Opinion
Oct. 25, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ronald F. Flader, Denver, for plaintiff-appellant.
Scott Clugston, Greeley, for defendant-appellee.
COYTE, Judge.
Plaintiff appeals from a judgment entered on a jury verdict for the defendant and against the plaintiff in a suit for damages resulting from a vehicular accident.
The accident, which involved four vehicles, occurred on May 5, 1969, on Lincoln Avenue just south of the intersection with Twelfth Street in Loveland, Colorado. Lincoln Avenue is a paved two-lane street with parallel parking lanes on each side and running in a north-south direction. All the vehicles involved were proceeding in a northerly direction. At the time of the accident there was a light rain and the surface of the road was wet and slippery. The first two vehicles were passenger cars; the third vehicle was a pickup driven by the plaintiff; the fourth vehicle was a pickup driven by the defendant. The lead car stopped to allow south-bound traffic to pass before making a left turn. Each of the first three vehicles were struck from behind. There is conflict in the testimony as to the sequence of the collisions, but defendant does not deny striking the rear end of plaintiff's vehicle. Plaintiff's truck came to rest at an angle with the front end off to the right in the east parking area.
Plaintiff contends that the court erred in failing to direct a verdict on the issue of defendant's liability. Plaintiff further asserts that the court erred in failing to include the amount of damages prayed for in the instructions to the jury. We affirm the judgment of the trial court.
Since the trial court ruled out the issue of contributory negligence by the plaintiff, there was a rebuttable presumption that defendant was negligent in striking the rear of plaintiff's vehicle. Iacino v. Brown, 121 Colo. 450, 217 P.2d 266. See Colorado Jury Instructions 11:11. If competent evidence in rebuttal is presented, the issue of negligence becomes a question of fact to be resolved by the jury as trier of the facts.
As stated in Denver Tramway Corp. v. Burke, 94 Colo. 25, 28 P.2d 253:
'Ordinarily a driver who collides with a car ahead of him, going in the same direction, is negligent but not always so. Surrounding facts and circumstances are always relevant and material and may throw an entirely different light on the question.'
The record contains testimony that the defendant was driving at a moderate speed several car lengths behind the plaintiff and looking forward just prior to the accident. There was also testimony that the plaintiff did not signal his stop in any way and that the defendant braked as soon as he realized that the gap between them was closing. There was conflicting testimony regarding the abruptness of the stop executed by the driver of the second car and regarding the sequence of the collisions. The issue then arises as to whether the conduct of defendant when confronted with these circumstances was that of a reasonably prudent man.
In deciding a motion for a directed verdict, the court must consider the evidence in the light most favorable to the non-moving party, and negligence and proximate cause are to be determined by the court as a matter of law only in the clearest of cases where the facts are undisputed and reasonable minds could reach but one conclusion. Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928; Lee v. Missouri Pacific Railroad Co., 152 Colo. 179, 381 P.2d 35. Under the circumstances of the present case, material facts were in dispute and there was evidence to rebut the presumption of negligence. The court did not err in submitting the issue of defendant's negligence to the jury.
In view of our decision on the issue of liability, we need not discuss plaintiff's alleged error in regard to the instruction on damages but merely mention that the court's instruction was in conformity with Colorado Jury Instructions 2:1, which specifically provides that the statement of the case should not state the amount of damages prayed for by any party.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.