Richardson v. Pioneer Const. Co.

• Decision Date: 04 December 1967
• Docket Number: No. 21804,21804
• Citation: 164 Colo. 270,434 P.2d 403
• Parties: Doris L. RICHARDSON, Plaintiff in Error, v. PIONEER CONSTRUCTION CO., a Colorado Corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 403

434 P.2d 403

164 Colo. 270

Doris L. RICHARDSON, Plaintiff in Error, v. PIONEER CONSTRUCTION CO., a Colorado Corporation, Defendant in Error.

No. 21804.

Supreme Court of Colorado, In Department.

Dec. 4, 1967.

Kettelkamp, McGrath & Vento, Pueblo, for plaintiff in error.

H. Meyers Bumgardner, Charles D. Pierce, Pueblo, for defendant in error.

McWILLIAMS, Justice.

This is a wrongful death case. Doris Richardson, the plaintiff, made claim against the Pioneer Construction Company, the defendant, alleging that her husband was killed as a result of the defendant's negligence. At the conclusion of the plaintiff's evidence, defendant moved for a directed verdict in its favor. This motion was granted and the jury, by direction of court, returned a verdict for the defendant. Thereupon judgment was duly entered in favor of the defendant, and the plaintiff now seeks reversal of the judgment thus entered.

The central issue is whether the plaintiff's evidence of negligence on the part of the defendant was sufficient to carry the case to the jury. A brief recital of the evidence adduced by the plaintiff in support of her claim will perhaps bring this controversy into focus.

J. D. Richardson, a truck driver, was killed almost instantly when the tractor-trailer which he was driving left the southbound portion of U.S. Highway 85--87 about 1 1/2 miles south of Monument, jackknifed across the 30 foot grass median strip, and overturned on the northbound portion of the aforementioned highway. Richardson was driving what was described by his employer as an 'International diesel, cab-over tractor' type of vehicle. The accident occurred at about 1:30 o'clock in the morning while Richardson was enroute from Denver to Pueblo.

As of the date of the aforesaid accident, the defendant as a general contractor was engaged in certain construction and repair work on U.S. Highway 85--87 at the place where Richardson's truck left the highway and overtunred. It was the plaintiff's general theory of the case, as set forth in her complaint, that in repairing this particular stretch of highway the defendant carelessly and negligently maintained the 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 traveling on said highway.' Because of such negligence, according to the plaintiff, the 'truck and J. D. Richardson were precipitated from the highway.'

In support of its motion for a directed verdict, defendant contended that the trial court should grant the motion on any one of three grounds: (1) there was no evidence that it was the defendant which was engaged in the repair of the highway in question, (2) there was no evidence of any negligence on the part of the defendant, and (3) there was evidence of contributory negligence, as a matter of law, on the part of the deceased.

In granting this motion the trial court made no explanation as to the basis for its ruling. However, when the trial court subsequently denied the plaintiff's motion for a new trial it did give a very full explanation of its earlier action. In this explanation the trial court made detailed findings of fact. We would parenthetically observe that better practice would seem to suggest that a trial court's explanation as to just why it is granting a motion for a directed verdict should be made at the time the motion is granted, rather than weeks later when the motion for a new trial is determined. In any event, however, in denying the plaintiff's motion for a new trial the trial court specifically found that the defendant was 'in charge of the construction area in question.' The trial court then went on to find that there was insufficient evidence of negligence on the part of the defendant company. Alternatively, the trial court hedged a bit by finding that 'even if' the defendant was negligent, the deceased in such event was himself guilty of contributory negligence. In our considered view the trial court erred in its disposition of the matter and under the circumstances the plaintiff was entitled to have her claim resolved by the jury, and not by the trial judge.

Though the evidence is indeed sketchy as to whether it was the defendant company which was repairing the stretch of highway here in question, we nevertheless regard this matter as having been resolved in pre-trial proceedings. It is true that the defendant in its answer denied that it was repairing the portion of the highway where the accident occurred. However, in it's written pre-trial statement, the defendant admitted that 'it was engaged in construction repair of the area in question on the mentioned date.'

At the outset of the trial proper, counsel for the defendant attempted to retreat, at least to some degree, from his earlier admission. In this connection counsel upon trial, verbally stated that the defendant was not 'entirely responsible for the construction at the site.' When the matter was pursued a bit by opposing counsel, counsel for defendant agreed, however, that the defendant was in charge of this particular construction work, 'subject to their contract.'

On this state of the record, we are of the view that the contention of the defendant that there was no evidence that it was the company engaged in repair of the highway in question is...