Opinion
Aug. 5, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 170
Walberg ,& Pryor, James E. Griffith, Denver, for plaintiff in error.
Harden & Olson, Ralph B. Harden, Fort Collins, Wormwood, Wolvington, Renner & Dosh, Jack Kent Anderson, Denver, for defendant in error.
PIERCE, Judge.
This case was originaly 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.
The parties appear here in reverse order from their appearance below and will be referred to by their trial court designations. Review is of a jury verdict in favor of plaintiff, both on his claim and on defendant's counterclaim, in an action arising from a two-car, rear-end collision occurring at approximately 6:15 a.m., while still dark, on September 15, 1965. Plaintiff was the driver of a vehicle which struck defendant's vehicle from behind.
At trial, plaintiff testified: that he was traveling in the right-hand southbound lane of Interstate 25 at approximately 50--55 miles per hour; that he suddenly saw an object in his headlights, whereupon he began to slow his vehicle by removing his foot from the accelerator; that almost immediately, however, he realized the object was a slow-moving, or stopped, vehicle directly in his lane of travel with a man apparently standing behind it; that he immediately applied his brakes in an attempt to stop, during which time the man standing behind the vehicle dove out of the way; and that he was unable to stop, and struck the vehicle before him squarely from behind. He stated that at the time he saw no lights on the vehicle.
Plaintiff's testimony as to his speed was corroborated by a passenger in a truck following some distance behind the plaintiff at the time of the accident. This witness also testified that although he could see plaintiff's taillights, he saw no other lights at the time of the accident.
Defendant and her husband testified with substantial agreement: that defendant was driving at the time of the accident and had just experienced steering difficulty; that she had slowed down, by coasting for some distance without applying her brakes, to a speed of approximately 10--15 miles per hour; that there was a seam between the travel lane and the paved shoulder, caused by the paved shoulder being some inches lower than the travel lane; that to avoid losing control of her vehicle, she had cautiously begun to pull onto the emergency shoulder from the right-hand travel lane; that her vehicle's lights were on as were her right-turn signal lights, indicating that she was pulling onto the shoulder; that her vehicle was not stopped at the time of impact; that her husband was in the vehicle and had not been standing to the rear of it prior to the accident; and that the front of her vehicle was in fact on the paved emergency shoulder, while the rear was partially on the shoulder at the time of impact. Defendant and her husband further maintained that both had looked, by mirror or by turning around, for traffic behind them when defendant first noticed the steering difficulty, and that both had seen headlights some 500 to 700 feet behind them. Both further maintained that although their vehicle was heavily loaded to the roof with household goods and electronic equipment, they could see behind them with no difficulty.
The testimony offered by defendant and her husband conflicted sharply with the physical evidence which showed that the point of impact between the two vehicles was in the center of the right-hand travel lane. Photographs taken at the accident scene showed that their vehicle was struck almost squarely from behind, although they maintained the blow was struck at an angle in accordance with her testimony that the vehicle was angling onto the shoulder. The exhibits also clearly showed there was no seam or drop-off between the travel lane and the shoulder. Based upon this highly conflicting evidence and testimony, the jury found for plaintiff both on his claim and on defendant's counterclaim. Defendant, after taking the necessary steps to perfect review, comes before us, alleging:
1. That the court erred in not granting defendant judgment of dismissal on plaintiff's claim and directing verdict in her favor on her counterclaim, on grounds that evidence clearly established her lack of negligence and plaintiff's contributory negligence or contributory negligence Per se; and
2. That the court erred in granting certain jury instructions and in refusing to grant others.
THE NEGLIGENCE--CONTRIBUTORY NEGLIGENCE ISSUE
We cannot agree with defendant's first allegation of error.
Witness credibility, which obviously played a role in the instant case, is for the jury to judge (Harvey v. Irvin, 156 Colo. 391, 401 P.2d 266), as are issues of fact, including negligence, contributory negligence, assumption of risk and proximate cause. Hilzer v. MacDonald, Colo., 454 P.2d 928. A verdict will not be disturbed by a reviewing court when evidence in the record, viewed most favorably to the prevailing party, supports it. Chartier v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044.
The evidence was such that reasonable minds could have concluded: that defendant's vehicle was stopped in the center of the right-hand lane of a 70 mile per hour highway, in darkness and without lights; that defendant's husband was standing behind it, inspecting its rear tires, immediately prior to its being struck by plaintiff; and that this was negligence on defendant's part. Under these circumstances, the court committed no error by allowing the issue of defendant's negligence to go to the jury. The jury's conclusion on defendant's negligence is supported by evidence and will, accordingly, not be disturbed on review. Bates v. Stagg, 157 Colo. 456, 404 P.2d 530.
Defendant also argues that the court should have directed verdict in her favor on the issue of plaintiff's contributory negligence or contributory negligence Per se, and should not have allowed recovery. These again, however, are issues for the finder of fact to resolve, considering the emergency situation in which plaintiff found himself due to the acts of defendant. Hilzer, supra; Reidesel v. Blank, 158 Colo. 340, 407 P.2d 30.
Defendant asserts that by violating the statute regarding passing on the left (C.R.S.1963, 13--5--39), plaintiff was obviously contributorily negligent Per se, since a party designed to be protected by the statute (defendant) was proximately injured by plaintiff's violation thereof. Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64. Violation of a traffic statute does not invariably constitute negligence as a matter of law. Eddy v. McAninch, 141 Colo. 223, 347 P.2d 499. When traffic statutes are involved, a person is not required to do the impracticable or the impossible. Crosby v. Canino, 84 Colo. 225, 268 P. 1021. What is impracticable or impossible in that regard is a matter for the trier of fact to resolve upon evidence; and in the case before us, plaintiff's evidence obviously overcame, in the mind of the jury, any presumption of negligence on his part.
Evidence in the record indicates that immediately prior to the accident, plaintiff was traveling at a reasonable rate of speed; that his lights were on; that he was driving on a limited-access interstate highway in the right-hand lane of travel; that when he first saw an unidentifiable object without lights before him in his own headlights, he began to slow down; that when he determined what the object was, he attempted a panic stop; and that all of this occurred within a span of two to three seconds. Further, his alleged actions are consistent with the physical evidence, whereas it might be noted not all of defendant's alleged actions are.
The jury could well conclude that plaintiff could not, with the time available to him, and under the circumstances, pass defendant's vehicle on the left pursuant to the statute cited by defendant. This evidence also supports a conclusion that plaintiff was not contributorily negligent under ordinary negligence theories.
There being sufficient evidence in the record from which reasonable minds could have reached the above conclusions, there was no error in the court's failure to direct a verdict for defendant on the issue of plaintiff's contributory negligence or contributory negligence Per se.
THE INSTRUCTIONS
Defendant also asserts that the court erroneously gave several instructions over her objection and erroneously refused to give several others.
We have thoroughly reviewed the record in respect to these allegations and hold that the court's given instructions were proper under the theories and evidence presented, and that the tendered instructions refused either dealt with matters sufficiently covered by the given instructions or were incorrect statements of the law under the circumstances presented.
In this latter connection, we refer specifically to defendant's tendered instructions 1 and 6, which would have instructed the jury that it is negligence as a matter of law to drive a vehicle in such a fashion as to be unable to stop before striking objects appearing on the roadway in front of that vehicle. Although there was at one time a statutory provision to this effect in Colorado (Colo.Laws 1931, ch. 122, s 73(a), at 532) it was never interpreted by our Supreme Court as an absolute mandate under any and all circumstances. Grunsfeld v. Yetter, 100 Colo. 570, 69 P.2d 309. Further, that provision was omitted when the above section was repealed and re-enacted. (Colo.Laws 1935, ch. 164, at 739).
For the reasons stated above, the assignments of error made by defendant in the instant case are without merit.
Judgment is affirmed.
COYTE and DUFFORD, JJ., concur.