Opinion
Dec. 31, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
In action by plaintiff, which had hired defendant to backfill foundation, to recover on theory of negligence and breach of contract after foundation collapsed as defendant's agent was performing the backfilling, issues whether defendant was negligent and whether plaintiff was contributorily negligent were for jury.
Page 1004
Richard W. Bangert, Wheat Ridge, for plaintiff-appellee.
Madden & Strate, P.C., Allan F. Van Horne, Denver, for defendant-appellant.
PIERCE, Judge.
Plaintiff, Action Craft Builders, Inc., hired defendant, Strasburg Sand and Gravel, Inc., to backfill a foundation for a residential building which had been poured three days previously. While Strasburg's agent was performing the backfilling, the foundation collapsed. Action Craft's complaint alleged negligence and breach of contract. After both parties had submitted evidence to a jury, the trial court directed a verdict in favor of Action Craft as to Strasburg's liability for negligence, and the parties stipulated as to the amount of damages.
Although we need not detail it here, the record reveals that there was considerable conflicting evidence, shown on at least 25 pages of the transcript, regarding Strasburg's alleged negligence and Action Craft's alleged contributory negligence. Therefore, direction of a verdict on the issue of liability was error, McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778; Rennels v. Marble Products, Inc., 175 Colo. 229, 486 P.2d 1058, and we remand for retrial of the liability issue, only.
Judgment reversed and the cause remanded for proceedings not inconsistent with this opinion.
COYTE and SMITH, JJ., concur.