Prentiss v. Johnston

17 Citing cases

  1. Yokley v. Santa Fe Trail Transportation Co.

    227 F.2d 534 (10th Cir. 1955)   Cited 4 times
    In Yokley v. Santa Fe Trail Transportation Co., 10 Cir., 227 F.2d 534, the court held that it was bound by a finding that the plaintiff was guilty of contributory negligence and affirmed a judgment adverse to plaintiff.

    The fact that the plaintiff may have had the right of way did not absolve him from the duty to use due care in the operation of his automobile to avoid a collision. Prentiss v. Johnston, 119 Colo. 370, 203 P.2d 733; Denver Equipment Co. v. Newell, 115 Colo. 23, 169 P.2d 174; Independent Lumber Co. v. Leatherwood, 102 Colo. 460, 79 P.2d 1052. Affirmed.

  2. Ferguson v. Gardner

    554 P.2d 293 (Colo. 1976)   Cited 16 times

    He has the right to depend on others who use the streets to see what is plainly visible and act with due regard for the situation. Clark v. Bunnell, 172 Colo. 32, 470 P.2d 42 (1970); Prentiss v. Johnston, 119 Colo. 370, 203 P.2d 733 (1949). [8] We therefore conclude that where the plaintiff voluntarily exposes himself to a known danger, he does not necessarily consent to the negligence of another.

  3. Ewing v. Izer

    243 Or. 367 (Or. 1966)   Cited 9 times
    In Ewing v. Izer, 243 Or. 367, 412 P.2d 795 (1966), decided after the trial of the present case, we affirmed a verdict for a plaintiff who turned left against an oncoming defendant.

    The plaintiff testified he looked, but did not see the defendant's car. The court's opinion apparently approves the rule that a motorist "cannot say that he looked, but failed to see what was clearly visible, or could have been seen by the exercise of ordinary care": 2 Blashfield, Automobile Law and Practice 271-272, § 104.4 (3d ed). The same principle has been otherwise stated as follows: "[W]here there is a duty to look, a failure to observe what is plainly visible constitutes negligence even if the defendant says he looked and did not see": Wilkins v. Stuecken, 359 Mo 1047, 1052, 225 S.W.2d 131. See, also, Prentiss v. Johnston, 119 Colo. 370, 203 P.2d 733. The opinion of the court states: "The plaintiff argued that the defendant's automobile may have been masked by other automobiles proceeding in the same direction."

  4. Nemer v. Anderson

    151 Colo. 411 (Colo. 1963)   Cited 5 times
    In Nemer v. Anderson, 151 Colo. 411, 378 P.2d 841 (1963), a case in which the plaintiff did not receive a salary, the supreme court recognized the use of replacement labor costs as a gauge for calculating "loss of earnings" under the probate code.

    A further analysis of the court's remarks reveals the "conclusion" that the defendant was negligent and that such negligence was the proximate cause of the accident. Both the finding that the defendant cannot be excused for her failure to see the Anderson car and the conclusion which allows the cases of Fabling v. Jones, 108 Colo. 144, 114 P.2d 1100; Prentiss v. Johnston, 119 Colo. 370, 203 P.2d 733; Behr v. McCoy, 138 Colo. 137, 330 P.2d 535, are amply supported by the record. As to the item of damages, defendant contends that the court failed to find that the car in which the Andersons were riding was owned by the partnership.

  5. Frank v. Whinery

    366 P.2d 560 (Colo. 1961)

    Each readily agrees that whoever has the right-of-way must nonetheless continue to exercise reasonable care. Denver Equipment Company v. Newell, 115 Colo. 23, 169 P.2d 174; and Prentiss v. Johnson, 119 Colo. 370, 203 P.2d 733. Mrs. Frank sued Whinery, charging him with negligence which caused her physical injuries with resultant damages in the amount of $32,137.78, and demanded trial by jury.

  6. Kuhn v. Frazier

    361 P.2d 363 (Colo. 1961)   Cited 1 times

    In holding that the question was one of fact, the Court observed: "* * * For authorities to the effect that the question of contributory negligence, in actions comparable to the instant case, is one for the jury, or for the trial court sitting without a jury, see Prentiss v. Johnston, et al., 119 Colo. 370, 203 P.2d 733; Markley v. Hilkey Bros., 113 Colo. 562, 160 P.2d 349; Woods v. Siegrist, 112 Colo. 257, 149 P.2d 241; and Rigot v. Conda, supra. "Upon consideration of the record before us we cannot say that the trial court was obligated, as a matter of law, to find that Jungck was guilty of contributory negligence. It is sufficient to say that the evidences is in conflict with relation to lighting at the intersection, obstruction of vision, pertinent time intervals, distances and measurements bearing upon the angle of visibility, and other particulars."

  7. Cornell v. Deuser

    347 P.2d 964 (Colo. 1959)   Cited 1 times
    In Cornell v. Deuser, 141 Colo. 327, 347 P.2d 964, the Supreme Court held an instruction on this subject, which required actual knowledge, to be improper.

    "You are instructed that a person driving upon the highway is entitled in the absence of actual knowledge to the contrary, to assume that it is safe to proceed on said highway at a lawful speed." It is contended by counsel for defendant Deuser that this instruction correctly states the law as announced by this court in Prentiss v. Johnston et al., 119 Colo. 370, 203 P.2d 733; Ankeny v. Talbot et al., 126 Colo. 313, 250 P.2d 1019; and Gallagher Transportation Company et al. v. Giggey, 101 Colo. 116, 71 P.2d 1039. [1-2] We find nothing in the opinions in the cases cited which supports the giving of the instruction to which objection is here made.

  8. Bird v. Richardson

    344 P.2d 957 (Colo. 1959)   Cited 9 times
    Holding that the plaintiff was under a duty "to exercise that degree of care to avoid an accident required of a reasonable, prudent individual under the then existing circumstances"

    [1-2] It would indeed seem unwise and manifestly unjust to hold that a driver of an automobile who, while driving in a lawful manner, perceives another automobile approaching him in the wrong traffic lane, is negligent if he does not immediately leave the roadway and drive into the ditch to avoid an accident which might not occur if the driver of the other car returns to his proper lane of traffic. It is more logical and just to hold that the person driving lawfully has, under the facts here presented, the right to assume that the driver of the other vehicle will observe the law and return to his proper lane. Prior decisions of this court hold that one cannot be charged with negligence in failing to anticipate that the other driver may violate the laws governing the use of the highways. See Artz v. Herrera (1958), 137 Colo. 378, 325 P.2d 927; Ankeny v. Talbot (1952), 126 Colo. 313, 250 P.2d 1019, and Prentiss v. Johnson (1949), 119 Colo. 370, 203 P.2d 733. To this reasoning we add that he cannot be charged with negligence in failing to anticipate that the other driver will continue to violate the laws governing the use of the highways when it appears that the violator is ceasing or may cease his unlawful acts in time to avoid danger to other persons, or if under the circumstances the unlawful act does not at first blush appear to a reasonable person to call for instantaneous defensive action.

  9. Behr v. McCoy

    330 P.2d 535 (Colo. 1958)   Cited 7 times

    " In Prentiss v. Johnston, 119 Colo. 370, 203 P.2d 733, it was repeated thus: "* * * Also we have held that whenever a driver looks for approaching vehicles 'in such manner as to fail to see what must have been plainly visible was to look without a reasonable degree of care and is of no more effect than if she had not looked at all,' Fabling v. Jones, supra, and cases there cited.

  10. Kendall Company v. Jungck

    316 P.2d 1052 (Colo. 1957)   Cited 5 times
    In Kendall Transportation Co. v. Jungck, 136 Colo. 339, 316 P.2d 1052 (1957), we strictly limited the scope of the Bennett case. Under the facts herein, it has no application whatsoever.

    The rule applied in the case of Bennett v. Hall, supra, should not be extended to apply to actions in which the facts are at variance with the particular circumstances shown to be present in that case. Rigot, Adm'r. et al. v. Conda, et al., 134 Colo. 375, 304 P.2d 629. For authorities to the effect that the question of contributory negligence, in actions comparable to the instant case, is one for the jury, or for the trial court sitting without a jury, see Prentiss v. Johnston, et al., 119 Colo. 370, 203 P.2d 733; Markley v. Hilkey Bros., 113 Colo. 562, 160 P.2d 394; Woods v. Siegrist, 112 Colo. 257, 149 P.2d 241; and Rigot v. Conda, supra. Upon consideration of the record before us we cannot say that the trial court was obligated, as a matter of law, to find that Jungck was guilty of contributory negligence. It is sufficient to say that the evidence is in conflict with relation to lighting at the intersection, obstruction of vision, pertinent time intervals, distances and measurements bearing upon the angle of visibility, and other particulars.