Opinion
Rehearing Denied Feb. 26, 1970.
Page 67
Howard Calder, Charles T. Flett, Arvada, for plaintiffs in error.
White & Steele, John E. Clough, Denver, for defendant in error.
ENOCH, 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 in the trial court and will be referred to as plaintiffs and defendant or by name.
This is an action to recover damages for personal injuries and property damage alleged to be the result of a rear end collision of two automobiles.
The accident occurred March 18, 1965 at approximately 5:00 p.m. near the intersection of 68th Avenue and Wadsworth Boulevard in the City of Arvada, Colorado. Wadsworth Boulevard was a paved street running north and south. 68th Avenue was then a gravel road running east and west. An apron of pavement extended 20 to 25 feet in either direction off Wadsworth Boulevard on 68th Avenue. Plaintiff and defendant were both headed east on 68th Avenue. Plaintiff had stopped on 68th Avenue at the stop sign or near the curb line at the intersection of Wadsworth Boulevard, and was waiting for traffic to clear before proceeding further. Defendant approached the intersection from the west, was unable to stop and slid into the rear of plaintiff's vehicle.
The evidence presented at trial disclosed that at the time in question the roads were generally slippery due to a recent snowfall. The defendant alleged that the conditions at the intersection (with particular emphasis on the paved apron) were extraordinarily bad, i.e. that 68th Avenue was snow packed, but the approach to the intersection where the accident occurred was very icy and covered with a light skiff of snow. She further alleged that this condition could not have been anticipated as the conditions of the gravel road up to that point were much better.
The police officer assigned to investigate the accident experienced the same conditions when he approached the intersection in the same direction as had the parties shortly before. The plaintiff and defendant had moved their cars by the time the officer arrived. The officer testified that he had no difficulty maneuvering on the snow covered area of 68th Avenue up to the approach to the intersection. At the approach to the intersection in trying to stop he slid to the pavement on Wadsworth before being able to stop. He stated that he did not know the ice was there and could not see it because of the snow covering. His testimony corroborated that of defendant in that the paved apron immediately before the stop sign was extraordinarily slick. He further testified that this condition could not have been anticipated given the general conditions of the roads elsewhere in the vicinity, and particularly, considering the condition of the gravel portion of 68th Avenue west of Wadsworth.
The case was tried to a jury which rendered a verdict for the defendant. The plaintiffs' appeal is based on two alleged errors: (1) That the trial court erred in failing to grant plaintiffs' motion for a directed verdict on the issue of liability for the reason that the uncontroverted evidence establishes the defendant's negligence as a matter of law and the jury could not properly find that the defendant was not negligent. (2) That the trial court erred in the giving of an instruction to the jury the language of which constitutes or is equivalent to an instruction on unavoidable accident which is no longer permissible in this jurisdiction.
I
There was some conflict in the testimony as to the conditions of the road at the intersection and as to the foreseeability of these conditions. There was also conflict as to length of the ice patch from Wadsworth Boulevard west on 68th Avenue. Since there were disputed questions of fact, as to the circumstances and conditions upon which negligence would be determined, it was a jury question. Elliott v. Hill, 148 Colo. 553, 366 P.2d 663. We find that there was sufficient evidence to present the issue to the jury and to support its verdict. Where there is sufficient evidence to sustain the trial court's (or jury's) findings, the reviewing court, on writ of error, is bound by the trial court's determination. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537. The trial court correctly denied defendant's motion.
II
Defendant's Instruction No. 10 is as follows:
'If you find from the evidence that the accident was caused by unforeseeable and uncontrollable circumstances which the defendant, Sue Metzger, could not reasonably anticipate, and if you further find that the defendant, Sue Metzger, otherwise acted as a reasonably prudent person under the circumstances then existing, you are instructed that Sue Metzger was not guilty of negligence, and your verdict must be for the defendant, Sue Metzger on the plaintiffs' Complaint.'
Plaintiffs claim that this instruction is tantamount to an instruction on unavoidable accident which may no longer be given in this jurisdiction. Lewis v. Buckskin Joe's, Inc. et al., 156 Colo. 46, 396 P.2d 933.
Defendant claims that Instruction No. 10 embodies her theory of the case and was therefore entitled to have the instruction submitted to the jury. Both the defendant and the police officer testified that the icy condition on the apron was not foreseeable and that there was no warning that once the condition was evident, i.e. when the car was on the ice, it was uncontrollable. Further, that they could not anticipate that the unusually slippery condition was present.
It was the defendant's theory and defense that such circumstances were unforeseeable, uncontrollable and could not have been reasonably anticipated. There was evidence, though some conflicting, that such circumstances did exist. We conclude that defendant was entitled to an instruction to that effect. That a defendant is entitled to have her theory presented to the jury if supported by the evidence is well established. Renell v. Argonaut Liquor Co., etc. et al., 148 Colo. 154, 365 P.2d 239; Denver City Tramway Co. v. Doyle, 63 Colo. 500, 167 P. 777.
Instruction No. 10 does not speak of an unavoidable accident and is not the unavoidable accident instruction which was ruled on in Lewis v. Buckskin, Supra. That case did not rule that all instructions setting forth a defendant's theory are no longer allowed. The 'sudden emergency' doctrine and an instruction on sudden emergency has been held to be proper in rear end accident cases where there was evidence to support that theory of defense. See Cudney v. Moore, 163 Colo. 30, 428 P.2d 81 (1967) ; Stewart v. Stout,
Ridley v. Young,We conclude that the trial court committed no error in giving Instruction No. 10.
Judgment affirmed.
DWYER and DUFFORD, JJ., concur.