Winterberg v. Thomas
| Decision Date | 07 July 1952 |
| Docket Number | No. 16768,16768 |
| Citation | 246 P.2d 1058,126 Colo. 60 |
| Parties | WINTERBERG v. THOMAS. |
| Court | Colorado Supreme Court |
January & Yegge, Richard D. Hall, Denver, for plaintiff in error.
Philip J. Carosell, Felix D. Lepore, Denver, for defendant in error.
We will herein refer to the parties as they appeared in the trial court, where plaintiff in error was defendant and defendant in error was plaintiff.
The complaint was based upon a collision between a motorcycle ridden by plaintiff and an automobile driven by defendant. The accident occurred at the intersection of Grant street and Forest Drive in the City and County of Denver on May 12, 1950. Plaintiff sought to recover damages for personal injuries sustained in said collision, and alleged that defendant's negligence was the proximate cause of the accident and resulting injuries. Defendant denied that negligence attributed to him by plaintiff, and alleged that the injuries and damage sustained by plaintiff were proximately caused or contributed to by plaintiff's own carelessness.
Trial was to the court without a jury and resulted in judgment for plaintiff in the sum of $7,500, together with interest and costs. Defendant seeks reversal of the judgment by writ of error.
It is important in considering the issues to visualize the physical circumstances at the scene of the accident. Grant street is a one-way street going south. Forest Drive is a two-way narrow street on the south side of Cherry creek running northwesterly and southeasterly. Speer Boulevard is on the north side of Cherry creek paralleling Forest Drive. At the intersection of Speer Boulevard and Grant street, traffic is controlled by traffic lights. Similar traffic controls govern the movement of traffic at the intersection of Forest Drive and Grant street.
That portion of the evidence concerning which there was no dispute, was to the effect that plaintiff was riding a motorcycle in a northwesterly direction on Forest Drive and defendant was driving his automobile south on Grant street. At the time of the collision plaintiff's motorbike was across the center line of Grant street in the intersection and on the right, or north, side of the middle line of Forest Drive. The accident occurred at approximately 6:15 A. M. and plaintiff did not regain consciousness until approximately 8 1/2 hours thereafter. He remained in the hospital for 12 days, and serious permanent injuries were sustained by him as a result of the collision. There was no dispute concerning the sequence in the operation of the traffic control signals at the intersections involved in the case.
The specification of points upon which plaintiff in error relies chiefly for reversal of the judgment is that the court erred in finding that defendant ran through a red light and that plaintiff was proceeding through the intersection on the green light. It is asserted that the overwhelming weight of the oral testimony and the undisputed physical facts establish exactly the contrary and therefore plaintiff was guilty of contributory negligence which precluded recovery.
In order to make clear the evidence upon which this argument is based, we set forth the substance of plaintiff's testimony concerning the accident. He testified that he drove his vehicle north on Logan street from Ellsworth street to Forest Drive, a distance of several blocks. Logan street is a one-way street for northbound traffic and runs parellel to Grant street one block to the east. The intersection of Logan street and Forest Drive is controlled by traffic signals similar to those at the intersection of Grant street and Forest Drive. Upon arriving at the intersection of Logan street and Forest Drive he brought his vehicle to a stop and waited for the light to turn green for northbound traffic across said intersection. When this light turned green he made a left turn on Forest Drive and proceeded in a northwesterly direction.
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The above quoted testimony was given upon cross-examination. His statement upon direct examination was that the lights were green as he entered the intersection. He further said:
One other witness testified to the effect that at the time of the collision plaintiff had the green light, but the evidence of this witness was highly incredible and the trial court in its findings eliminated from consideration the testimony of that witness. Relatives of the plaintiff testified that at the Denver General Hospital, a few days after the accident defandant appeared to offer blood for a transfusion to plaintiff and that he then stated, in explaining how the accident happened, that he had run through a red light. The making of any such statement was vigorously denied by defendant. He stated at the scene of the accident, to the officers who arrived almost immediately, that, 'The light was green and I started across and when the bicycle came to my left and ran the red light, I hit it.'
The findings of the trial court include the following statement:
'In this case, the evidence is in hopeless conflict, but the court has followed it very carefully, and even disregarding the testimony of Mrs. Finnicum and disregarding the testimony of the admissions made by the defendant the court, nevertheless, feels that the defendant was guilty of negligence in three particulars, * * *.'
The court found that defendant was guilty of driving faster than the speed limit of 25 miles per hour; that he ran through a red light; and that he was guilty of reckless driving.
On behalf of defendant three eye-witnesses to the collision were called. Two of them, Mr. Rupp and Mr. Patterson, were riding in a car following that which defendant was driving. They were employees of the Gates Rubber Company and were on their way to work. They testified positively that defendant's automobile entered the intersection of Grant street and Forest Drive with the green...
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Prestige Homes, Inc. v. Legouffe
...by application of mathematical principles cannot be judicially noticed unless such conclusions are irrefutable); Winterberg v. Thomas, 126 Colo. 60, 246 P.2d 1058 (1952) (unquestioned laws of mathematics are judicially noticeable); Sierra Mining Co. v. Lucero, 118 Colo. 180, 194 P.2d 302 (1......
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Quintana v. City of Westminster, 01CA0999.
...Inc. v. Legouffe, 658 P.2d 850 (Colo.1983). For example, unquestioned laws of mathematics are judicially noticeable. Winterberg v. Thomas, 126 Colo. 60, 246 P.2d 1058 (1952). However, conclusions reached by application of mathematical principles cannot be judicially noticed unless such conc......
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Chapman v. Redwine
...138 Colo. 144, 330 P.2d 530. The following language of this court, taken from the opinion of Mr. Justice Moore, in Winterberg v. Thomas, 126 Colo. 60, 246 P.2d 1058, is applicable to the facts disclosed by the "A court cannot accept as true that which the indisputable evidence demonstrates ......
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Legouffe v. Prestige Homes, Inc., 80CA0664
...shows such findings to be erroneous, an appellate court may not permit the conclusion based thereon to stand. See Winterberg v. Thomas, 126 Colo. 60, 246 P.2d 1058 (1952). A scientific proposition accepted as valid in the appropriate scientific community may be judicially noticed, Bieser v.......
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Proposed Colorado Rules of Evidence
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Effective Use of Judicial Notice
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