La Rocco v. Fernandez, 17432

• Decision Date: 29 November 1954
• Docket Number: No. 17432,17432
• Parties: Veto LA ROCCO and Lucy La Rocco, Plaintiffs in Error, v. Joe Eliseo FERNANDEZ, Eliseo Fernandez and James Lannan, Defendants in Error.
• Court: Colorado Supreme Court

Page 232

277 P.2d 232

130 Colo. 523

Veto LA ROCCO and Lucy La Rocco, Plaintiffs in Error, v. Joe Eliseo FERNANDEZ, Eliseo Fernandez and James Lannan,

Defendants in Error.

No. 17432.

Supreme Court of Colorado, en Banc.

Nov. 29, 1954.

Rehearing Denied Dec. 20, 1954.

Emory L. O'Connell, Denver, Cecil R. Ditsch, Littleton, for plaintiffs in error.

Dudley I. Hutchinson, Dudley I. Hutchinson, Jr., T. Henry Hutchinson, Boulder, for defendants in error, Joe Eliseo Fernandez and Eliseo Fernandez.

Wolvington & Wormwood, Denver, for defendant in error, James Lannan.

HOLLAND, Justice.

Plaintiffs in error as plaintiffs filed their complaint in damages against the now defendants in error, or one of them, for and on account of damage to their automobile and for the death of their son, arising out of a collision of automobiles on the night of September 22, 1951, on an east-west road known as Base Line Road in Boulder county. At the close of plaintiffs' case defendants moved for dismissal of the complaint on the ground that plaintiffs had failed to show that either of defendants were negligent, and that there was no evidence as to how plaintiffs' car was damaged, or as to what car or cars collided with it. The court sustained the motion and defendants dismissed the cross complaint which they had filed. Seeking reversal of this order of dismissal, plaintiffs obtained the issuance of a writ of error by our Court and prosecute a review upon the contention that the trial court erred in sustaining a motion to dismiss at the conclusion of plaintiffs' testimony for the reasons that the admissions and allegations in the pleadings, opening statements, and evidence, made out a prima facie case against defendants.

At the time of the accident, one of the defendants, Joe Fernandez, was driving an automobile belonging to another defendant, Eliseo Fernandez, in a westerly direction on the highway known as the Base Line Road in Boulder county. At the same time, James Lannan, the other defendant, accompanied by two boys, Tod and Manning, was driving an automobile in an easterly direction on the highway. Fernandez, by his defensive pleading, claimed that Lannan was on the wrong side of the highway; and Lannan, by his defensive pleading, alleged that Fernandez was on the wrong side of the highway. At any rate, the two cars sideswiped to their damage; the Lannan car proceeding eastward and the Fernandez car travelling a distance to the west and turning over.

At the time of the collision, Rocco La Rocco, a minor son of plaintiffs, was driving an automobile in a westerly direction apparently immediately behind the Fernandez car, and it is alleged by defendant Fernandez that the Lannan car, after sideswiping the Fernandez car, went eastward head on into the La Rocco car. The La Rocco car was found badly damaged a little to the west of the point of impact, up and on the bank of an irrigation ditch, which was alongside the road, and the La Rocco boy was killed.

The first claim by plaintiffs in their complaint was for damages to the automobiles; compensation was sought by another plaintiff, Western Casualty and Surety Company, as subrogated insurer; and plaintiffs sought compensation for the uninsured damage. The second claim in the complaint was that defendants Joe Fernandez and James Lannan, or either or both of them, negligently drove their automobile into and against the automobile of plaintiffs, which negligence caused the death of plaintiffs' son Rocco, and they prayed for damages in the sum of $10,000.

Defendants Fernandez filed their answer and cross claim denying negligence on the part of Joe Fernandez, but admitted that defendant James Lannan negligently and carelessly operated his automobile as alleged by plaintiffs, and admitted, 'that the acts of said James Lannan caused the alleged damage to the automobile of the plaintiff Veto La Rocco.' As a second defense they alleged that plaintiffs' son was operating their automobile in a careless and negligent manner. As a first defense to the second claim of plaintiffs, defendants Fernandez allege, 'that the defendant James Lannan was carelessly, negligently and unlawfully driving the car then operated by him as set forth in paragraph 1 of the second claim and allege said automobile driven by said James Lannan came in contact with the automobile operated by Rocco Veto La Rocco; and further allege that as a result of such negligent operation by James Lannan, the automobile operated by the defendant James Lannan was driven into and against the automobile driven by Rocco Veto La Rocco.'

Defendant Lannan, as a first defense to plaintiffs' second claim alleged 'that the defendants Fernandez negligently and carelessly drove the automobile causing a collision with an automobile driven by Rocco Veto La Rocco.' He then denied that the collision was the result of any negligent act or omission on his part.

In the opening statement to the jury, counsel for defendants Fernandez stated, 'that the cause of this collision is the fault of the driver of the other car, Mr. Lannan, by being on the wrong side of the road * * * I believe our evidence will show * * *.' He further stated that the evidence would show conclusively that Fernandez was driving in a careful manner and on the right side of the road; that there was no negligence on his part which contributed to or was a proximate cause of the accident.

Counsel for defendant Lannan, in his opening statement, after stating that the two boys herein mentioned were passengers, said, in referring to one of the boys, 'Young Manning, however, remembers a little more about the collision than does Mr. Lannan...