209 P.2d 917 | Colo. | 1949
THE parties appear here in the same order as they appeared in the trial court and will be referred to as plaintiffs and defendant.
The action is in tort for damages allegedly sustained by plaintiffs resulting from an automobile collision on U.S. Highway 87 in Boulder County, Colorado. The defendant by answer set up a general denial. At the conclusion of the evidence the defendant moved for a directed verdict upon the ground that as a matter of law the undisputed evidence proved that the defendant was not guilty of any negligence which could have contributed to, or was the proximate cause of, the accident. The motion for directed verdict in favor of defendant was granted and judgment entered accordingly. Plaintiffs seek review by writ of error.
On June 16, 1946, defendant, an experienced driver, was motoring north on U.S. Highway 87 at a point about three miles south of Lafayette, Colorado. Plaintiffs were occupants of the Swanson car which was traveling south toward Denver. There was a head-on collision between the two cars, the point of impact being ninety-two feet north of a railroad crossing. One, Ila J. Griffin, riding in the front seat of the Swanson car was killed, and plaintiff Blomberg sues for damages for wrongful death. Plaintiff Mooseberg, a passenger in the Swanson car, and plaintiff Swanson, the driver, were injured in said accident and seek damages on account thereof.
It was daylight when the accident occurred and no condition of weather or slickness of the highway is involved. Admittedly the collision occurred on the west side of the highway, the right rear wheel of defendant's car being two feet west of the center line thereof, and the left front wheel of defendant's car being about two feet from the west edge of the paved portion of the highway.
The defendant testified that upon crossing the railroad track, which she knew to be rough, the left front side of *363 her car dropped down with a thud; that the wheel of the car was wrenched from her grasp and her arm was then broken; and that after crossing the track she had no control over the car she was driving and no opportunity whatever to avoid the accident. After the collision the left front spring of defendant's automobile was found to be broken. This spring was unquestionably partially broken for some time prior to the accident creating a latent defect therein. Examination of the spring after the collision clearly showed an old partial break and a fresh break of a portion thereof. Defendant asserts that the evidence is undisputed, that the latently defective spring as a matter of law must have broken at the crossing, and that her car was placed on the wrong side of the road without negligence or fault on her part and because of circumstances entirely beyond her control. It is certain that the impact of the cars took place within between one and two seconds of the time defendant crossed the railroad track.
Plaintiffs insist that although the oral testimony of defendant is not disputed by other oral testimony, "Numerous questions of physical fact were in dispute. In fact there were incontrovertible physical facts that should have been resolved in favor of the plaintiffs," and argue that upon the question of negligence of the defendant different intelligent minds might honestly reach different conclusions from a consideration of all the facts and circumstances, and that there was sufficient dispute in the evidence to warrant a consideration by the jury. Plaintiffs urge that the jury should have passed upon the following questions: 1. Whether the speed of defendant's car was excessive. 2. Whether the spring broke at the crossing or at the time of the collision. 3. Whether the absence of skid marks disproved the contention of defendant that the broken spring caused her car to swerve sharply to the left at the time she passed over the railroad crossing. 4. Whether defendant was *364 negligent in failing to return to her own side of the road when she realized her peril.
There is but one question to be determined here and that is:
Was defendant's explanation of her presence on thewrong side of the road so conclusive under the circumstanceshere present that as a matter of law no logicalinference of negligence on her part could be drawn warrantinga verdict for the plaintiffs?
[1, 2] This question must be answered in the negative. It is of course fundamental that it is the sole province of the jury to determine issues of fact where there exists a conflict with regard thereto. It is also true that a court is not bound to accept a statement as true because there is no direct testimony contradicting it. In the case of Ward v. Atkinson,
In the more recent case of United Brotherhood ofCarpenters and Joiners of America, Local Union No. 55,v. Salter,
[3] In Phillips et al. v. Denver City Tramway Co.,
From Shearman and Redfield on Negligence (Rev. ed.) vol. 1, p. 111, § 42, we quote: "The question of negligence must be submitted to the jury * * * where there is room for difference of opinion between reasonable men as to the inferences which might fairly be drawn from conceded facts."
We do not consider this case to be one so free from contradicted evidence as to warrant the determination that as a matter of law there was no negligence on the part of defendant. It cannot be said with certainty that the left front spring of defendant's automobile broke at the railroad crossing rather than by the force of the collision of the cars. Reasonable and intelligent minds *366 might well infer that the defendant failed to take reasonable precautions in approaching a crossing known by her to be rough, and that by reason thereof her car was placed on the wrong side of the road. The physical facts surrounding the accident, including the absence of skid marks on the pavement, considered in the light of the evidence of witnesses, might give rise to a difference of opinion in the minds of reasonable men concerning the cause of the collision.
In Temple v. De Mirjian et al.,
[4] The plaintiffs, under the facts here present, had the right to a jury's determination upon the credibility of defendant's explanation and the facts concerning the cause of the collision, and the trial court erred in directing a verdict for the defendant. The judgment is reversed and cause remanded for further proceedings consistent with the views herein expressed.
MR. JUSTICE ALTER and MR. JUSTICE HAYS concur. *367