Opinion
March 30, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Kripke, Hoffman, Carrigan & Dufty, P.C., Denver, for plaintiff in error.
Zarlengo, Mott & Carlin, Donald E. Cordova, Denver, for defendant in error.
COYTE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties made their appearances in the same order as they appeared at trial and shall be referred to in the same manner.
On December 22, 1967, a multiple car accident occurred on the northbound portion of a four-lane highway. Insofar as of the accident shows that two cars of the acciden shows that two cars immediately preceding plaintiff were involved in a collision, and plaintiff's vehicle was struck by another vehicle, causing plaintiff's vehicle to come to a halt in the lane immediately next to the median strip of the highway. The defendant, who was following plaintiff, attempted to go around her vehicle by driving his own vehicle onto the median strip. As he drove onto the shoulder of the median strip, his vehicle began to skid, turning slightly sideways in relation to plaintiff's vehicle. The right rear door and fender of defendant's vehicle struck the left rear of plaintiff's vehicle. Defendant's vehicle came to a halt a few feet beyond plaintiff's.
Plaintiff filed suit against all the drivers involved in the accident. At the conclusion of her evidence, all the defendants moved for directed verdict, but only the defendant O'Hara's motion was granted. The trial then proceeded to conclusion, and the jury returned a verdict in favor of the three remaining defendants.
Plaintiff has appealed solely on the ground that the trial court erred in dismissing defendant O'Hara. The rule is clear that in passing upon a motion for directed verdict where there is a jury, the trial court should view the evidence in the light most favorable to plaintiff's theory, and only if it then fails to support plaintiff may the trial court grant the motion to dismiss. Nelson v. Centennial Casualty Co., 130 Colo. 66, 273 P.2d 121.
In the light most favorable to plaintiff, the evidence shows that plaintiff was lawfully proceeding down the highway when forced to a complete stop because of a collision, for which she was not responsible. According to the defendant, he was from three to eight car lengths behind the plaintiff, following at a speed of 50 to 55 miles per hour. Upon seeing the collision, the defendant braked lightly and drove onto the shoulder which was covered with sand. This caused defendant's vehicle to skid out of control, turning slightly to one side as it went down the highway and struck plaintiff's vehicle.
Where plaintiff was without fault and her automobile was struck in the rear by defendant, there is a rebuttable presumption of negligence on the part of the defendant. Iacino v. Brown, 121 Colo. 450, 217 P.2d 266. See Colorado Jury Instructions 11:11. Under the related circumstances, there is a question of fact as to whether or not the defendant in this situation acted in a manner consistent with that of a reasonable motorist. Whether or not the defendant was following too closely, or used his brakes sufficiently, or should have avoided going onto the median strip, were questions for the jury, not the trial court.
Defendant's argument that this was not in reality a rear-end collision because his vehicle was slightly sideways to plaintiff when the collision occurred is without merit.
Judgment reversed and cause remanded for a new trial.
DWYER and PIERCE, JJ., concur.