DocketNumber: No. 14,379
Citation Numbers: 104 Colo. 545
Judges: Burke
Filed Date: 7/3/1939
Status: Precedential
Modified Date: 7/20/2022
delivered the opinion of the court.
These parties appear here in the same order as in the trial court. Plaintiffs in error, hereinafter referred to as plaintiffs, are the children and sole heirs of Fred R. Dwinelle, deceased, hereinafter referred to as Dwinelle. Defendants in error are hereinafter referred to as the
One winter morning in 1936 while Dwinelle, with the consent of Oox, was riding as a guest in the truck operated by Perry, a collision occurred between that truck and the motor-car operated by Finn, and Perry and Dwinelle were both instantly killed. Plaintiffs, alleging negligence on the part of Perry, as the agent of Cox, and Finn, as the agent of the company, brought this action against Oox and the company for damages in the sum of $5,000. Cox answered separately, denying negligence and placing responsibility on Dwinelle and the company. Finn and the company filed a joint answer, denying negligence and placing responsibility on Perry and Dwinelle. At the close of plaintiffs ’ evidence Cox moved for a nonsuit and that motion was overruled. Finn and the company moved for a directed verdict and that motion was granted. The cause proceeded as to Cox and the jury found for him. To review the judgments entered accordingly plaintiffs prosecute this writ. The eleven assignments go to the order directing a verdict for Finn and the company, certain rulings admitting and excluding testimony, the weight of the evidence, and an order striking from the record an affidavit of “proceedings in chambers,” hereinafter referred to as Exhibit A. The only instruction questioned is No. 22 which directed a verdict for Finn and the company.
Some further facts will clarify the picture and elucidate our disposition of the cause. This accident occurred about 8:40 A. M., February 8, when the temperature stood at approximately 20 degrees below zero. Perry was driving north on the public highway and Finn west on the railway. At the point of collision these intersect almost at right angles. One Marks, in a loaded truck, was following Perry and witnessed the catastrophe from a distance of 500 feet. Railway and highway are comparatively
We think the foregoing clearly establishes primary negligence on the part of the driver of the truck and absence of primary negligence on the part of Finn. That the former could and should have avoided this accident is too clear for question, and that Finn, up at least to the point where he last saw the truck, was within the law and acting as an ordinarily prudent person under the circumstances, is equally clear. We should add here that there is no positive evidence as to whether Perry or Dwinelle was in fact at the wheel of the truck at the time of the collision. All the presumptions ordinarily deducible from the record point to the conclusion that it was the former, and that the latter was not familiar with the vehicle or its operation. But since the conduct of the driver was so inconsistent with all that is disclosed concerning Perry’s duty, knowledge, skill, and experience, we can not say that the jurors were precluded from assuming that he must for the time being have relinquished his seat to his passenger. If that in fact occurred the claim of these plaintiffs for damages for primary or contributory negligence against either the company or Cox is foreclosed.
This relegates us to the single remaining major contention made by plaintiffs, i. e., last clear chance. It must be admitted that if the impending peril in which the parties found themselves was due entirely to the negligence of Perry and Dwinelle, and yet was discovered by Finn, or, in the exercise of reasonable care, ought to have been discovered by him, in time to avert the accident, the
Counsel for plaintiffs answer some of the foregoing assumptions of fact on the theory that certain of Finn’s undisputed testimony is “contradictory, obviously false and physically impossible.” We can only say that we find ourselves unable to concur in that denunciation.
The affidavit, Exhibit A, was inserted for the purpose of showing that the trial court sustained the motion for an instructed verdict under an erroneous theory of last clear chance. It was properly stricken, first, because, save in very unusual circumstances, not here apparent, these informal chamber conferences are not intended to be, and are not, properly a part of the record of the trial, and the participants should not be hampered in them by a consciousness that they may be made such by affidavit. Second, from the whole record we conclude that the trial judge held no such erroneous theory as the affidavit attributes to him. Moreover counsel for the company admit that the law of last clear chance is as counsel for plaintiffs here contend and as we have assumed.
Thus far we have considered only plaintiffs’ case against the company. Eecord, assignments, and briefs are largely devoted thereto. The case against Cox is treated in each as a side issue worthy of little consideration. On this branch nevertheless two errors are urged which require brief notice. First, the admission of the testimony of the witness Meade; and second, that the verdict is contrary to the evidence.
Meade testified that a short time before the accident Dwindle, who was divorced, had said, in substance, that if he wasn’t staying with Cox he didn’t know what he would do as his family had “turned him down.” Plaintiffs, relying upon the rule stated in 22 C. J., p. 216, section 179, and the construction given our applicable statutes (§§ 1, 2 and 3, c. 50, vol. 2, ’35 C. S. A.) in Hindry v. Holt, 24 Colo. 464, 51 Pac. 1002, insist that the admission of this statement was erroneous and highly prejudicial because the act is not a survival statute hence such
Plaintiffs’ right of recovery, if any, against Cox is limited by our guest statute, section 371, chapter 16, page 241, volume 2, ’35 C. S. A., which requires proof that the death of Dwinelle was intentional on the part of Perry, or caused by his intoxication, “or negligence consisting of a willful and wanton disregard of the rights of others.” Since the record discloses nothing from which Perry’s intention or intoxication could be presumed the question is, Was the evidence of Perry’s driving and “willful and wanton disregard” so conclusive as to foreclose a verdict to the contrary? We think not. Millington v. Hiedloff, 96 Colo. 581, 45 P. (2d) 937.
Countless authorities are cited and quoted in the briefs before us. We have examined these with care but find no occasion to analyze them here. They disclose no conflicts material to our conclusion and no substantial disagreements between counsel as to the law. They are not in accord in their application thereof to the facts of this case but that divergence arises wholly from their divergent interpretation of those facts. There is doubtless
The judgment is accordingly affirmed.
Mb. Chief Justice Hilliabd and Mb. Justice Bakke concur.