Opinion
Rehearing Denied Jan. 9, 1973.
Fred R. Rehmer, Aurora, for plaintiffs-appellants.
Houtchens, Houtchens & Dooley, John J. Dooley, Greeley, for defendant-appellee.
DWYER, Judge.
The personal injury and property damage claims which the plaintiffs assert in this action arose from a two-car rear-end collision. After a trial to the court, all of plaintiffs' claims were denied, and judgment was entered in favor of the defendant. The plaintiffs have appealed. We affirm.
The collision occurred on September 18, 1970, at approximately 8:00 a.m. on U.S. Highway No. 85 near its intersection with 9th Street in Evans, Colorado. Plaintiff Virginia Leonard, with plaintiff Mitzi Leonard as a passenger, stopped her car on U.S. Highway No. 85 behind a line of other cars, all of which were stopped for a red light at the intersection of 9th Street. Defendant Carl LeRoy Harvey, who had been driving his automobile behind the Leonard car, failed to stop, and his automobile struck the rear of plaintiffs' vehicle.
It is not asserted that Virginia Leonard was negligent in stopping as she did. Plaintiffs established a prima facie case of negligence when they proved that the defendant struck the rear of their stationary vehicle. Defendant thereupon had the burden of showing that the collision was not caused by his negligence. Bartlett v. Bryant, 166 Colo. 113, 442 P.2d 425; Eddy v. MeAninch, 141 Colo. 223, 347 P.2d 499; and Iacino v. Brown, 121 Colo. 450, 217 P.2d 266. To exonerate himself of negligence, defendant claimed a sudden and unforeseeable failure of his brakes. Colorado recognizes the rule that the operator of a motor vehicle is not negligent if he has done all that would be expected of a reasonably prudent person and a sudden failure of brakes, not reasonably foreseeable, occurs and causes a collision. Bartlett v. Bryant, supra; Diagle v. Prather, 152 Colo. 115, 380 P.2d 670.
At the trial, defendant presented evidence in support of his defense that the collision was caused by a sudden brake failure due to a mechanical defect of which he had no prior knowledge and which he could not have discovered. Plaintiffs vigorously attacked defendant's claim of brake failure and produced evidence in opposition to the claim. Plaintiffs also claim that if defendant's brakes did in fact fail he was negligent in failing to use his hand brake, in failing to shift gears, and in failing to take evasive action to avoid the collision.
The evidence on all of the factual issues was in conflict and susceptible to differing inferences. The credibility of the witnesses, the sufficiency, probative effect, and weight of all the evidence, and the inferences and conclusions to be drawn therefrom, were all within the province of the trial court whose conclusions will not be disturbed on review unless so clearly erroneous as to find no support in the record. Adler v. Adler, 167 Colo. 145, 445 P.2d 906; Hipps v. Hennig, 167 Colo. 358, 447 P.2d 700. A court's finding based upon a choice between two plausible views of the weight of the evidence or upon a choice between conflicting inferences from the evidence is not clearly erroneous. Thiele v. State of Colorado, 30 Colo.App. 491, 495 P.2d 558.
The court's findings are not so clearly erroneous as to find no support in the record, and the judgment based on the findings is affirmed.
COYTE and PIERCE, JJ., concur.