Yockey Trucking Co. v. Handy, 17090
| Decision Date | 02 November 1953 |
| Docket Number | No. 17090,17090 |
| Citation | 262 P.2d 930,128 Colo. 404 |
| Parties | YOCKEY TRUCKING CO., Inc., et al. v. HANDY. |
| Court | Colorado Supreme Court |
Myron H. Burnett, Denver, for plaintiffs in error.
H. W. Seaman, Conrad L. Ball, Loveland, for defendant in error.
The parties are here in reverse order of their appearance in the trial court. We will refer to the parties as they there appeared, or to Yockey Trucking Company, Inc., as Yockey, and to the driver of its truck as Bowker. Defendant in error will be referred to as plaintiff.
Plaintiff's complaint was in two counts; the first to recover damages for the wrongful death of her husband, Ramon B. Handy, who was killed in an accident involving plaintiff's Chevrolet Sedan and a cattle truck owned by defendant Yockey, and operated by its employe, Bowker; the second count was to recover damages to the Chevrolet automobile sustain in the accident. Plaintiff charged as acts of negligence on the part of defendants that they stopped the tractor-truck in the nighttime on a traveled portion of the highway without placing flares to warn others using the highway, and without giving warning of the presence of said truck on the highway; in backing said truck on to a public highway from a private driveway without taking due precautions to warn others on the road, and in operating said truck in such a manner as to create a dangerous and hazardous condition on a public highway.
Defendants, by their answer, denied negligence on their part and alleged that Ramon B. Handy was guilty of contributory negligence; that the proximate cause of Mr. Handy's death and the damage to plaintiff's car was the sole negligence of Ramon B. Handy. The issues were tried to a jury and its verdict returned in favor of plaintiff against defendants for $11,131. From the judgment entered on the verdict the defendants bring the cause here for review by writ of error.
The record discloses that at about 6:20 P.M. on February 26, 1952 Ramon B. Handy, deceased husband of plaintiff, was driving a Chevrolet automobile, belonging to his wife, in an easterly direction on U. S. Highway No. 34, some five miles from the town of Loveland, Colorado. This highway is about 37 feet wide, including the shoulders of the road, at the place where the accident occurred. Bowker was the driver and operator of a transport tractor and trailer belonging to Yockey. The tractor and trailer were 59 feet in length. During the late afternoon of February 26, 1952 the transport was loaded with thirty-two head of cattle at the Schmer farm, and was backed north out of the driveway of that farm into and across Highway No. 34, which runs east and west between Loveland and Greeley, Colorado. Just prior to the accident in which Mr. Handy lost his life, the transport was being maneuvered across the highway in order to get it into position to proceed east on the highway. While the tractor was stopped, headed south, the rear-end of this equipment was about two feet south of the center of the highway. Mr. Handy was driving the Chevrolet easterly along the south half of the highway, and his auto collided with the rear part of the trailer. There was a three feet-four inch clearance between the bottom of the trailer and the highway. The Handy automobile passed through the three feet-four inch clearance underneath the trailer. The record discloses that the truck and trailer were equipped with the lights required by statute, which lights were burning, with the exception of a side marker light on the upper right-hand corner of the rear of the trailer, with which light the trailer was not equipped at the time of the accident. However, the only light on the trailer which was in the direct lane of the eastbound traffic was one rear light at the bottom of the side of the trailer. No other warning was given. Bowker had been engaged in his maneuvering to get the tractor and the trailer in position on the highway for some twelve or fifteen minutes prior to the collision, due to the fact that the gateway into the Schmer farm was only 14 1/2 feet wide. It appears in evidence that the Schmer property was a bad and dangerous place to get in and out, especially for long conveyances, and this was known to Bowker.
At the conclusion of plaintiff's evidence, defendants moved for a directed verdict and renewed the motion after defendants had presented their case. Rulings on those motions were reserved until after the verdict. In each instance counsel for Yockey contended that the evidence showed without conflict that Ramon B. Handy was guilty of contributory negligence as a matter of law, and that his negligence was the proximate cause of the accident, and that the negligence, if any, of Yockey and Bowker was a remote and not a proximate cause of the accident.
It is also contended by counsel for plaintiff in error that the trial court erred in giving the jury as part of Instruction No. 6, the following:
'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.'
The objection to this portion of the instruction urged by defendants' counsel is, not that it incorrectly states the law,...
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