Summary
In Vincent v. Martin, 91 Colo. 1-06, 11 P.2d 1089, it was said that the term "statutory allowances" includes "widow's allowance" because "There is no statutory allowance to a widow other than a widow's allowance."
Summary of this case from Maher v. KnaussOpinion
No. 12,402.
Decided April 4, 1932. Rehearing denied May 23, 1932.
Action for damages resulting from a collision between an automobile and a street car. Judgment for plaintiff.
Reversed.
1. TRIAL — Nonsuit — Appeal and Error. Where defendant's motion for a nonsuit is denied and it introduces evidence which supplies the defect in plaintiff's proof, no error can be assigned for failure to grant the motion.
2. APPEAL AND ERROR — Sufficiency of Evidence. In an action for damages resulting from a collision between an automobile and a street car, record reviewed, and there being no evidence of negligence on the part of defendant company the judgment for plaintiff is reversed.
3. NEGLIGENCE — Proof. Negligence is never presumed, but must be established by a preponderance of the evidence by the party alleging it.
Error to the District Court of the City and County of Denver, Hon. Frank McDonough, Sr., Judge.
Mr. W. A. ALEXANDER, Mr. D. D. KEIM, Mr. C. M. DRAPER, Mr. GERALD HUGHES, for plaintiff in error.
Mr. HARRY G. SAUNDERS, for defendant in error.
ALAMEDA Wells will be referred to herein as plaintiff, while the Denver Tramway Corporation, a corporation, will be referred to as defendant. Plaintiff, while a passenger in an automobile driven by her cousin, was injured in a collision between the automobile and a street car operated by one of defendant's employees. She brought suit, alleging negligence on the part of defendant in the operation of the street car, and, at the trial, judgment upon the verdict of the jury was rendered in her favor. Defendant prosecutes this writ, assigning numerous errors, only one of which we deem it necessary to consider.
The street car was traveling in an easterly direction, while the automobile was being driven in a westerly direction on Larimer street, upon which street there are two street car tracks. At the intersection of Larimer and Twenty-third streets, the street car was making a left hand turn so as to go to its destination which was northerly from the intersection. The street car was operated by one man who had brought the car to a full stop at the intersection to take on a passenger, and had then thrown the electric switch, and was proceeding in a northerly direction around the curve. When the front end of the street car had reached a point approximately even with the northerly rail of the second track, the collision occurred. At the close of plaintiff's evidence, a motion for a nonsuit was made and denied, and thereupon defendant offered its evidence, and, at the conclusion of all the evidence, defendant made its motion for a directed verdict, which was also denied. The evidence upon the question of defendant's negligence, as the same was given by plaintiff, who was the only witness called by plaintiff to testify with reference to the collision, was:
"Q. Just take the pointer, Mrs. Wells, and as nearly as you can show about where your car was in reference to the street, how you were going down there? A. This is the track here that turns on Twenty-third?
"Q. Yes ma'am? A. Well, we were coming down, of course I was coming down this track right here, and we were coming right on down to here, when it got right here just right at the track, just as I had to cross the track there was a flash of light flashed in my face and I looked up, just as that light flashed across my face I looked up and I heard that terrible crash, and that is all I knew until the ambulance came for me; and that happened right here at Larimer street and Twenty-third."
[The only mark on the exhibit to which plaintiff referred in her testimony is a cross mark at the point where the switch crosses the northerly track; however, it does show Larimer street to be ninety feet wide with a clear space of eighteen feet north of the point on the northerly track where plaintiff states that the collision occurred.]
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"Q. Prior to the flash of light which you have just testified to had you noticed the street car? A. I had seen the street car down the street yes.
"Q. If you can, point out to the jury about where the automobile was in which you were riding when you first saw the street car? A. Right here, this intersection.
"Q. The street intersection; that is supposed to be the curb lines here. A. We were just about, I will say I was about in the middle of the block before we got to Twenty-third street.
"Q. Where was the street car then? A. Well it was coming up along in this block on the other side of Twenty-third; I saw the street car coming but I thought no more about it, did not —
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"Q. Do you know whether or not the street car stopped at any time? A. That I could not say.
"Q. Did you hear any sound of any nature or description coming from the street car before this crash? A. No I did not.
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"Q. Would you say then that the motorman of that car sounded his gong or did not sound it? A. He did not sound it.
"Q. Why do you say that; how do you know that he did not? A. Well, because I know if he had sounded it or rung the bell as he should have we could have heard it; there was nothing to keep us from hearing that if he had sounded it.
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"Q. Did you see the motorman make any sign that he was going to turn? A. If I had seen that he would have probably avoided the accident.
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"Q. You were not looking at the street car however at the time or just prior to the time it was struck? A. No."
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Cross examination of plaintiff:
"Q. You only saw the street car then twice; first when you were between Twenty-third and Twenty-fourth on Larimer you saw the car some place on Larimer, is that right — or Twenty-second or Twenty-third, on Larimer? A. Yes.
"Q. And the next time you saw the street car was when you just saw the headlight flash in your face? A. That is right.
"Q. The lights were on on the street car, were they, all the time? A. Yes.
"Q. And they were on when the collision happened, that is, the headlights were on when the collision occurred? A. Yes.
"Q. Did you become conscious soon after the accident to know what the position of your truck or the street car was? A. Not at that time.
"Q. You do not know whether the street car moved on then or not do you? A. I knew nothing after it hit, after it was struck.
"Q. You do not know whether the street car was moving or standing still when the collision occurred? A. All I know is that I saw the flash of the light —
"Q. The only thing you know then, Mrs. Wells, about the actual collision is that you saw this flash of light and then the collision occurred? A. Yes.
"Q. And you know that that flash of light was the street car? A. Yes.
"Q. You do not know anything else about the accident? A. No."
Defendant's motion for a nonsuit was denied, and, if it chose to put on evidence which supplies the defects in plaintiff's proof, no error can be assigned for failure to grant a nonsuit. Alta Inv. Co. v. Worden, 25 Colo. 215, 218, 53 Pac. 1047; Big Kanawha Co. v. Jones, 45 Colo. 381, 386, 102 Pac. 171; Conner v. Sullivan, 84 Colo. 572, 573, 272 Pac. 623.
Defendant's evidence directly bearing upon the accident was:
Thomas R. Waldron, the motorman:
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"Q. So that you stopped at Twenty-third and Larimer? A. Yes sir.
"Q. Go ahead; talk as loud as you can. A. And on entering the curve I noticed the automobile crossing — coming up Larimer street going west, it must have been almost half a block back, and at the rate of speed he was coming, when he was in about a telephone pole away from me I stopped right here and was ringing the gong and at the rate of speed he was coming he come right on into the corner of the car right here, slipped over this track about a foot and a half and he was in the left corner of the front end of the street car.
"Q. Was your car moving or had it stopped? A. I stopped about 15 seconds when the car struck.
"Q. Was there lights on your car? A. Yes sir.
Cross examination of Mr. Waldron:
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"Q. And do you think that that car coming down there, that could see you stopped there, all your lights on, just deliberately ran into you? A. Yes sir.
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"Q. And when you stopped [witness had testified to stopping to take on passenger; turn the electric switch] of course you looked up the street before you turned in to see if there was any automobiles coming, didn't you? A. Yes sir.
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"Q. Do you know what the law is in regard to your turning off from a street to your left as far as traffic is concerned? * * * A. Well, ring the gong and extend the left arm.
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"Q. What do you have to do if there is some one coming and you see them? A. If they are close enough wait for them to pass."
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Mrs. Mattie E. Parkhurst was a passenger on the street car; she testified that the street car was in about the same. position indicated by plaintiff, the front end of the car being on the northerly track, and that the street car was stopped for a very short time before it was struck.
Ed Delaney was a passenger on the street car; he testified the street car stopped on the northerly tracks on Larimer street; that a short time before the accident the street car stopped to take on a passenger, and went slowly around the switch, and that the lights were burning on the street car when he boarded it.
Nellie Worthman was a passenger on the street car; she testified that the street car stopped before entering the curve to take on a passenger; that the street car was stopped at the time of the accident in about the position indicated by plaintiff.
Margaret Bush was a passenger on the street car; she testified that the car had stopped before entering the curve to take on a passenger; that it was stopped at the time of the accident and that the headlight on the street car was burning.
The evidence herein quoted and summarized was all the material evidence offered by either party with reference to the manner in which plaintiff's injuries were sustained. The ordinance of the City and County of Denver, if any such there is, requiring hand signals and the sounding of gongs and ringing of bells by motormen, when making turns, was not offered in evidence; and no ordinance with reference to rights of way was offered; so that, under the evidence here, the failure to do either, if such there was, could not be negligence per se.
[2, 3] Under the evidence in this case, we are led to ask, what is the negligence with which defendant is chargeable? and our answer is, none. The negligence which occasioned the injuries to plaintiff was solely that of the driver of the automobile in which she was a passenger, and the verdict of the jury finding defendant guilty of negligence finds no support in the record. Negligence is never presumed but must be proven by a preponderance of the evidence, by the one alleging it; and, in this respect, plaintiff wholly failed, and the court erred in denying defendant's motion for a directed verdict. Although not directly in point, but helpful in principle, see: Globe Indemnity Co. v. Stenger, 82 Colo. 47, 49 et seq., 256 Pac. 658; Atchison T. S. F. Ry. Co. v. Page, 76 Colo. 10, 11, 227 Pac. 840; Summers v. Denver Tramway Corporation, 43 F.2d 286, 287.
Judgment reversed with instructions to dismiss the action.
MR. JUSTICE BUTLER and MR. JUSTICE HILLIARD dissent.
MR. JUSTICE MOORE did not participate.