Sprague v. Herbel, 12435.

• Decision Date: 28 December 1931
• Docket Number: 12435.
• Citation: 90 Colo. 134,6 P.2d 930
• Parties: SPRAGUE v. HERBEL.
• Court: Colorado Supreme Court

6 P.2d 930

90 Colo. 134

SPRAGUE v. HERBEL.

No. 12435.

Supreme Court of Colorado, En Banc.

December 28, 1931

Error to Weld County Court; Geo. H. Van Horn, Judge.

Action by G. F. Herbel against A. M. Sprague. Judgment for plaintiff, and defendant brings error.

Affirmed.

Swerer & Johnson, of Denver, for plaintiff in error.

Benj. A. Woodcock, of Greeley, for defendant in error.

W. W Grant, Jr., Erl H. Ellis, Morrison Shafroth, and Henry W Toll, all of Denver, amici curiae.

MOORE J.

G. F Herbel recovered judgment in the sum of $300 and costs against A. M. Sprague in the county court of Weld county for damages to his automobile claimed to have been caused by defendant's negligence in permitting a motortruck to remain after dark and without lights upon the traveled portion of a county road near La Salle, Colo. The suit originated in the justice court, and was appealed to the county court by the defendant and there by agreement tried to the court, de novo and without written pleadings.

The record presents the single question: Was the plaintiff guilty of contributory negligence as a matter of law?

The son of the plaintiff testified that he was driving his father's automobile toward Greeley on a county public road about two miles from La Salle, and ran into defendant's truck, which had a flat tire and had been left by defendant unlighted on the traveled portion of the road after nightfall.

In this connection he testified:

'Q. Will you state what happened on that evening? A. Well, I was coming along into La Salle, about two miles out of town yet. As I was coming along the road there was a car coming from the north. As I was going north when this car passed me--when we passed one another--I seen a truck right in front of me and I turned out as short as I could in order to miss it, but it caught one side of my car and tore it all out.

'Q. What effect, if any, did this other car's lights have upon you? A. Well they was pretty bright lights. I couldn't see out ahead very far enough to see the road good.

'Q. How far were you from the truck in your estimation, when you first saw the lights coming toward you? A. I seen the other car lights as soon as I turned the corner.

'Q. How far was that from the truck? A. Probably a mile and a half; something like that.

'Q. As you came towards this light did the man who was driving this other car dim his lights? A. No.

'Q. Did you dim your lights? A. No, I didn't.

'Q. And you say you were blinded by his head lights? A. I wasn't blinded but I couldn't see very far ahead.'

On cross-examination he stated:

'Q. You must have been blinded by those lights weren't you? A. Well, yes.

'Q. And you still kept on driving without slacking up your speed even though you were blinded by the lights? A. No, I slowed up.

'Q. How fast were you going when you struck the truck? A. About thirty.

'Q. And Before you were going about how fast? About forty-five miles an hour? A. No. About thirty-five maybe a little less; I didn't just watch my speedometer.

'Q. At the time you were within ten feet of the truck you were going thirty miles an hour? A. Somewheres about that.

'Q. You couldn't see the truck until you were ten or twelve feet from it? A. No.'

Defendant contends that this testimony, standing in the record undisputed, conclusively proves that plaintiff was guilty of contributory negligence as a matter of law. He argues that one who suffers damage while driving his automobile in such a manner that it cannot be stopped within the range of his vision fails to exercise reasonable care, that all such cases should be withdrawn from consideration of the jury and recovery denied, and that the establishment of such a fixed rule of law would result in greatly decreasing the number of accidents attributable to its violation.

The question here involved has been frequently considered and determined in many jurisdictions. The decisions are in irreconcilable conflict. Speaking generally, these may be divided into two classes: First, those which follow the rule announced in Murphy v. Hawthorne, 117 Or. 319, 244 P. 79, 44 A.L.R. 1397, holding that contributory negligence is for the jury; second, those following the doctrine announced in Lauson v. Town of Fond du Lac, 141 Wis. 57, 123 N.W. 629, 25 L.R.A. (N. S.) 40, 135 Am.St.Rep. 30, that one who drives at a speed which will not enable him to stop within the range of his vision is guilty of contributory negligence as a matter of law.

In Murphy v. Hawthorne, supra, plaintiff continued to drive his automobile at a speed of twenty-five miles an hour, notwithstanding his vision was obstructed by dust 'kicked up by a passing bus,' and collided with defendant's truck parked on the right side of the highway without any light. Therein the court, after refusing to follow the rule announced in Lauson v. Town of Fond du Lac, stated at page 322 of 117 Or. 244 P. 79, 80: 'Each case must be considered in the light of its own peculiar state of facts and circumstances. After all, the test is, what would an ordinarily prudent person have done under the circumstances as they then appeared to exist? Can we say that all reasonable minds would reach the conclusion that plaintiff failed to exercise due care to avoid this collision? We think not. Plaintiff had a right to assume, in the absence of notice to the contrary, that defendant would not put this dusty, gray colored truck on the highway after dark without displaying a red light on the rear thereof. If the truck had been lighted, the jury might well have drawn the reasonable inference that plaintiff would have been able to avoid striking it.'

This identical question was urged in the case of Arps v. City and County of Denver, 82 Colo. 189, 257 P. 1094, in which case all the authorities from other jurisdictions here presented, except those decisions subsequently announced and which are similarly conflicting, were Before the court, and there we determined to follow the rule as announced in Murphy v. Hawthorne, supra. Some of the later decisions supporting this rule are Tresise v. Ashdown (1928) 118 Ohio St. 307, 160 N.E. 898, 58 A.L.R. 1476; Morehouse v. Everett, 141 Wash. 399, 252 P. 157, 58 A.L.R. 1482 and note; Johnson v. Auto Interurban Co., 141 Wash. 694, 250 P. 353; Id., 139 Wash. 132, 245 P. 920; Powell v. Schofield (1929) 223 Mo.App. 1041, 15 S.W.2d 876; Parenteau v. Parenteau (R.I. 1931) 153 A. 872; Moyer v. Vaughan's Seed Store (1926) 242 Ill.App. 308; Mostov v. Unkefer (1927) 24 Ohio App. 420, 157 N.E. 714; Williams v. Frederickson Motor Express Lines (1930) 198 N.C. 193, 151 S.E. 197; Hickerson v. Jossey (1929) 131 Or. 612, 282 P. 768, 283 P. 1119; Ross v. Gearin (1930) 145 Okl. 66, 291 P. 534; Stanger v. Hunter (1930) 49 Idaho 723, 291 P. 1060; McMoran v. Associated Oil Co. (1927) 144 Wash. 276, 257 P. 846; Indianapolis Glove Co. v. Fenton (1929) 89 Ind.App. 173, 166 N.E. 12; Sawdey v. Producers' Milk Co., 107 Cal.App. 467, 290 P. 684; Owens v. Iowa County, 186 Iowa 408, 169 N.W. 388; Waynick v. Walrond (1930) 155 Va. 400, 154 S.E. 522, 70 A.L.R. 1014; Coca Cola Bottling Co. v. Shipp (1927) 174 Ark. 130, 297 S.W. 856.

The A.L.R. report of the Waynick Case contains a very comprehensive list of cases supporting the rule that failure to drive within the range of vision is negligence as a matter of law, and notwithstanding which the court held such questions were for the jury.

It is to be noted that in Coca Cola Co. v. Shipp, supra, the court originally determined that the plaintiff was guilty of contributory negligence as a matter of law, following Lauson v. Town of Fond du Lac, supra, and upon rehearing reversed its position announcing that the rule stated therein was too broad, and that the better rule was that announced in the case of Murphy v. Hawthorne, supra.

Since the establishment of the two rules, the ownership and use of automobiles and motor-driven vehicles have increased tremendously, and numerous cross-continental, inter and intra state highways have been laid out, improved, and perfected. In some states certain portions of these highways, commonly termed speedways, have been set aside for exclusive automobile travel.

Improved highways tend to increase vehicular traffic and commercial transportation of passengers and freight by bus or truck. Short haul motortrucking at night in the vicinity of our larger cities and towns has grown tremendously, as also the consequent menace of colliding with such trucks when not properly lighted. Traffic congestion, especially within the environs of large cities, has become a problem awaiting solution.

Automobiles have undergone radical changes and improvements tending toward greater safety for both driver and pedestrian, for example, four-wheel brakes, nonskid tires, and windshields affording wider vision.

Having in view all of these circumstances and others which might be mentioned, and that seldom, if ever, two accidents involve identical facts, it seems to us that it would be illogical and unwise to...