Opinion
April 6, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Wormwood, Wolvington, Renner & Dosh, William P. DeMoulin, Denver, for plaintiffs in error.
Bruno & Bruno, Frank A. Bruno, Denver, for defendants in error.
DWYER, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This is a negligence action for the recovery of damages. The case was tried to a jury. At the close of the evidence, the court directed a verdict in favor of the plaintiffs on the issue of liability and submitted only the question of damages to the jury. Verdicts were returned against both defendants in favor of plaintiff Virginia M. Holley in the sum of $10,000 for personal injury and in favor of William M. Holley in the sum of $500 for property damage. The defendants, appearing here as plaintiffs in error, seek reversal on the ground that the court erred in directing verdicts on the issue of liability.
Plaintiffs' claims arise from a collision which occurred on June 25, 1968. Plaintiff Virginia Holley was driving the family sedan in an easterly direction on 104th Avenue in Adams County at or near its intersection with Grant Street and the Valley Highway. She stopped behind a long line of cars which had stopped ahead of her. While she was in this stopped position, the defendant Rex L. Mather, driving his automobile in the same direction, and in the same line of traffic, ran into the rear of plaintiffs' vehicle, causing physical injuries to Virginia Holley and damage to the automobile.
It is not asserted that Mrs. Holley was negligent in stopping as she did. Plaintiffs established a prima facie case of negligence when they proved that the defendant Rex Mather struck the rear of their stationary vehicle. Defendant Rex Mather thereupon had the burden of showing that the collision was not caused by his negligence. Bartlett v. Bryant, 166 Colo. 113, 442 P.2d 425; Eddy v. McAninch, 141 Colo. 223, 347 P.2d 499; Lacino v. Brown, 121 Colo. 450, 217 P.2d 266. To exonerate himself of negligence, Mather claimed a sudden and unforeseeable failure of his brakes. Colorado recognizes the rule that the operator of a motor vehicle is not negligent if he has done all that would be expected of a reasonably prudent person and a sudden failure of brakes, not reasonably foreseeable, occurs and causes a collision. Bartlett v. Bryant, Supra; Daigle v. Prather, 152 Colo. 115, 380 P.2d 670.
Mather testified that his brakes had worked properly prior to the collision. He said that he was driving within the speed limit and that when he saw the plaintiffs' vehicle he applied his brakes. He thought that he would be able to come to a normal stop; however, although he depressed his brake pedal to the floorboard, he was unable to stop. Rex Mather's testimony was corroborated by a witness who was driving behind him. Also, the mechanic who repaired Mather's car testified that he discovered a small hole in a line in the hydraulic system. He testified that this puncture would permit the brake fluid to escape in two or three seconds, and that the brakes would not operate without the fluid in the system. The plaintiffs vigorously attacked defendants' claim of brake failure and produced evidence tending to discredit Rex Mather's testimony.
But, for the purpose of determining whether the question of brake failure should be submitted to the jury, only the defendants' evidence and any legitimate inference to be drawn therefrom is to be considered. The credibility of the witnesses and the weight of the evidence is for the jury. Panion v. Crichton, 144 Colo. 170, 355 P.2d 938, and Parker v. City and County of Denver, 128 Colo. 355, 262 P.2d 553.
Plaintiffs also argue that defendant Rex Mather was negligent as a matter of law in failing to maintain his brakes in good working order and in failing to take evasive action to avoid the collision. The Supreme Court has held to the contrary in ruling that such questions must be submitted to the jury. In Bartlett v. Bryant, Supra, the Court stated:
'While the plaintiffs argue otherwise, it cannot be held that defendant's admitted failure to apply or otherwise test his brakes for a distance of one mile preceding the collision, or that his failure to use the emergency brake upon discovering the sudden peril, constitutes negligence as a matter of law. Whether these failures to act, considered in the light of all the circumstances, departed from a reasonably prudent standard of conduct was a question for submission to the jury.'
In the present case the trial court should have submitted the issue of the liability of Rex Mather to the jury.
The liability of Sharon M. Mather rests only on evidence that she was a co-owner of the car driven by her husband, Rex. In Lee v. Degler, Colo., 454 P.2d 937 (decided after the trial of this case) it was held that where the defendant wife is not the head of the household, her bare legal title alone is insufficient to justify the application of the family car doctrine. Accordingly, if on retrial no evidence other than co-ownership of the automobile by defendant Sharon Mather is offered to establish her liability for the negligence, if any, of her husband, the court should direct a verdict in her favor.
The judgment is reversed and the cause remanded for a new trial.
COYTE and PIERCE, JJ., concur.