Opinion
Nov. 4, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
John A. Kintzele, Denver, for plaintiffs in error.
Sheldon, Nordmark & Bayer, Richard C. McLean, 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.
The parties appear here in the same order as they appeared at trial, and will be referred to by their lower court designations or by name. The matter on appeal is the jury's verdict against plaintiffs in an action arising out of a rear-end collision in which plaintiff Bernice Gonzales was injured when her car was struck from behind by one driven by defendant.
The collision in question occurred in clear weather at approximately 10:40 a.m., on August 31, 1965, on East 40th Avenue, near Race Street, Denver, just west of a point where a single railroad track crosses East 40th. Bernice testified that she was driving in the innermost of two eastbound lanes of travel on East 40th and had gradually slowed her vehicle by coasting, in gear, without signalling, preparatory to crossing the subject railroad crossing, because of 'chuckholes' present at the crossing. Her vehicle was struck from behind by defendant's vehicle at a point some 19 feet west of the crossing. She testified that when she had begun to slow, there were no vehicles behind her; and she was adamant in her testimony that she had not suddenly stopped.
Defendant testified that he had been following 25 to 30 feet behind Bernice at a speed of approximately 30 miles per hour when she suddenly, for no apparent reason and without signalling, stopped as she approached the railroad crossing, causing him to collide with her. He testified that he could not take evasive action because of the presence of other vehicular traffic.
Testimony as to the size of the alleged 'chuckholes' present at the railroad crossing, the necessity of stopping or slowing for them, and the resting places of the two vehicles after impact, was controverted.
On the controverted evidence, the jury by special verdict found both Bernice and defendant negligent, and denied recovery to each on their respective claims. Defendant does not appeal; plaintiffs do, however, contending that the court erred (1) in admitting the testimony of one of defendant's witnesses as to the necessity of stopping for the 'chuckholes'; and (2) in refusing to direct verdict in their favor on the issue of defendant's liability to them and their lack of liability to him.
I.
Plaintiffs first contend that the court erroneously allowed one of defendant's witnesses to respond to the question: 'Were (the chuckholes at the railroad crossing) such as to require you to stop in order to avoid them?', to which the response was negative, with the further explanation that he just went around them.
We perceive no error in permitting this question. The question was addressed to the witness personally, and simply called for a statement of his practice with regard to those particular 'chuckholes', with which he was familiar, and not for a conclusion on the ultimate issue of whether or not it was necessary for any or all drivers to stop for them. The witness was certainly qualified, having crossed that railroad crossing in the past, to state his practices while doing so. This testimony the jury could then take for what it was worth. A similar question had been asked and answered, without objection, previously in the trial when the defendant testified; so the particular testimony in question was merely cumulative.
There was no prejudicial error in this regard.
II.
Plaintiffs also contend that the trial court erred in not directing verdict in their favor on the issues of both defendant's liability to them and their lack of liability to him.
Suffice it to say, the law in this jurisdiction is clear that 'where the lead vehicle makes a sudden and abrupt stop under circumstances which a * * * jury might find to be unwarranted,' the jury can infer that the lead driver is contributorially negligent (Gaulin v. Templin, 162 Colo. 55, 424 P.2d 377), or negligent (Denver Tramway Corp. v. Burke, 94 Colo. 25, 28 P.2d 253). Whether any such stop is warranted or not is a factual matter for the jury's determination from the circumstances surrounding the case. Gaulin, supra.
We rule that the matters contested by plaintiff were properly allowed to go to the jury.
Further, since the jury's determination was made upon controverted evidence, we will not disturb it on review. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
Judgment is affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.