The plaintiff brought this action to recover judgments for the death of her husband and personal injuries growing out of an automobile-truck accident in southwestern Colorado. Judgment was in faVor of the plaintiff on both claims. The principal grounds for reversal are that there was insufficient evidence to show negligence in the operation of defendant’s truck and that the driver of the car in which the plaintiff was riding was guilty of contributory negligence as a matter of law. 1
The accident occurred on a hard-surfaced highway on a clear day, shortly before 11:00 o’clock in the forenoon. The highway runs generally in a south *332 east-northwest direction, and for convenience we shall refer to it as east-west. Immediately prior to the accident, plaintiff and her husband were traveling in an easterly direction in a Hudson automobile, and were approaching the crest of a hill which obscured a view of the highway beyond the crest in both directions. Near the top of the hill, on the south side, were substantial improvements, including grain elevators and warehouses.
Defendant’s vehicle, which was a tractor-trailer combination outfit, fully loaded with grain, with an overall length of sixty feet and a total weight of 74,000 pounds, was proceeding in a westerly direction on the right side of the highway, and, when within approximately one hundred feet of the crest of the hill, made a left turn to enter upon the premises south of the highway. The driver of the truck testified that in making the left turn, the tractor portion of the truck proceeded at an angle across the east bound lane of traffic. That prior to making the turn he did not observe an approaching automobile from the west. That he was in low gear and was driving from three to four miles per hour when he started to make the left turn. That when he was about four or four and one-half feet into the east bound lane of traffic he still saw no vehicle approaching from the west and was about to continue to cross the highway when he observed a car approaching from the west, about one hundred feet away. At that time he applied his brakes in order to stop, leaving the remainder of the road for the oncoming car. He said that in his opinion the impact between the cars took place at about the center of the left lane of traffic “a little more or a little less”. He observed the oncoming car “trying to cut to the right but not having much luck at it”. He stated that the left front bumper of the Hudson car struck the left front bumper of the truck twelve or fourteen inches from its end. The impact ripped the left front tire of the truck and the axle was badly bent backward. The front end of the truck was moved some distance to the left by the impact, but not the trailer. The left side of the Hudson car was demolished. It came to a stop about seventy-five feet beyond the point of impact. The marks, on the highway indicated that the point of impact may have been about two feet from the south edge of the pavement. The evidence varied to some extent as to the distance which the force of the impact moved the front end of the tractor laterally. One witness said the skid marks showed a lateral movement of about one foot and the vehicle moved ahead about eight feet after the impact, and that he did not observe any brake marks left by the trailer. The driver of the truck and a highway patrolman estimated that the front end of the tractor was pushed to the left about eight feet, but the tractor was moved very little by the impact. The import of the driver’s testimony is that he was at a stop at the time of the collision. A photograph indicates that the rear wheels of the tractor, which was twenty feet in length, were at or beyond the center of the east bound lane of traffic and not far from the point of impact. The front end of the trailer was well across the left side of the highway after the collision. The tracks of the Hudson automobile showed that it began to swerve to the right when about eighty feet away from the turning tractor, and barely missed avoiding it entirely. The evidence varies as to the distance that the drivers of the two vehicles could have seen each other. It is clear that either driver could have seen the other vehicle, or a portion of it, a considerable distance away.
Where fair minded persons may form different opinions and draw different conclusions or inferences from facts, the question of negligence, contributory negligence and proximate cause is for the jury. Every inference fairly deducible from the evidence is to be drawn in favor of the judgment. Yockey Trucking Co. v. Handy,
The Supreme Court of Colorado has said that driving on the left side of the road is presumptive evidence of negligence. Ankeny v. Talbot,
The defendant urges that the testimony of the plaintiff shows that the driver of the Hudson car was guilty of contributory negligence. Her testi *334 mony .was that her husband- was driving at a speed of fifty to fifty-five miles per. hour; that she was not giving particular attention to the road, and that when she, first observed the truck she estimated that it was about one hundred feet away and appeared to be blocking the entire-highway; She said that, to the best of her recollection there was nothing that would have prevented her husband from-seeing the truck before she did. Plaintiff wa,s very severely injured by the collision and unconscious for a considerable-length of time thereafter. She said her recollection stopped with the first sight of the truck. We find nothing in her testimony- that would establish contributory negligence as a matter of law,' nor is there- any merit in the contention-, that the undisputed physical evidence, conclusively establishes that the Hudson, car was being driven at a high, reckless and unlawful rate of speed which was-the proximate cause of the collision. There is evidence that the Hudson was. being driven at a greater rate of speed than that testified to by the plaintiff. Whether the Hudson was being driven at a negligent rate of speed was a question for the jury.
The defendant also urges that, assuming that the speed of the Hudson was fifty to fifty-five miles per hour, the driver, under those circumstances, had he been watching and observing the road as he is required to do, could have seen-the truck in ample time to stop or turn off the highway and avoid the collision. Assuming this to be true, the driver of the truck could also see the oncoming car before he made the left turn. Under the circumstances, the question of contributory negligence was properly presented to the jury. We may not overlook the fact that when vehicles are meeting and passing on open highways, we are dealing with high speeds, short distances, and split seconds of time. A vehicle turning to the left on a highway has very few feet to travel and, even at slow speed, is into the opposite lane of traffic in a fraction of a second. There are so many factors that may enter into the problem that it is impossible to make accurate mathematical calculations as to time or distance. Such calculations, at best, are speculative and usually present questions-for a jury to resolve. As a general proposition, whether negligence was the proximate cause of an accident, or was caused by the concurrent negligence of both parties, is for the jury. Amos v. Remington Arms Co.,
■ At a point three to four hundred feet west of the crest of the hill, the Colorado Highway Department had erected a highway sign which read: “Trucks entering the highway.” This sign was on the right side of the road and obviously-, was for the purpose of warning east bound traffic that trucks, at some distance ahead, might be entering upon the highway from the south side. It would give no warning that a vehicle which east- bound traffic was meeting would make a left turn, and has no part in this case.
Colorado Rev.Stat.1953, Chapter 13-4-42, provides in part:
“(2) No vehicle, in overtaking and passing another vehicle or at any other time, shall be driven to the left side of the roadway under the following conditions:
“(a) When approaching the crest of a grade or on a curve in the highway when the driver’s view along the highway is obstructed within a distance of 750 feet.”
This 'statute was included in the Court’s instructions, with the statement that the jury was not at liberty to consider traffic regulations as negligence unless it was believed from a preponderance of the evidence that the violation was the proximate cause of the accident or materially contributed as a proximate cause of the accident. Objection was made 'to the instruction on the ground that there was no evidence that the statute was applicable. The Colorado Courts have not construed this section. It is quite plain, however, that its purpose is to restrict traffic to its proper lane if the view ahead is obstructed by a grade or curve. It requires traffic to stay in -its lane if the *335 view is obstructed by a grade or a curve for a distance of 750 feet. Had the truck turned to the left side of the highway to pass a vehicle which it had overtaken, there could have been no doubt as to the applicability of the statute. Under the conditions named in the statute, the prohibition is not limited to turning to the left of the center of the road when overtaking and passing another vehicle, but also prevents such movement at “any other time”. It may be that the Colorado Legislature intended that this provision was to apply only to vehicles which might turn to the left of the center of the highway for any reason and continue up the grade, and was not intended to cover left turns. The plain words of the statute, however, include a left turn, but we do not believe that it is necessary to construe the meaning of the statute as the instruction was not prejudicial to the defendant. The Court did not instruct that a violation of the statute was negligence per se. The effect of the instruction that a turn, in violation of the statute, was not actionable unless it was the proximate cause of the injury, is the law of the road under the facts of this case.
Finally, it is contended that the court erred in refusing to admit in evidence certain exhibits and in refusing to permit a witness to testify, which exhibits and witness were not referred to and included in a pre-trial order. Rule 16, Fed.Rules Civ.Proc., 28 U.S.C.A. provides a pre-trial procedure designed to expedite and simplify the trial of cases, It contemplates an order which will recite the action taken at the pre-trial conference. Without objection, the order in this case listed the witnesses and the exhibits which each party expected to use at the trial. The order made provision for additional witnesses and exhibits by either party, upon notice. The defendant sought to introduce certain exhibits and use the testimony of a witness, neither of which was named in the pre-trial order. The rule provides that “such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” 3 No amendment to the order was sought, and no showing other than a statement made by counsel that he thought the witness had been named by the plaintiff, was made why the order was not complied with by giving notice of a desire to use additional exhibits and witness. The matter was within the discretion of the trial court and the record discloses no_ abuse of that discretion or manifest injustice,
Judgment affirmed.
Notes
. A pro-trial order stated the contentions and theories of the parties as follows: “Plaintiff contends that defendant’s truck was negligently driven and turned in such a manner as to completely block the highway on the crest of a grade, that said truck was negligently turned into the path of the car in which plaintiff was riding and that the driver of said truck violated the motor vehicle laws of the State of Colorado in so doing, Defendant contends that the deceased, Kenneth G. Scrivener, was driving at an excessive and illegal speed over the crest of a hill, that there was no negligence on the part of the defendant or defendant’s driver, Homer H. Smith, and that the accident was caused by the sole negligence or contributory negligence of the deceased, Kenneth G. Scrivener.”
. In describing ids actions, tlio truck driver said: “I pulled out onto the highway and headed west up towards the elevator on top of the hill, and by the time I got almost to where I needed to turn left the car that I had seen way down the hill had caught, up with me and the road was clear in front. I looked in my mirror to check with the traffic coming from behind. I knew there was one car there and there was another one when I looked in the mirror coming up and he pulled in behind the other car, leaving tlio road clear there. So I started my turn and got approximately 4 feet, 4 and a half, over the center of the road to the left, still nothing coming, and I •was looking out into the gravel driveway where I was turning out and all at once this ear came over the hill there and just — I didn’t have time to get out of the way, as slow as I was going. The only thing to do was to stop, leave the remainder of the road for the car coming to meet me. And by the time — I figured just about by the time I hit my brake and the clutch was the time of the impact (snapping finger).”
He was also asked where on the highway the impact took place, and answered: “Well, I would say near the center of the left side of the road, possibly a little more or a little less, but my opinion would be about the center of the left lane.”
. In Berger v. Brannan, 10 Cir.,