Seifried v. Mosher, 17224

• Decision Date: 01 March 1954
• Docket Number: No. 17224,17224
• Citation: 268 P.2d 411,129 Colo. 156
• Parties: SEIFRIED v. MOSHER et ux.
• Court: Colorado Supreme Court

Page 411

268 P.2d 411

129 Colo. 156

SEIFRIED v. MOSHER et ux.

No. 17224.

Supreme Court of Colorado, En Banc.

March 1, 1954.

Rehearing Denied March 29, 1954.

Wolvington & Wormwood, Denver, for plaintiff in error.

Mabry & Mabry, Trinidad, for defendants in error.

MOORE, Justice.

We will herein refer to the parties as they appeared in the trial court where defendants in error were plaintiffs and plaintiff in error was defendant.

Plaintiffs are husband and wife. The action was instituted to recover damages allegedly sustained by them as the result of an automobile accident in which the car driven by defendant collided with the one in which they were riding. The accident occurred at an intersection of country highways near the town of Swink, Colorado. Plaintiffs alleged that the damages claimed by them were proximately caused by the negligence of defendant in driving his car. Defendant denied that he was negligent, and alleged that plaintiffs were guilty of contributory negligence, and by counterclaim he sought judgment for the amount of damages sustained by him. The issues were submitted to a jury and resulted in verdicts in favor of plaintiffs. The jury awarded to the husband damages in the sum of $290, and the verdict in favor of the wife was for $5,110. Judgments were entered upon the verdicts, and defendant, seeking reversal, brings the cause to this Court by writ of error.

Counsel for defendant asks reversal of the judgments on several grounds, including the following:

'The Court erred in denying defendant's Motion for a Directed Verdict on plaintiffs' Complaint. There was no evidence of negligence on the part of the defendant but assuming there was, the plaintiffs were guilty of negligence or contributory negligence as a matter of law.

'The court erred in denying defendant's Motion for a Directed Verdict on defendant's Cross-Complaint.

'There being no evidence of negligence on the part of the defendant and the plaintiffs being guilty of negligence as a matter of law, the trial court should have directed a verdict in favor of the defendant on his Cross-Complaint in the sum of $245.10, the stipulated amount of his damages.'

It also is argued that the trial court erred in giving instructions, and in refusing to give one instruction tendered by counsel for defendant.

The evidence essential to an understanding of this case is, in substance, as follows: Plaintiffs were driving south on a north-south road and defendant was travelling west as each car approached the intersection where the collision occurred. Each of the roads was surfaced with gravel, and there was little difference as to their condition, or the amount of travel thereon. There was an irrigation ditch running parallel to the east-west road on the north side. It was built in such a way as to be on higher ground than the level of either road, and as plaintiff travelled south, just prior to entering the intersection, it was necessary for him to drive up over the rise caused by the ditch. At the time in question, weeds had grown up along the ditch and obscured the view of vehicle drivers at this intersection. A few feet from the intersection there was a stop sign on the north-south road which required persons travelling south, as plaintiffs were doing, to come to a stop before entering the intersection. There is evidence that plaintiff Oliver Mosher came to a complete stop, looked to his left and could see no westbound traffic; that he listened and could hear nothing; that he put his car into low gear and proceeded to cross the intersection; that when the front of his car was at about the center line of the highway, defendant's car was 40 or 50 feet away travelling between 50 to 60 miles per hour; that it struck plaintiffs' car 'dead center'; that defendant could have passed behind plaintiff 'as well as hit me'; that defendant had 140 tomato hampers or baskets in his 1941 Chevrolet touring car, that they were in the trunk, the back seat and also stacked up to the roof in the front of the car on the passenger side next to defendant driver; that the right half of defendant's windshield was broken by the baskets being thrown against it; and that plaintiff measured defendant's skid marks back from the point of impact for a distance of 87 feet (the courtesy patrolman testified to 'about 15 feet' of such marks). Defendant lived in the vicinity of the intersection, knew the dangerous character of the crossing, and had observed other collisions that had occurred at the same place. Plaintiffs were strangers to the area.

On the trial, each of the parties testified that the other made statements and did acts which might be construed as having been said or done from a consciousness of guilt concerning the cause of the accident. All such statements and damaging inferences from conduct were denied by The one to whom they were attributed. The evidence hereinabove mentioned is by no means admitted. On most every material question there is evidence which places in sharp dispute the pertinent facts. From the printed page it might be said that the weight of the evidence was in favor of defendant; however, our court is not the judge of the weight of the evidence or of the credibility of witnesses, and the fact that we might resolve the issues of fact from a consideration of the record alone, in a manner at variance with the findings of the jury, will not justify a reversal, if the verdicts of the jury are supported by competent evidence.

The statute governing traffic at rural intersections, Chapter 16, section 210, '35 C.S.A., provides as follows:

'(a) The driver of a vehicle shall stop as required by this part at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.

'(b) The driver of a vehicle shall likewise stop in obedience to a stop sign as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.'

Questions to be Determined

First: Must we say as a matter of law that, under the evidence considered in the light most favorable to plaintiffs, no completent showing of negligence on the part of defendant was made; or that, assuming negligence of defendant as a matter of law, plaintiff Oliver Mosher was guilty of contributory negligence?

This question, in each phase thereof, is answered in the negative. The ultimate fact upon which determination of the controversy depends involves the question as to whether plaintiffs or defendant had the right of way. It is clear that plaintiffs' car entered the intersection before that of defendant. Under the statute hereinabove quoted plaintiffs had a right to proceed unless defendant's car was 'approaching so closely as to constitute an immediate hazard'. The phrase quoted necessarily imposes due care and caution on the part of the approaching driver under all the facts and circumstances present. Our court in Amos v. Remington Arms Co., 117 Colo. 399, 188 P.2d 896, 898, said, inter alia:

'Whether or not either Davis or Amos or both were negligent in violating the traffic laws, and whether said negligence was the proximate cause of this accident, or whether it was caused by the joint and concurrent negligence of both, were questions of fact for the jury to determine. 'Negligence is generally for the jury, and always so when the measure of duty is reasonable care...