise a proximate cause of her claimed injuries. They further determined that the percentage of combined negligence attributable to defendant, City of Ouray, was only 30%, while plaintiff's contributory negligence was 70% Of the total. As a result, no award of damages was entered for plaintiff. Plaintiff appeals. We reverse.

I.

Initially, appellant contends that the trial court erred by not granting a motion for change of venue. The record shows that appellant initially requested a change of venue in a pre-trial statement, which was denied. Treating this as a motion for change of venue, we find that it was not supported by an affidavit as required by C.R.C.P. 98(g) and therefore, was properly denied as not complying with the rule.

Thereafter, the motion for change of venue was renewed at the close of appellant's voir dire examination of prospective jurors, this time taking the form of a challenge for cause of the entire panel. Again, it was denied by the court.

C.R.C.P. 98(e)(1) provides that the court may, in its discretion, grant a motion for change of venue if justice would be promoted or if either party fears that it would be impossible to receive a fair trial in the county in which the action is pending. The burden, however, of establishing that undue prejudice in the community exists, is on the party seeking the change. Cliff v. Gleason, 142 Colo. 500, 351 P.2d 394. Whether prejudice exists is a question of fact that may be developed at voir dire. Martz v. People, 114 Colo. 278, 162 P.2d 408. Here, the voir dire established that a significant portion of the jury panel was familiar with the witnesses on behalf of the defendant City, and that a portion of them, as citizens of the City, could have an economic interest in the outcome of the suit. However, the voir dire also establish that each prospective juror considered himself capable of being fair under the circumstances, and able to return a verdict for plaintiff if the evidence supported it. It was for the trial court to consider these facts, and grant or deny the motion for change of venue, and only a clear showing of abuse of discretion on its part would permit this court to reverse its ruling. Liber v. Flor, 160 Colo. 7, 415 P.2d 332; Reyher v. Mayne, 90 Colo. 586, 10 P.2d 1109. Here, the record falls far short of establishing that the defendant City, or its employee, exercised an undue influence over its inhabitants, or that any prejudice or miscarriage of justice would result from proceeding with the trial in Ouray County. C.R.C.P. 98. We perceive no abuse of discretion in the court's denial of the motion for change of venue.

II.

Turning to the issue of negligence, defendant initially raises the question of whether Southward was negligent at all. Because negligence of the plaintiff would only be relevant if Southward were negligent, it is necessary to consider this matter first.

Mr. Southward, in backing his vehicle, had a duty to exercise reasonable care. McBride v. Woods, 124 Colo. 384, 238 P.2d 183. This standard has been codified in 1965 Perm.Supp., C.R.S.1963, 13--5--150(1)(a) as follows:

'The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic.'

In the instant case, the evidence was such that different conclusions could be drawn as to whether negligence was shown, and thus the question was properly submitted to the jury for determination. Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185. A review of the record reveals adequate evidence upon which a finding of negligence could be based.

The question then becomes one of whether there was adequate evidence to support submitting to the jury the question of whether Mrs. Powell was negligent. The City argues two theories to support submission. First, that Mrs. Powell was negligent herself in that she failed to keep a proper lookout, and did not warn her husband of the impending danger. The second theory is that the driver of the motorcycle, Mr. Powell, was negligent and that this negligence could be imputed to Mrs. Powell as the passenger. This latter issue was submitted to the jury with instructions on joint venture, the contention being that this sight-seeing trip was a joint venture between husband and wife. We do not find adequate evidence to support either theory and hold that the question of Mrs. Powell's negligence should not have been submitted to the jury.

This action arose after adoption of the comparative negligence statute, and it was apparently the trial court's understanding that because of this change in the law, its responsibility with regard to ruling on the issue of plaintiff's negligence, as a matter of law, had been altered. We disagree with this approach. The general rules, which we adopt, is that comparative negligence rules are applicable only where there is evidence...