Ridenour v. Diffee

• Citation: 133 Colo. 467,297 P.2d 280
• Decision Date: 14 May 1956
• Docket Number: No. 17843,17843
• Parties: Madellne RIDENOUR and Ruby Wiese, Plaintiffs in Error, v. Gerald L. DIFFEE, Defendant in Error.
• Court: Supreme Court of Colorado

Page 280

297 P.2d 280

133 Colo. 467

Madellne RIDENOUR and Ruby Wiese, Plaintiffs in Error, v. Gerald L. DIFFEE, Defendant in Error.

No. 17843.

Supreme Court of Colorado, En Banc.

May 14, 1956.

Rehearing Denied June 4, 1956.

Isaac Mellman, Gerald N. Mellman, Denver, for plaintiffs in error.

Yegge, Bates, Hall & Shulenberg, Denver, for defendant error.

SUTTON, Justice.

This is an action in tort for damages.

The parties appeared in the trial court in the same order they appear here and we will refer to the plaintiffs in error as plaintiffs or by name and to defendant in error as defendant.

Plaintiffs sought damages for personal injuries resulting from an automobilepedestrian accident which occurred September 12, 1953. Plaintiffs were pedestrians lawfully crossing a public highway at the intersection of Broadway and First Avenue in Denver, Colorado, proceeding from west to east in the legal crosswalk on the south side of the intersection with the green light in their favor. They had reached a point five feet west of the center of the street when struck down. Defendant, driving an automobile in a westerly direction with the green light in his favor at this intersection, made a left turn to the south and struck the two plaintiffs. At the time the accident occurred, about 12:30 a. m., the street intersection was well lighted. The defendant claimed that his line of vision was blocked by the front left corner post of his car and that he did not see the plaintiffs until he was 12 feet or less from them. He testified that he looked in both directions to see if there were any cars coming. There was uncontradicted testimony that plaintiff Ridenour had looked to see that there was no traffic to prevent their crossing when they stepped from the curb after having waited for the light to change. Plaintiff Wiese in response to a question as to whether she had looked for traffic when she started across the street with Mrs. Ridenour stated:

'A. Well, before she asked me that I saw a car coming from the south going north, and the reason I remember that is because he was going real fast when he stepped on his brakes. When he stepped on his brakes he kind of rocked.

'Q. Well, that a different car from the one with which you had the accident. A. Yes; but other than that, whether I looked one way or not, I couldn't tell you.

'Q. You don't know whether you glanced toward the north? A. I know when she asked me for that restaurant I looked up there to see if there was one.'

The above testimony of plaintiff Wiese is the only fragment of the record that suggests any want of reasonable care on the part of either plaintiff. She looked and saw only the one car going north. Her later comments indicated that she couldn't say she had been looking for more traffic. One of the two plaintiffs did not see the defendant's automobile until a brief moment before the the impact; the other did not see it at all. The defendant testified that he was going between 10 and 15 miles per hour when he entered the intersection and that the light had changed to green when he was at the alley east of Broadway. A witness for defendant, Police Officer Radovich, testified that defendant's turn into Broadway '* * * would have been a legal left turn had he not struck the pedestrian.'

By their amended complaint plaintiff Ridenour alleged personal injuries and claimed $35,000 damages and plaintiff Wiese alleged personal injuries and claimed $15,000 damages. Defendant's answer denies any negligence on his part, denies that his acts were the proximate cause of the damages complained of and affirmatively pleads that the occurrence was an unavoidable accident and that the plaintiffs were guilty of contributory negligence. Defendant also denies the extent of injuries and damages claimed by plaintiffs.

At the completion of the trial both the plaintiffs and the defendant moved for a directed verdict and both motions were overruled.

Trial was to a jury which returned a verdict for the defendant. After the case was submitted the jury asked for certain information which the court gave without counsel being present although attempts were made to contract plaintiffs' counsel; defendant's counsel was contacted by telephone. Plaintiffs' motion for new trial was overruled and they bring the case here for review on writ of error.

Plaintiffs urge as error that the trial court erred in overruling their motion for a directed verdict on the question of liability in favor of the plaintiffs. They also urge as error other points relating to the refusal to give an instruction which stated it is negligence per se to violate an ordinance whenever such violation proximately results in an injury; in the giving of other instructions relating to contributory negligence, acts in emergencies and unavoidable accident; and in the court's response to the jury's inquiry.

It is only necessary for us to determine the first question presented which is: Should plaintiff's motion for a directed verdict on the question of liability have been granted? This question is answered in the affirmative.

The record shows no conflict in the evidence relating to the accident itself. The plaintiffs had lawfully and properly entered upon the street crossing; they had observed the street to see it was clear before starting; and one of them had seen defendant's car just before it hit them; the other had not seen it at all. It is obvious they didn't see defendant's vehicle when they lawfully started to cross the street because it was not yet in the intersection. Defendant had...