Opinion
Isaacson, Rosenbaum, Goldberg & Miller, Louis G. Isaacson, Sheldon E. Friedman, Denver, for plaintiff in error.
Wormwood, Wolvington, Renner & Dosh, Jack Kent Anderson, Denver, for defendants in error.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error was plaintiff below and will be referred to hereinafter as Hicks; defendants in error were defendants below and will be referred to hereinafter as Steinbaugh and as Sundquist.
This case arises from an accident in which Hicks was run over by a truck owned by Steinbaugh and driven at the time of the accident by Sundquist. It is conceded that Sundquist was within the scope of his employment at the time of the accident. The accident occurred while Hicks was filling cracks in a freshlypoured concrete slab on the driveway giving access to his employer's (Gates & Sons) storage yard in Denver. Apparently, the south half of the driveway had been re-cemented, while the north half had not been. Hicks was filling in spaces between the new and the old cement so as to preclude seepage of water. At the time of the accident, a chain-link sliding gate had been drawn partially across the driveway so as to block vehicles from moving over the newly poured half of the driveway. Ingress and egress were limited to the north half of the driveway.
Prior to the accident, Sundquist had backed his truck into Gates & Sons to return a cargo of unused reenforcement rod. He had backed over the north half of the driveway, and had parked his truck some distance (the exact distance was in dispute) from the storage racks into which he had to transfer the reenforcement rod. Hicks, in the meantime, had moved out of the way while Sundquist was backing into the driveway because 'I wasn't taking any chances on a backing up truck.' When the truck had stopped and parked, Hicks resumed his work on the driveway.
Sometime later, after Sundquist and an employee of Gates had finished transferring the reenforcement rod into the storage racks, and after Sundquist had obtained certain necessary invoices, etc., Sundquist left Gates' office and, while checking over the entries on the invoices, walked around his truck and climbed into the cab. He was looking only at the invoices, and did not look for, or see, Hicks working on the driveway some distance (again, in dispute) in front of the truck. Sundquist then started the truck and proceeded out of the driveway.
In the meantime, Hicks had assumed a kneeling position on the south half of the driveway, near the center line and approximately half way between the chain-link gate and the curb cut, and was continuing with his work. His back was turned to the truck. As the truck pulled out, it struck Hicks on the right shoulder, and ran over him.
As a result of this accident, Hicks was severely injured and sought to recover damages. Trial was had before a jury, which found in favor of defendants on the issue of liability. Plaintiff's motion for new trial was denied.
Among the errors alleged by plaintiff were the submission to the jury of an instruction on contributory negligence and a failure to give plaintiff's tendered instructions on last clear chance and 'looking without seeing.'
There was sufficient evidence before the court to justify the contributory negligence instruction, and the last clear chance instruction was not applicable. It was error, however, to refuse to submit an instruction on 'looking without seeing' to the jury. The tendered instruction reads as follows:
'You are instructed that in law if a party looks, but looks in such a manner as to fail to see what must have been plainly visible, he looked without a reasonable degree of care, and such a look is of no more effect than if he had not looked at all.'
That this instruction correctly enunciates the law in Colorado is clear, Fabling v. Jones, 108 Colo. 144, 114 P.2d 1100, and defendants concede this in their brief. Therefore, if there was evidence in the record making the instruction applicable, it should have been given.
The trial transcript reveals that at the time Sundquist left the Gates office and re-entered his truck to leave, he was looking only at the invoice he had obtained from the office; he did not look for, or see, Hicks or anyone else. When he entered the truck, he looked left and then right for obstructions and traffic; but he did not see Hicks, who was in front of his truck. Whether or not Hicks could have been seen from the truck cab is in dispute. However, there was some testimony indicating that he was sufficiently far enough in front of the truck to have been seen, and the question was one for the jury to resolve. Consequently, the jury should have been instructed on 'looking without seeing'--the theory of the plaintiff's case--so that its consideration of this aspect would be insured.
We therefore rule that the trial court erred in failing to give the tendered instruction. At the retrial the applicable C.J.I. instruction should be given.
Judgment is reversed and the case is remanded for a new trial.
SILVERSTEIN, C.J., and ENOCH, J., concur.