1. At the conclusion of the evidence, plaintiff's attorney tendered an instruction on contributory negligence which the trial court declined to give to the jury and proper exceptions were noted. The tendered instruction reads: "It is not enough to prevent plaintiff's recovery to show merely her negligence, if she was in fact negligent. It must have been the sole or contributing cause of the injury, without which it would not have happened." With reference to this tendered instruction, plaintiff's counsel state: "This brief and proper instruction as to the law is taken directly from the case of Arps v. Denver, 82 Colo. 189, at page 197, also reported in 257 P. 1094, citing the leading Colorado decisions and text authorities supporting this rule and proper instruction of law on the subject of contributory negligence." Counsel is mistaken in his statement that his tendered instruction was taken directly from Arps v. Denver, supra, because in that opinion the following appears: "At the close of plaintiff's testimony, the court granted a nonsuit on the grounds of contributory negligence.
* * *" See also Colorado and Southern Railway Co. v. Honaker, 92 Colo. 239, 19 P.2d 759; Arps v. City and County of Denver, 82 Colo. 189, 257 P. 1094; Montgomery v. Colo. Springs Interurban Co., 50 Colo. 210, 114 P. 659. [2] The following explanation of the emergency doctrine appears in W. Prosser, The Law of Torts § 33 at 172 (2nd ed. 1964):
Therefore, the court erred in directing the verdict on the question of liability. Gianarelli v. Safeway Stores, 157 Colo. 342, 402 P.2d 645; Arps v. Denver, 82 Colo. 189, 257 P. 1094. The plaintiff wife sustained a compression of her sixth cervical nerve in this accident and without question was injured.
In Daigle it was held that it was proper to give this instruction since it advised the jury that the selection of a particular course of conduct was not negligence in such an unforeseeable situation. Language supporting the giving of a similar instruction appears in Bird v. Richardson, 140 Colo. 310, 344 P.2d 957 (1959) and Grunsfeld v. Yetter, 100 Colo. 570, 69 P.2d 309 (1937) as well as in other Colorado cases which preceded them, such as Stocker v. Newcomb, 91 Colo. 479, 15 P.2d 975 (1932); Arps v. Denver, 82 Colo. 189, 257 P. 1094 (1927); Larson v. Long, 74 Colo. 152, 219 P. 1066 (1923); Lebsack v. Moore, 65 Colo. 315, 177 P. 137 (1918). Cudney urges further, however, that in the instant case this instruction should not have been given because Moore's evidence shows that he did not have time or the opportunity to make a choice between alternative courses of action in an attempt to avoid a collision.
The trial court properly submitted to the jury the questions of negligence of defendant and contributory negligence of plaintiff. Arps v. City and County of Denver, et al., 82 Colo. 189, 257 Pac. 1094; Colorado and Southern Railway Company v. Honaker, 92 Colo. 239, 19 P.2d 759; Robinson v. Belmont-Buckingham Holding Company, 94 Colo. 534, 31 P.2d 918. [4, 5] Objection is taken to the giving of Instruction No. 11 which reads as follows:
It is only in the clearest of cases when the facts are undisputed and it is plain that all reasonable men can draw but one inference from them, that the question is one of law for the court. Arps v. Denver, 82 Colo. 189, 257 Pac. 1094, (1927). Or, put another way if the question provokes debate among reasonable men, whether they agree, it is for the jury.
"In the instant case there was evidence upon all controlling questions from which different inferences might be drawn by men of integrity and intelligence. Under such circumstances the jury should be permitted to draw their own inferences from the evidence." In Arps v. City and County of Denver, et al., 82 Colo. 189, 257 Pac. 1094, the trial court directed a verdict. In reversing the judgment and ordering a new trial this court said in pertinent part:
There was sufficient evidence to justify submission of the case to the jury on the issue of defendants' negligence. Aros v. City and County of Denver, 82 Colo. 189, 257 Pac. 1094. The street was then under repair and the defendants could reasonably have anticipated that persons using the highway would proceed with great caution. It was open to the jury to conclude that it was not a reasonably foreseeable consequence of the acts of Grace that a driver would straddle the ridge and strike a large stone which was in the position here shown by the testimony. It was logical to anticipate that one in the position of plaintiff would see the stone and avoid it, and the failure of Grace to stop his grader and remove the stone did not constitute a violation of duty with respect to which reasonable minds could not differ.
Plaintiff contends that the policy of the law has been to delegate the determination of such questions as "negligence," "ordinary care," and "reasonable prudence" to the jury under proper instructions from the court. He cites as authority Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 417, 36 L. Ed. 485, and several other cases including Arps v. City and County of Denver, 82 Colo. 189, 257 Pac. 1094. This is true as a bald proposition of law but the rule is not applicable under the facts disclosed by the record here. Higgins v. Boulder, 105 Colo. 395; 98 P.2d 996, and other cases cited by plaintiff in support of this theory are inapplicable or have been misconstrued.
In other words, if it appears from the evidence that reasonable men might arrive at different conclusions as to whether the act complained of constituted negligence, the question is one of fact for the jury. Campbell v. English, supra; Arps v. City and County of Denver, 82 Colo. 189, 257 P. 1094; Lamb v. Missouri Pac. Ry. Co., 147 Mo. 171, 48 S.W. 659, 51 S.W. 81; Baker v. Westmoreland C. Nat. Gas Co., 157 Pa. 593, 27 A. 789, 791; Tacoma Ry. Power Co. v. Hays, 9 Cir., 110 F. 496, 499; Pennsylvania R. Co. v. Miller, 3 Cir., 99 F. 529, 531; Varela v. Reid, 23 Ariz. 414, 204 P. 1017. Varela v. Reid, supra, written by the late Justice Flannigan, discusses in a most thorough manner the limitation of a trial court in instructing the jury on contributory negligence under the provisions of our constitution.