Opinion
June 6, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1272
Ashen & Fogel, George T. Ashen, Weller, Friedrich, Hickisch & Hazlitt, Geoffrey S. Race, Denver, for plaintiffs-appellants.
Wood, Ris & Hames, F. Michael Ludwig, Gary P. Sandblom, Denver, for defendants-appellees.
SILVERSTEIN, Chief Judge.
This is an action in behalf of three minor children to recover for their father's death, allegedly caused by the negligence of the defendants. At the end of plaintiffs' case in a trial to a jury, the trial court granted defendants' motion for a directed verdict, and entered judgment dismissing the action. Plaintiffs appeal from this judgment. We affirm.
The parties stipulated that the decedent, Jenkins, died as a result of being run over by a grader operated by defendant Emerson, who was at that time acting within the scope of his employment by the other defendant, Bramley Earth Moving Co. Emerson was the only witness who testified as to the facts relative to the accident. He testified that he commenced work at 8:00 a.m. He was grading an area for a parking lot, driving from west to east in a straight line while grading and then backing up in a straight line from east to west in order to make his next run. At 8:30 a.m. Jenkins, who was the supervisor of the job, arrived at the job site. Emerson stopped his grader at the east end of his run to talk to Jenkins. During the conversation the machine was idling. Emerson remained seated in the cab, and Jenkins stood five to ten feet from the left side of the grader. They discussed Emerson's work for the day.
At the close of their conversation, Emerson prepared to back up the grader. He looked to his left and saw that Jenkins was 'in the clear' and walking west. Emerson then backed the grader in a straight line to the west, looking over his right shoulder to see where he was going and to see that he was keeping a straight line. While Emerson was in this position Jenkins was outside his range of vision. After backing about 100 feet Emerson stopped the machine, faced the front of the grader to start his run, and saw Jenkins' body lying in the path he had just covered.
The evidence also disclosed that there was nobody other than Emerson and Jenkins in the immediate area at the time of the accident; that Jenkins was an experienced supervisor, having supervised over thirty similar jobs and having supervised Emerson on three or four previous occasions. Further, it was established that in order to back the grader the driver had to look over his right shoulder due to the position of the various controls used in its operation; that this was the standard, usual and accepted procedure in operating the machine; and that, while backing, the grader was moving at about three miles an hour. Emerson did not see Jenkins from the time he started backing until he saw his body on the ground, nor did he hear or feel anything unusual during his backward run. The above facts are undisputed.
There being no dispute in the facts, it was proper for the court in this case to determine the issue of negligence on the motion for a directed verdict. In Grand Junction v. Lashmett, 126 Colo. 256, 247 P.2d 909, it is stated,
'Where . . . the evidence is not in conflict, and there is no dispute as to the facts of the case, the issue on the question of negligence is resolved into one of law for determination by the court. The question before the court then is: Are the facts of this case, undisputed and considered in the light most favorable to plaintiff, sufficient to support her charge of negligence on behalf of the defendant? (citing cases)'
We agree with the trial court that in this case the facts were not sufficient to sustain the charge of negligence. Applicable here is the statement from W. Prosser, Law of Torts 165 2d ed. quoted with approval in McMillan v. Hammond, 158 Colo. 40, 404 P.2d 549, as follows,
'The culpability of the actor's conduct must be judged in the light of the possibilities apparent to him at the time, and not by looking backward 'with wisdom born of the event.' The standard must be one of conduct rather than of consequences. . . . No man can be expected to guard against events which are not reasonably to be anticipated, or are so unlikely that the risk would commonly be disregarded . . ..'
See Franklin v. Nolan, 28 Colo.App. 229, 472 P.2d 166.
Here, after looking to see that Jenkins was in the clear, Emerson drove the grader in the customary manner along a path which Jenkins knew it would be traveling, as the had just given Emerson his instructions. Emerson was not bound to anticipate that decedent might leave a place of safety and place himself in a position of danger. Lewis v. Super Valu Stores, Inc., D.C., 249 F.Supp. 852, affirmed, 8 Cir., 364 F.2d 555.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.