Opinion
July 7, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 758
Laura & James, Robert A. Carvell, Philip M. Kleinsmith, Colorado Springs, for plaintiffs in error.
Yegge, Hall, Treece & Evans, Wesley H. Doan, Denver, for defendants 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.
This is a negligence case in which the widow and minor children of the deceased claim that the defendants were negligent in not maintaining adequate rescue facilities on a reservoir. The parties appear in the same order as in the trial court. The defendants made a motion for a directed verdict at the close of the plaintiffs' evidence which was granted by the trial court, thereby taking the case from the jury.
The evidence which was presented showed that the defendants had leased the recreational use and facilities of Eleven Mile Reservoir to the State of Colorado for operation by the State Park and Recreation Department. During the regular recreation season, from May 1 to Labor Day, there were several park patrolmen on duty to maintain the camp grounds, enforce park regulations and patrol the reservoir. Fred White, one of the park patrolmen, was working beyond Labor Day on a special maintenance project.
On October 6, 1962, the deceased and his friend, Hanson, were fishing on the reservoir when about midday a storm developed causing the men to decide to cut their fishing trip short. In spite of this decision, they continued to troll near the middle of the lake for another hour and a half. During this time the wind continued to build up to about 40 m.p.h. and the waves reached heights of three to six feet. Finally, at about 2:00 p.m. the deceased headed the boat ashore. As he turned the boat, it was hit by a wave which killed the engine and filed the boat with water. The men then put on their life jackets and sounded a distress call with their horn. Shortly thereafter, the boat was capsized by a sudden turbulence.
The distress call was heard by someone on shore who relayed it to White, who immediately undertook the rescue attempt. White testified that although the capsized boat was only three to four minutes distant under normal conditions from the ranger's dock, on that day it took him about twenty-five minutes to travel the same distance. Thus, the men were in the 38 water for over half an hour.
Although there is some conflict between the testimony of White and Hanson about the events surrounding the rescue, they are in agreement that when White came upon the scene, the deceased was not conscious and did not respond to any of White's rescue efforts.
In seeking a reversal, the plaintiffs alleged that the trial court erred in finding no duty or breach of duty on the part of the defendants; that the deceased's death was the result of an Act of God; that the deceased was guilty of contributory negligence; and that all three of these issues should have been submitted to the jury.
To establish a prima facie case of negligence, the plaintiffs must prove the elements of negligence. The mere happening of an accident does not raise any presumption of negligence. Pence v. Chaudet, 163 Colo. 104, 428 P.2d 705; Drake v. Lerner Shops of Colorado, Inc., 145 Colo. 1, 357 P.2d 624. The plaintiffs in this case failed to establish any duty on the part of the defendants to provide any rescue facilities. They rely on Vignone v. Pierce & Norton, 130 Conn. 309, 33 A.2d 427, and City of Longmont v. Swearingen, 81 Colo. 246, 254 P. 1000. Both of these cases are so dissimilar from the case at hand that we do not consider them at all applicable.
However, assuming there was a duty to provide rescue facilities, the plaintiffs also failed to establish a breach of duty. They presented no evidence to show that equipment or rescue procedures other than those used would have been more successful under the adverse weather conditions. Further, they presented no evidence to show that the defendants' breach, if any existed, was the cause of death, rather than the deceased's own negligence or an Act of God.
In a jury trial when a defendant makes a motion for directed verdict at the close of the plaintiff's case, the plaintiff's evidence is to be viewed in the light most favorable to him, and where the court, from a review of all the evidence, is convinced that no verdict in favor of the plaintiff would be permitted to stand, it has a duty to direct a verdict for the defendant. Brent, et al. v. Bank of Aurora, 132 Colo. 577, 291 P.2d 391.
The failure of the plaintiffs to establish a prima facie case of negligence was adequate justification for the trial court to direct a verdict in this case. However, the basis for granting the directed verdict is even stronger when the element of contributory negligence is added. Assuming arguendo that the defendants were negligent, the trial court held that plaintiffs' evidence established the contributory negligence of the deceased. We agree with this holding. It is a basic and established rule that issues of negligence, contributory negligence and proximate cause are generally questions for the jury, but where the evidence is undisputed and reasonable men could draw but one inference therefrom the question of contributory negligence is a question of law for the court. Buchanan v. Brandt, Colo., 450 P.2d 324; Reidesel v. Blank, 158 Colo. 340, 407 P.2d 30. It was undisputed that the deceased deliberately defied the ominous weather conditions for two hours. This most certainly was negligent and would have barred plaintiffs' recovery even if the defendants had been negligent in the first instance.
The evidence supports the rulings of the trial court and we find no error in the record.
Judgment affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.