Stahl v. Cooper, 15869.

• Decision Date: 12 January 1948
• Docket Number: 15869.
• Citation: 188 P.2d 894,117 Colo. 445
• Parties: STAHL v. COOPER.
• Court: Colorado Supreme Court

188 P.2d 894

117 Colo. 445

STAHL v. COOPER.

No. 15869.

Supreme Court of Colorado, en Banc.

January 12, 1948

Error to District Court, City and County of Denver; Joseph J Walsh, Judge.

Action by Rita C. Cooper against J. F. Stahl, doing business as Park Hill Plumbing Co., as Park Hill Plumbing & Heating Co., and as Park Hill Plumbing, Heating & Appliance Co., to recover for injuries sustained when plaintiff was struck by defendant's truck. Judgment for plaintiff and defendant brings error.

Affirmed.

BURKE C.J., dissenting.

Wolvington & Wormwood and Donald F. Clifford, all of Denver, for plaintiff in error.

Harold B. Wagner and Carl A. Wyers, both of Denver, for defendant in error.

STONE Justice.

The parties appeared in reverse order in the trial court, and we shall refer to them as there appearing. Plaintiff and her husband, James F. Cooper, while walking north along the east side of Franklin street in the city of Denver, and crossing Sixth avenue shortly after noon on a clear day, were struck by a panel delivery truck being driven west on Sixth avenue by defendant's agent. Defendant here seeks reversal of unfavorable judgment below upon two grounds:

1. That plaintiff failed to sustain her burden of proof by proving negligence on the part of defendant. Under the facts disclosed by the record it appeared that neither plaintiff nor her husband saw or was aware of the approach of the truck which hit them or knew of the cause of their accident. The driver of the truck did not testify, and there was no eyewitness to testify as to the driver's negligence. However, there was other substantial evidence as to that fact, including evidence that plaintiff and her husband were crossing the highway within a crosswalk at the end of a block at an unregulated intersection with consequent right of way over defendant's truck, and there was evidence as to tire marks, distance traveled by the truck after the accident damage to the truck, and injury to plaintiff and her husband, sufficient to support a finding of excessive speed, defective brakes, or careless driving. This evidence was sufficient to require submission of the issue of negligence to the jury.

2. That plaintiff was guilty of contributory negligence as a matter of law. Sixth avenue, where the accident occurred, is in the residential district, is approximately 42 feet wide from curb to curb and carries two parallel streetcar tracks. Plaintiff and her husband testified that when they reached the south curb each looked carefully in both directions and saw no approaching traffic that the pavement was uneven and required care in walking upon it; that they had crossed this street many times and that they took from 25 to 35 seconds of time to cross it; that after...