Opinion
May 19, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Wormwood, Wolvington, Renner & Dosh, Winston W. Wolvington, Michael F. Morrissey, Denver, for defendants in error Melvin R. Harris and Melvin D. Harris.
Samuel J. Eaton, Denver, for plaintiff in error.
Lawrence A. Long and George G. Johnson, Jr., Alvin Weinberger, Denver, for defendants in error Robert L. Burleson and E. B. Millar Coffee Co.
DUFFORD, 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 the authority vested in the Supreme Court.
On June 18, 1964, shortly after 8:00 P.M., the plaintiff, Eleanor Powers, was standing on the sidewalk adjacent to the premises at 1301 Lawrence Street in Denver when a 1958 Ford driven by Melvin R. Harris and a panel truck driven by Robert L. Burleson collided at the intersection of Lawrence Street and Speer Boulevard. As a result of the collision the Ford traversed the Lawrence Street curb and struck the plaintiff, causing her severe and permanent injuries. At the time of the accident Burleson was employed by E. B. Millar Coffee Company and was acting within the scope of his employment. Melvin D. Harris is the father of Melvin R. Harris.
Prior to the date set for trial, there was presented to the trial court the depositions of all of the known eyewitnesses to the accident, including the depositions of plaintiff and Burleson. All of the parties were represented by counsel when the depositions were taken, and the depositions contained extensive cross-examination. Plaintiff in her deposition stated that she had no direct knowledge of the facts of the collision, and the defendant Melvin R. Harris, by way of affidavit, stated that he had no recollection or knowledge of the accident. Both the plaintiff and Melvin R. Harris stated unequivocally that they knew of no other witnesses to the accident other than those whose depositions were before the court and those who arrived at the scene after the accident occurred.
Upon consideration of the pleadings, the affidavits and the depositions on file, the trial court granted a summary judgment in favor of the defendants Burleson and Millar Coffee Company. This appeal was then brought with the plaintiff contending that such action on the part of the trial court was in error.
It is settled law that a party is entitled to a summary judgment when there are pleadings, affidavits, depositions and admissions of file showing that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. O. C. Kinney, Inc. v. Paul Hardeman, Inc., 151 Colo. 571, 379 P.2d 628.
The testimony of all the disinterested eyewitnesses to the accident established that the defendant Burleson entered the intersection on a green light and at a lawful rate of speed, and that the defendant Harris's car entered the intersection on a red light traveling at an excessive rate of speed. Such testimony further established that the Harris car collided with the panel truck driven by Burleson and then ricocheted, striking the plaintiff, who was standing on a nearby sidewalk. It was also affirmatively established that there was no unusual weather condition, that the traffic signals were working, and that Burleson's truck had on its headlights. One of the eyewitnesses in his testimony did state that Burleson was looking straight ahead at the time the eyewitness observed him. However, such witness stated he did not observe Burleson until After Burleson had entered the intersection in which the accident occurred. Burleson testified that prior to entering the intersection he looked to the left and to the right, but did not see the Harris car until immediately prior to the time of collision. In any event, from testimony that Burleson was looking straight ahead After he entered the intersection, it cannot be inferred that he had failed to maintain a proper lookout Prior to entering the intersection, nor is such testimony contradictory to Burleson's testimony that he did in fact look to the left and right before entering the intersection.
Consequently, it appears that the defendants Burleson and Millar had affirmatively established at the time of their motion for summary judgment that there was no factual basis upon which they could be liable to plaintiff for alleged negligence. Such being the case, it was proper for the trial court to grant their motion for summary judgment unless the plaintiff and the defendant Harris introduced something into the record to contradict the affirmative showing made by Burleson and Millar. Terrell v. Walter E. Heller & Company, 165 Colo. 463, 439 P.2d 989. Once the moving party affirmatively shows specific facts probative of its right to judgment, it becomes necessary for the nonmoving party to set forth facts showing that there is a genuine issue for trial. Preston v. Duncan, 55 Wash.2d 678, 349 P.2d 605; McGough v. City of Edmonds, 1 Wash.App. 164, 460 P.2d 302. Neither plaintiff nor the defendant Harris offered anything to contradict the affirmative showing of nonliability made by Burleson and Millar in support of their motion for summary judgment. Plaintiff and Harris made no showing that any other evidence they might have produced at trial would contradict the evidence upon which the trial court based its summary judgment. In short, the trial court had no alternative but to conclude that there was no genuine issue of fact upon which the defendants Burleson and Millar could be found liable, and it properly granted their motion for summary judgment. Terrell v. Heller & Company, supra.
The judgment is affirmed.
COYTE and PIERCE, JJ., concur.