Opinion
Feb. 14, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Auer & Manzanares, Douglass B. Auer, Denver, for plaintiff-appellee.
Ashen & Fogel, John F. Griebel, Denver, for defendants-appellants.
COYTE, Judge.
This is an appeal from a judgment entered by the district court in favor of the plaintiff-appellee for injuries sustained as a result of the negligence of the defendants-appellants in performing work on plaintiff's motorcycle.
On or about March 30, 1971, plaintiff took his motorcycle to defendants' place of business for defendants to install new mufflers and exhaust pipes.
After the installation had been made, plaintiff departed on his motorcycle. At the first stop sign after leaving defendants' shop, plaintiff noticed that something seemed to be wrong with the foot brake, but after testing the brake as best he could in a stopped position he was unable to ascertain whether the brake was malfunctioning. Plaintiff then proceeded down the street but was unable to slow the motorcycle in order to negotiate a turn because of the failure of the brake to function, and, as a consequence thereof, he had an accident resulting in personal injury to himself. Plaintiff filed suit against defendants, which resulted in a judgment in favor of plaintiff.
Defendants' sole claim for relief on appeal is that the court erred in not finding as a matter of law that plaintiff was guilty of contributory negligence. We disagree and affirm the judgment.
The brake on plaintiff's motorcycle was in good working condition when it was delivered to the shop for repairs and the installation of new exhaust pipes. No work was to be done on the brake. The new exhaust pipes were installed so as to obstruct the free movement of the foot brake when applied to stop the motorcycle.
The case was tried to the court without a jury. After hearing the evidence, the trial court found that the exhaust pipes were negligently installed on plaintiff's motorcycle; that as a result of the manner of installation there was interference with the brake which prevented plaintiff from operating his brake; that the negligent installation proximately caused the resulting injuries sustained by plaintiff; and that plaintiff was not guilty of contributory negligence.
Defendants contend that plaintiff was guilty of contributory negligence because, after he became aware that his brake was not functioning properly, he failed to discover the improper installation of the exhaust pipes on the motorcycle.
The trial court and not the appellate court is the trier of fact. Brewer v. Williams, 147 Colo. 146, 362 P.2d 1033. The trial court determined from conflicting evidence that plaintiff was free from contributory negligence. This finding cannot be disturbed on review unless manifestly erroneous or not supported by competent evidence. Briano v. Rubio, 141 Colo. 264, 347 P.2d 497. There was ample evidence to support the findings of the trial court.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.