Opinion
Aug. 18, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 237
Walberg & Pryor, Peter W. Pryor, Denver, for plaintiffs in error.
Weller, Friedrich, Hickisch & Hazlitt, William H. Hazlitt, Denver, for defendant in error.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiffs in error, Glen Chambers and the Continental Oil Co., were co-defendants in the trial court and will be referred to as the 'Chambers defendants' or 'Chambers"; an additional co-defendant and cross-claimant, one Weber, will be referred to by name. Defendant in error, Fischer, was plaintiff below and will be referred to as such, or by name.
Fischer sued all defendants for damages arising from an automobile accident occurring at the intersection of U.S. Highway 6 and a county access road serving the town of Vail, Colorado, on February 23, 1967, at approximately 10:30 p.m. Fischer was a guest passenger in a vehicle driven by Weber, which he alleged was forced off the highway at that intersection when a truck driven from the south by Chambers pulled into the intersection in front of it.
U.S. 6, at the time and place of the accident, was an undivided blacktop east-west highway with two lanes for each direction of travel. The posted speed limit in the area was 45 miles per hour. Additionally, signs were present advising westbound through traffic, not exiting for Vail, to keep to the right in the northernmost lane. The county road to and from Vail intersected U.S. 6 from the south, and was regulated by a stop sign.
To the east of the intersection was a dip in the highway which, according to some evidence, may have hidden westbound vehicles from the view of those stopped at the county road stop sign. This dip, however, was located more than 1,000 feet to the east and accordingly, visibility of westbound vehicles for this distance from the stop sign was unimpaired.
Chambers, driving a Continental Oil Company pickup truck, was traveling north on the county road and, according to testimony, had stopped at the stop sign for U.S. 6 for from six to ten seconds before moving onto the highway to turn west. He looked first to the east and then to the west; then he proceeded slowly to cross the eastbound lanes of the highway and turn left into the westbound lanes of travel. Precisely how far he had entered into the westbound lanes at the time of the accident was in controversy. In the meantime, Weber and Fischer were traveling west on U.S. 6. Although they intended to remain on the highway, Weber was driving in the left-hand turning lane near the center line of the highway rather than in the right-hand westbound lane designated for through traffic. He had not seen the signs routing 'through' traffic to the far right lane. He estimated his speed as he approached the intersection to be approximately 45 miles per hour, while the excluded testimony of a state patrolman put it at 55 miles per hour.
As Weber reached a point approximately 100 yards east of the intersection, he noticed Chambers' truck, initially stopped at the stop sign on the county road, begin to cross the road, and he removed his foot from the accelerator. Almost immediately, however, it became obvious to Weber that the truck was going to pull onto the highway in front of him. He hit his brakes, turned to the right to avoid colliding with the truck, and blew his horn. He missed the truck, but his car skidded into a ditch along the edge of the highway and hit a small embankment, causing serious head injuries to Fischer. Chambers, in the meantime, stopped his truck within two to three feet of the point where Weber's car had passed it.
Based upon this evidence, the trial judge directed a verdict against the Chambers defendants as to Fischer, ruling that their negligence was a proximate cause of his injuries. He allowed the issue of Chambers' negligence and Weber's contributory negligence on the latter's cross-claim to go to the jury which found for Chambers.
On appeal, the Chambers defendants contend the trial court should not have directed a verdict against them on the issue of their liability as to Fischer because there were disputed facts as to the cause of the accident. Among other things, they contend Weber could have been found by the jury to have been negligent in (1) exceeding the speed limit; (2) failing to drive his vehicle in the far right-hand, through-travel lane; and (3) not taking proper action to avoid the Chambers' truck when he saw it pulling into his path. From these cumulative facts, they assert the jury could have concluded that Weber's acts were the sole proximate cause of Fischer's injuries. We disagree.
In reviewing the problems presented by this case, we must keep in mind that we actually have two actions before us; one concerns the issues of negligence and contributory negligence as between the drivers of the two cars (Weber v. Chambers) and the other concerns a claim by an innocent passenger in one of the vehicles to whom no negligence, imputed or otherwise, is claimed as against the alleged negligence of the drivers of both cars (Fischer v. Weber and Chambers').
Chambers' argument, and authorities cited in support thereof, would be valid if this case involved solely a resolution of the liabilities flowing between Chambers and Weber. Bennett v. Hall, 132 Colo. 419, 290 P.2d 241. Moreover, we find that the trial court properly allowed resolution of those liabilities to go to the jury. This case, however, concerns a third party, Fischer, who sued all defendants involved as joint tortfeasors. That Chambers was negligent is clear. His only escape from liability to Fischer, therefore, would be to present facts sufficient to show an efficient intervening cause superseding their negligence and becoming the sole proximate cause of the accident and Fischer's injuries.
After a careful review of the record, we hold that reasonable men must conclude, even looking at Chambers' evidence in its most favorable light, that Chambers' acts were at least one proximate cause of plaintiff's injuries; that is, 'but-for' their negligence, there is no likelihood that Fischer would have been injured. Under these circumstances, any alleged negligent acts of Weber were certainly foreseeable by Chambers, and do not serve to exonerate him from liability as to Fischer. Chartier v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044.
The Chambers defendants also assert as error the trial court's refusal to allow a highway patrolman to render an opinion as to the approximate speed of the Weber vehicle at the time its brakes were applied. They assert that a proper foundation for this evidence, under the criteria established in Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229; Atencio v. Torres, 153 Colo. 507, 385 P.2d 659; and Bridges v. Lintz, 140 Colo. 582, 346 P.2d 571, was laid; and that therefore the trial court erred in refusing to admit it. Assuming, for purposes of argument, that the patrolman was competent and properly qualified to render an opinion, and that his testimony was admissible, the court's refusal to admit it was not, under the circumstances of this case, reversible error. The offer of proof made by the Chambers defendants was that the officer would testify that the speed of the Weber vehicle was approximately 55 miles per hour. Although this testimony, as well as that of another witness that Weber's speed may have been as high as 60 miles per hour, might indicate negligence on Weber's part, any such negligence not imputable to Fischer would not have exonerated the Chambers defendants from their acts of negligence with regard to Fischer. Admission or lack of admission of this particular testimony, therefore, would have had no material effect upon the outcome of the lawsuit, since the trial court still would have been justified in its direction of verdict as to the liability of the Chambers defendants for injuries occurring to plaintiff Fischer.
The error alleged, if any, was not prejudicial. Buchanan v. Brandt, Colo., 450 P.2d 324.
The Chambers defendants also assert error in the instructions given by the trial court, and the applicability of those instructions to the evidence presented. After a careful review of the record, we rule that there is no reversible error in this regard. There was ample admissible evidence to justify the instructions given, and the jury was properly apprised of the law to be applied. Since the Colorado Jury Instructions have now been adopted in this state, and since they adequately cover the instructions contested, we do not believe a discussion of the reasons for our conclusions as to the alleged error in instructions would be of any significant aid to either the parties involved in this action or to the practicing Bar.
Judgment is affirmed.
COYTE and ENOCH, JJ., concur.