107 P.2d 246 | Colo. | 1940
THE parties appear here in the same relative positions as in the trial court and we will herein refer to them by name or as plaintiff and defendants. Under the verdict of a jury in a justice of the peace court, plaintiff recovered judgment for $250 damages for injury to his automobile resulting from a collision with the car of defendants. Defendants appealed to the county court wherein upon a trial to the court without the intervention of a jury, a judgment for defendants was rendered. Plaintiff prosecutes this proceeding in error to review the latter judgment.
From the record it appears that preceding the collision the two automobiles were being driven at moderate speeds in the same direction along highway 131 in Routt county, the car of plaintiff being in advance of that of defendants. Upon overtaking plaintiff's car Mrs. Morrow sounded her horn and proceeded to pass on the left. In so doing she drove off the gravel surface of the roadway onto the shoulder of loose dirt, whereupon her car slid into the road ditch, of slight depth, in which it remained for a distance of about forty feet and then proceeded across the road diagonally to the right side thereof where the cars collided. Plaintiff's car was knocked off the highway, down a steep bank and was practically demolished. In the area involved the road was straight and nearly level. The gravelled surface was at least seventeen feet in width, and the inside shoulder about one and one-half feet wide. To the left of the road the ditch was shallow; to the right was a *542 steep declivity extending downward for at least forty or fifty feet.
[1] As appears from the opening statement of counsel for defendants, there of course being no written pleadings, the defenses were a denial of negligence, unavoidable accident, and contributory negligence of plaintiff. The trial court made written findings of fact and concluded therefrom, specifically and generally, that plaintiff was guilty of contributory negligence and on this ground denied recovery. Counsel for defendants here largely rely for affirmance on the proposition that findings of fact by the trial court are conclusive. Such is not the rule where there is insufficient evidence to sustain them. Denver Rio Grande R. R. Co. v. Morton,
[2, 3] It further may be observed, as the findings intimate, that these witnesses jointly inspected the situs of the accident and the uncertainty in the recollection of the first in no way would impair the certain testimony of the latter. Neither Mrs. Morrow nor any of the occupants of her car so much as claimed that when she started around the plaintiff's car it was on the wrong side of the road. No witness for either side stated that when the Morrow car was passing, plaintiff changed his course so as to "force" defendants' car off the road. The findings continue: "The testimony of plaintiff * * * that * * * he is afflicted with heart disease * * * undoubtedly accounts * * * for his failure to heed the passing signal and of losing control of his own car." We are unable to find anything in the evidence transcribed to suggest that plaintiff lost control of his car, at least not until it was knocked completely off the road and *544
rolled down the sidehill by the impact of the collision. Plaintiff testified that after hearing the horn of the Morrow car he did not turn further to the right for the reason that there was ample room on his left for the Morrow car to pass. The statutory rules specifically pertinent to the situation here involved, are subdivisions (a) and (b) of section 196, chapter 16, '35 C.S.A., which read as follows: "(a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle." "(b) * * * the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle." Under statutes generally similar to ours, it has been held that where two automobiles are traveling in the same direction the one in front has the superior right and may maintain this position if there is sufficient space on its left to enable the approaching car to pass safely and conveniently. Mark v. Fritsch,
We are satisfied that the evidence adduced below does not sustain the specific findings of the court nor support the general conclusion that plaintiff was guilty of negligence, contributory or otherwise.
[4] Since, in the ordinary sense, contributory negligence implies negligence on the part of the defendant and can exist only as a co-ordinate or counterpart thereof, we might assume logically that to reach the conclusion expressed, the trial court must have first decided that the defendants primarily were negligent, and remand the cause solely for the determination of the amount of plaintiff's damage. However, in view of our uncertainty, hereinabove expressed, as to the precise extent of the trial court's conclusion, we are of the opinion that the interests of justice best would be served by a retrial of the cause which accordingly is remanded for that purpose.
Judgment reversed and cause remanded.
MR. CHIEF JUSTICE HILLIARD, MR. JUSTICE OTTO BOCK and MR. JUSTICE BURKE concur.
MR. JUSTICE FRANCIS E. BOUCK, MR. JUSTICE YOUNG and MR. JUSTICE BAKKE not participating. *546
