Weng v. Schleiger, 17209

Decision Date09 August 1954
Docket NumberNo. 17209,17209
PartiesWENG et al. v. SCHLEIGER et al.
CourtColorado Supreme Court

Bruce Ownbey, Wolvington & Wormwood, Forrest C. O'Dell, Denver, for plaintiffs in error.

Albert P. Fischer, Fort Collins, Ward H. Fischer, Fort Leonard Wood, Mo., Kenneth H. Gross, Fort Collins, for defendants in error.

HOLLAND, Justice.

Weng, one of the plaintiffs in error, was an employee of the other plaintiffs in error who were operating a copartnership under the name of 'Bates and Sons,' which partnership was engaged in the business of livestock hauling. These plaintiffs in error were defendants in the trial court and we will herein refer to them by name or as defendants.

On August 14, 1949, Weng, the employee, had been sent by the defendants with a truck to a ranch northwest of the City of Longmont to get a load of nineteen cattle for delivery in Denver; when returning with the load of cattle the truck was involved in an accident at the northern limits of the City of Longmont. Those claimed to be injured in this accident were John Schleiger, Mary Schleiger, his wife, and Ronald Schleiger, a minor, who were in an automobile struck by the truck belonging to defendants.

The 21st day of June 1950, John and Mary Schleiger, for themselves, and as next friend for Ronald Schleiger, filed their complaint in damages containing four causes of action. This complaint was dismissed for want of prosecution on April 1, 1952. September 29, 1952, Mary Schleiger moved to have the case reinstated and for leave to file an amended complaint in which John Schleiger, the husband and father, was not named as party plaintiff. This motion was granted. In the first cause of action in the amended complaint it was alleged that Weng was in the employ of the defendants, and that on August 14, on Highway No. 87, in Boulder county, he negligently, unlawfully and carelessly drove a truck and trailer owned by the defendants into an automobile owned and operated by plaintiff and her husband and as a result, their automobile was damaged to the extent of $2,000. As a second cause of action, it is alleged that John Schleiger, husband of plaintiff, and father of Ronald, was permanently injured, suffered great mental and physical deterioration, as a result of which, Mary Schleiger lost the support and companionship of her husband, John, to her damage in the sum of $50,000. In the third cause of action was an allegation of the temporary and permanent injury of plaintiff Mary Schleiger, to her damage in the sum of $50,000. The fourth cause of action contained an allegation of the injury and damage to the minor, Ronald Schleiger, in the sum of $50,000, and for expenses incurred and to be incurred on the minor's behalf in the sum of $5,000.

A motion to strike certain parts of the amended complaint was denied and defendants answered, making the obvious admissions and a general denial of all other allegations.

April 16, 1953, trial was begun to a jury of six, which returned its verdict in favor of plaintiff Mary Schleiger in the sum of $8,000, together with interest from June 21, 1950; and a verdict in favor of the minor son in the sum of $10,000, with interest from June 21, 1950, on which verdicts judgment was entered after a motion for new trial was overruled. To reverse this judgment the cause is brought to our Court by writ of error.

On the day of the accident, at about the hour of 11:30 o'clock A.M., an automobile, to which a trailer was attached, was being driven south on Highway No. 87 at the northern limits of the City of Longmont. This automobile had been brought to a stop to make a left-hand turn to the east on a graveled street, and before making the turn the driver had to wait for north-bound traffic to pass. While so standing, another automobile stopped behind this first one, and finally a third car, which was being driven by John Schleiger, accompanied by Mary and the minor son, Ronald, stopped behind the two vehicles just mentioned, and while so standing, the truck loaded with cattle, owned by defendants, was driven by Weng into the rear of the Schleiger car, resulting in the claimed damages. It seems to be disclosed by the evidence that Weng immediately jumped off the truck; took out away from the scene of the accident; and was gone some little time. Plaintiffs claim that they saw the truck approaching from behind, and tried to signal the driver to stop. The Schleiger family were taken to a hospital, and. without detailing the injuries at this point, it is sufficient to say that all of the medical testimony discloses that there were no permanent injuries to any of the persons involved in the accident.

An eyewitness was standing in a used car lot near the point of the accident and on the trial testified that the two automobiles immediately behind the first car that was stopped at the intersection, had just passed the truck and had cut into the line of traffic when the accident occurred. This was denied by the occupants of the second car and the Schleigers. A courtesy patrolman promptly arrived on the scene and investigated the accident. At the trial he testified as to the conditions he found and stated that the driver of the truck told him he had looked in another direction and did not see the car in front of him. At this point, during the examination of this witness, counsel for plaintiff, over objection, was permitted to ask if he recalled anything else about the accident, at which time counsel held a whispered conversation with the witness in the presence of the jury, after which the witness testified that Weng, the driver of the truck, started to run away from the scene because he was scared. The witness then was excused, to obtain a copy of the report he had made at the time of the accident. When he later was recalled, he made a blackboard diagram of the situation and testified that the truck traveled sixty-nine feet after the impact, pushing the Schleiger automobile ahead of it, and also car No. 1, which apparently was pushed off the side of the road by the Schleiger vehicle. The...

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  • Stucker v. Chitwood, 17580
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    ...v. Miller Trucking Co., Inc., 743 F.2d 601 (8th Cir.1984); Buchanan v. Brandt, 168 Colo. 138, 450 P.2d 324 (1969); Weng v. Schleiger, 130 Colo. 90, 273 P.2d 356 (1954); Turbert v. Mather Motors, Inc., 165 Conn. 422, 334 A.2d 903 (1973); Gringer v. Dattilo, 81 Ill.App.2d 244, 225 N.E.2d 408 ......
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