Opinion
June 30, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Robert L. McDougal, Denver, for plaintiffs in error.
Laurence A. Ardell, Pueblo, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
Plaintiffs sued Pioneer Construction Co., Inc., for personal injuries arising out of an automobile accident. This appeal is taken from a jury verdict in favor of such defendant and against the plaintiffs on the issue of liability.
It was admitted, and it was the position adopted by the trial court, that any contributory negligence on the part of the plaintiff Robert Montague, the driver of the automobile in which the plaintiffs were riding when the accident occurred, could not be imputed to the plaintiffs Zula M. Tobeck, Robert W. Montague, Jr., and Bobby Jones. It follows that if Pioneer Construction was negligent, as a matter of law, then the above three plaintiffs were entitled to a directed verdict on the issue of liability. The remaining plaintiff, Mavis Rae Montague, is the wife of Robert Montague and a joint owner of the vehicle involved in the accident. Whether any negligence on the part of Robert Montague could be imputed to her was a disputed question.
Briefly, the accident occurred as follows: Defendant was in charge of a highway construction project. The main highway was barricaded and traffic was being diverted to a temporary gravel road. Plaintiffs' vehicle approached the project from the south and, upon reaching the barricade, turned onto the temporary road. Franklin Price, an employee of the defendant, was driving a fully loaded Euclid truck down an incline from the main highway. As Price crossed the temporary road, the two vehicles collided, the left front fender of plaintiffs' vehicle striking the left rear of the truck. As a result of the collision, all of the plaintiffs sustained personal injuries.
The principal arguments urged by plaintiffs all rest upon a contention that Pioneer Construction Company was negligent as a matter of law, and that the trial court erred in submitting the issue of liability to the jury in this case.
We do not concur. There was ample evidence in this case indicating that the accident could have been caused by factors other than the negligence of Pioneer Construction Company. It has been consistently held in this jurisdiction that where evidence in an automobile accident case was such that reasonable men might reach different conclusions as to the issues of negligence and proximate cause such issues should be submitted to the jury. Scott v. Matsuda, 127 Colo. 267, 255 P.2d 403; Higgins v. City of Boulder, 105 Colo. 395, 98 P.2d 996.
In addition to the basic contention made by plaintiffs, they also contend that the trial court erred in admitting the testimony of one Francis E. Burton, who was an expert witness called by the defendant. Francis Burton, admittedly an expert in the field of accident reconstruction, was allowed to answer hypothetical questions concerning the speed of plaintiffs' vehicle prior to impact. Plaintiffs contend here that such testimony was inadmissible because Francis Burton never visited the scene of the accident nor inspected the vehicles involved in the collision. Most of the cases cited by plaintiffs with respect to this question are not in point in that they concern opinion evidence not given in response to Hypothetical questions, as is the case here. In propounding such questions to experts, counsel are not confined to facts admitted or absolutely proved, but may assume for the purposes of the question any statement of facts which the evidence tends to establish. Enyart v. Orr, 78 Colo. 6, 238 P. 29; Courvoisier v. Raymond, 23 Colo. 113, 47 P. 284; Jordan v. People, 19 Colo. 417, 36 P. 218.
Plaintiffs further argue, however, that Burton's calculations assumed a fact for which there was no evidence in the record; namely, a road grade of one or two per cent at the scene of the accident. The investigating police officer testified that the grade was about level at the scene of the accident. The grade assumed in the hypothetical question would actually result in a lower calculation of the speed of plaintiffs' vehicle. No prejudice resulted from the inclusion of such fact in the hypothetical question. Parenthetically, we note that this was generally true of all the facts assumed in the hypothetical questions posed to Burton. As we view them, they all embraced, from defendant's standpoint, evidentiary minimums, thereby resulting in maximum advantage to the plaintiff.
Judgment is affirmed.
COYTE and PIERCE, JJ., concur.