Sherry v. Jones, 17703
| Decision Date | 23 January 1956 |
| Docket Number | No. 17703,17703 |
| Parties | Mary SHERRY and Janice Sherry, by Mary Sherry, her mother and next friend, Plaintiffs in Error, v. Ann JONES, Defendant in Error. |
| Court | Colorado Supreme Court |
Isaac Mellman and Gerald N. Mellman, Denver, for plaintiffs in error.
Wood & Ris and Eugene S. Hames, Denver, for defendant in error.
Janice Sherry, a minor, prosecutes this action by her mother and next friend, to reverse a judgment on a jury verdict for defendant in a suit to recover damages for personal injuries sustained as a result of being struck by an automobile driven by defendant Ann Jones on October 21, 1953 in the crosswalk at the intersection of West 8th avenue and Lipan street in Denver. Plaintiff, now plaintiff in error, contends that the verdict is not supported by the evidence; that the court erred in sustaining objections to the testimony of a lay witness relating to an estimate of speed of defendant's automobile; in instructing the jury on contributory negligence in the absence of any testimony thereon; and also the giving and refusing of other instructions.
Plaintiff, thirteen years old, residing at 549 Lipan street, was walking on Lipan street toward the home of friends residing at 915 Lipan street. She was on the west side of the street and when she approached the intersection of West 8th avenue and Lipan street she stopped to wait for traffic. The intersection of Lipan street and West 8th avenue is at the easterly end of a viaduct on 8th avenue with a sharp decline into Lipan street. There are no signal lights at this intersection. A truck going east on the viaduct was in the south lane of traffic next to the curb when it approached the intersection and stopped near the crosswalk. The driver, seeing plaintiff standing on the curb, motioned to her to cross. She started to walk across 8th avenue and in front of the truck, that just as she passed the north line or north edge of the truck defendant's automobile struck her, causing serious personal injury to her head and teeth, the details of which are not necessary to repeat since the nature and extent of her injuries are not involved. The testimony shows there was a line of cars standing behind the truck in the outside lane of traffic; that defendant was on the inside lane near the center of the viaduct and was traveling at a speed estimated from twenty to twenty-five miles per hour, slowing down slightly as she passed the line of standing traffic because she feared some one would turn his automobile out of the line of standing cars into her lane. The testimony of a police officer, who promptly arrived at the scene of the accident, discloses that defendant's automobile made over-all skid marks of about seventeen feet and her automobile extended into the crosswalk. Defendant testified that she paid no attention as to the possibility of pedestrians crossing the walk and was not looking. She says her automobile stopped about even with the truck; however, the physical facts do not support her testimony, because the truck was stopped a short distance from the crosswalk and the driver of the truck testified that he motioned to plaintiff to cross and she walked in the line of the crosswalk in front of his truck and if defendant's automobile had stopped in line with the truck it would not have struck plaintiff, who was in the crosswalk.
The testimony of disinterested witnesses is clearly to the effect that plaintiff was not guilty of contributory negligence and the giving of an instruction on contributory negligence by the court in the absence of any testimony was error, because the jury could easily consider this an inference that the court believed there was evidence of contributory negligence.
A witness who was near the corner of the intersection at the time, saw plaintiff on the opposite side of 8th avenue and was waiting for her to cross to inquire in regard to her mother. This witness said plaintiff looked both ways and that the truck stopped and the driver motioned to plaintiff and that plaintiff went across in front of the truck, and that she saw the car being driven by defendant. The following questions were then propounded:
'Mr. Hames: If the Court please, I think there should be a foundation laid for that question.
'The Court: Objection sustained.
'Mr. Gerald Mellman: Well, if the Court please,----
'The Court: Objection sustained.
'Mr. Hames: The same objection.
'The Court: Objection sustained.
'Mr. Hames: The same objection.
'The Court: Objection sustained.
'Mr. Gerald Mellman: If the...
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