In our view, it is not possible to infer negligence from these facts. There is simply no basis for concluding that Francis was or was not negligent. See, e.g., Yeager v. Lathrop, 28 Colo. App. 44, 48, 470 P.2d 609, 611 (Colo.Ct.App. 1970). Further, proof that an accident occurred alone is not enough to establish negligence.
[7,8] Finally, the plaintiff has the burden of proving negligence by a preponderance of the evidence. See Letts v. Iwig, 153 Colo. 20, 384 P.2d 726 (1963) (plaintiff's burden not sustained by mere conjecture); Yeager v. Lathrop, 28 Colo. App. 44, 470 P.2d 609 (1970). After specific jury findings, and denial of the plaintiff's motion for a directed verdict based upon the above standard, it becomes especially difficult for an appellate court to reverse these determinations by looking at the cold transcript. It is the duty of the appellate court to carefully examine the record for evidence to support the judgment of the trial court.
Since the solatium damage cannot be awarded until there is a finding of the defendants' liability, and liability cannot attach unless the defendants are at least 51% at fault, the trial court did not err in requiring a finding that the defendants be found at least 51% at fault in order for the plaintiff to recover. See Yeager v. Lathrop, 28 Colo. App. 44, 470 P.2d 609 (1970) (if negligence and non-negligence equally probable then plaintiff's burden of proof not sustained). Under broad principles of statutory construction, if a general provision conflicts with a special provision, the special provision shall prevail as an exception to the general provision unless the general provision is the later adoption and the manifest intent of the General Assembly is that the general provision prevail.
Because the evidence weighed evenly, the hearing officer erred in finding against the driver, and thus, the district court did not err in reversing the revocation. See Yeager v. Lathrop, 28 Colo. App. 44, 470 P.2d 609 (1970). Judgment affirmed.
1980); Colo. J.I. 3:1 (2d ed. 1980). See Yeager v. Lathrop, 28 Colo. App. 44, 470 P.2d 609 (1970). In this case, the trial court determined that the Insurance Commissioner had not established by a preponderence of the evidence that A P's valuation methods were wrong in determining the amount of surplus and, thus, accepted A P's figures without requiring A P to establish by a preponderance of the evidence that there was in fact a sufficient surplus.
The burden of proof of negligence rests on the plaintiff and where the evidence presents no more than an equal choice of probabilities, it is not sufficient to meet the burden. Yeager v. Lathrop, 28 Colo.App. 44, 470 P.2d 609; Widefield Homes, Inc. v. Griego, 160 Colo. 225, 416 P.2d 365; Safeway Stores, Inc. v. Rees, 152 Colo. 318, 381 P.2d 999. The trial court was correct in its conclusion that the evidence presented was insufficient to submit to a jury.