Stahl v. Cooper

• Decision Date: 12 January 1948
• Docket Number: 15909.
• Parties: STAHL v. COOPER.
• Court: Colorado Supreme Court

190 P.2d 891

117 Colo. 468

STAHL v. COOPER.

No. 15909.

Supreme Court of Colorado, en Banc.

January 12, 1948

Rehearing Denied March 1, 1948.

Error to District Court, City and County of Denver; W. A. Black Judge.

Action by James F. Cooper against J. S. Stahl, doing business as Park Hill Plumbing Company, as Park Hill Plumbing & Heating Company, and as Park Hill Plumbing, Heating & Appliance Company, to recover for injuries sustained by plaintiff when struck by defendant's truck. To review a judgment for the plaintiff, defendant brings error.

Judgment reversed and case remanded.

Hays and Hilliard, JJ., 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 the reverse order in the trial court, and we will refer to them as there appearing. Plaintiff and his wife, Rita C. 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. The driver of the truck did not testify. Neither plaintiff nor his wife was aware of the approach of the truck nor knew the cause of the accident, and there was no other eyewitness. Plaintiff and his wife each testified that they were crossing the highway within a crosswalk at the end of the block which is an unregulated intersection. This is corroborated by the surrounding circumstances and there is no substantial contradiction. There was evidence of tire marks, distance traveled by the truck after the accident, damage to the truck and injury to plaintiff and his wife, sufficient to support a finding of excessive speed, defective brakes, or careless driving of defendant's truck. Sixth avenue is approximately forty-two feet wide from curb to curb and carries two parallel streetcar tracks. Plaintiff and his wife each testified that when they reached the south curb they 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; that after stepping off the south curb neither of them again looked either to the right or to the left, and that they had crossed both streetcar tracks and were about halfway between the last rail and the curb when the accident occurred. Defendant here seeks reversal of an unfavorable judgment.

We have considered and disposed of the first two grounds urged for reversal in our opinion in Stahl v. Cooper, Colo., 188 P.2d 894, which grew out of the same accident and was based on equivalent testimony.

It is urged in the present case that the court further erred in receiving in evidence a statement said to have been made by the driver of defendant's truck subsequent to the accident. A police officer, who was called to the scene of the accident and assisted in placing plaintiff and Mrs. Cooper in the ambulance for their removal to the hospital, testified that some ten minutes thereafter he interrogated the driver of defendant's truck, who was standing at the intersection corner, as to the accident, and this officer was permitted, over objection, to testify as to their conversation which was in substance that the driver stated that the pedestrians started to go one way and then another, and then they ran in the path of the truck and he hit them, and that he didn't know which direction they were walking previous to the accident.

Since the driver was not a defendant and had not been called as a witness, such statement was admissible, if at all, only as part of the res gestae. 'Res gestae are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants when narrating the events. What is done or said by participants under the immediate spur of a transaction becomes thus part of the transaction, because it is then the transaction that thus speaks.' Graves v. People, 18 Colo. 170, 32 P. 63, 65. Such a statement, if part of the res gestae, must be in the nature of an exclamation, rather than an explanation; it must be spontaneous and instinctive rather than deliberate. While the tendency is to broaden, rather than to restrict, the rule (Heg v. Mullen, 115 Wash. 252, 197 P. 51), and the determination as to admissibility in great measure rests in the discretion of the trial judge (Maynard v. Hall, 61 Ariz. 32, 143 P.2d 884, 150 A.L.R. 618), still we might be seriously concerned with the challenge here made if the evidence so elicited had proven prejudicial to defendant. No prejudice therein is demonstrated in defendant's brief and none is apparent to us. Harmless error is not ground for reversal.

It is further urged that the court, over objection, improperly instructed the jury with respect to the Denver traffic ordinances and the applicability of such ordinances, and in refusing properly to instruct the jury as to the pedestrian's duty in crossing the street.

In one instruction the court quoted the applicable provisions of the city ordinances entitled 'Pedestrians' Right of Way,' 'Lights and Brakes,' 'Reckless Driving,' and 'Careless Driving and Speeding.' The portion of the instruction referring to pedestrians' right of way is as follows:

'The operator of any vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at the end of a block, except at intersections where the movement of traffic is being regulated by police officers or traffic control signals or at any point where a pedestrian tunnel or overhead crossing has been provided.

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'It shall be unlawful for a pedestrian to cross a roadway at any point other than within a marked or unmarked crosswalk, on any street designated as a Thru Street, or on any street where the parking of motor vehicles is limited to one or two hours, as herein provided by this Ordinance. On other roadways within the City and County of Denver, a pedestrian crossing such roadway at any other point than within a marked or unmarked crosswalk, shall yield the right-of-way to vehicles upon the roadway provided that this provision shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of pedestrians.'

Following that instruction, the court gave a general instruction, Number 10, applicable to each of said ordinance provisions, to wit:

'The court further instructs the jury that whenever the violation of a city ordinance proximately causes injury, such violation is termed negligence per se, that is to say negligence in and of itself and you are instructed that if you find that the injuries of the plaintiff and of his wife, Rita C. Cooper, were brought about as the direct and proximate result of the violation by the defendant's employee of any of the provisions of the foregoing ordinances of the City and County of Denver, such violation renders the defendant liable to the plaintiff.' (Emphasis supplied.)

This instruction in itself is objectionable in that under it, in case the jury found that plaintiff's injury was the proximate result of the violation of an ordinance, 'such violation renders the defendant liable to the plaintiff,' even though plaintiff may have been guilty of concurrent contributory negligence, in which event defendant would not be liable. Injuries may be the result of several concurring proximate causes (Louisville & N. R. Co. v. Maddox, 236 Ala. 594, 183 So. 849, 118 A.L.R. 1318; Rider v. Syracuse Rapid Transit Ry. Co., 171 N.Y. 139, 63 N.E. 836, 58 L.R.A. 125; Prof. Joseph H. Beale, 33 Har.L.Rev. 633 at 639), and if an act of plaintiff is one of them, he can have no recovery. Under the rule that the instructions should be read together, it may be urged that it was cured by the subsequent instructions, in common form, as to contributory negligence and the law when both parties are at fault; but the positive declaration in the former instruction predicating absolute liability upon violation of an ordinance proximately causing injury is inconsistent with and contradictory of the subsequent instructions as to contributory negligence and fault of both parties, and likely to confuse the jury as to which should be followed. The quoted instruction, therefore, should have qualified liability by exception in case of contributory negligence.

Following the instruction above quoted is a definition of sidewalks and crosswalks; then the following instruction, Number 12:

'Reasonably construed, Section 15(a) of the Denver ordinance, giving a pedestrian the right of way means that when people are crossing a street at an intersection to which the provisions of the ordinances are applicable, and a motor truck is approaching the crossing at a speed and on a course such that either the pedestrian or the truck must alter speed or direction to avoid a collision, the driver of the truck must act so as to avoid running down the pedestrians and his failure to do so is a violation of the ordinances and constitutes negligence.'

It will be noted as to this instruction, given after the general instruction regarding all the ordinances, including that concerning pedestrian's right of way: First, that it singles out the right-of-way ordinance specially as though it were of extraordinary importance; second, that by this instruction if the jury found, as it doubtless did find, that plaintiff pedestrian was crossing within the crosswalk, then it was required to find defendant negligent regardless of the circumstances, for under its mandate 'the driver of the truckmust act so as to avoid running...