Opinion
Rehearing Denied Sept. 15, 1970.
Eugene Deikman, Harry K. Nier, Jr., Denver, for plaintiff in error.
Wormwood, Wolvington, Renner & Dosh, Laird Campbell, Denver, for defendants in error.
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.
A jury returned a verdict in favor of the plaintiff below, Leon Starks, and against the defendants, Paul and Vesta Smith, in the sum of $15,500 for damages resulting from an automobile accident. Plaintiff brings this appeal from an order of the trial court granting the Smiths' motion for judgment notwithstanding the verdict. The trial court was of the opinion that the sole proximate cause of the accident was the negligence of a third defendant, Betty Woodman, with whom the plaintiff had settled prior to trial. A fourth defendant, Donald Daily, was granted a directed verdict in his favor. Neither Betty Woodman nor Donald Daily are parties to this appeal.
It is well settled in this State that issues of negligence, contributory negligence, and proximate cause are matters generally to be resolved by the trier of facts, and that only in the clearest of cases where the facts are undisputed and reasonable minds can draw but one inference from them, should such issues be determined as a matter of law. Lasnetske v. Parres, 148 Colo. 71, 365 P.2d 250. In the instant case we are of the opinion that the trial court erred in ruling, as a matter of law, that any negligence on the part of Vesta Smith was not a proximate cause of the accident.
The accident occurred on a four-lane highway just north of a traffic signal. The speed limit was 45 miles per hour. Traffic was heavy. The six vehicles involved in the accident were all northbound in the same lane. A pickup truck driven by the defendant Vesta Smith was protruding from the left trun lane of the highway into the adjacent lane of travel. The record is clear that there was adequate room for the Smith vehicle to stop entirely within the left turn lane. Plaintiff, in order to avoid colliding with the Smith vehicle, was forced to bring his automobile to a stop. What occurred next is not entirely clear. A third vehicle, driven by the defendant Daily, either before or after being struck by a fourth vehicle driven by the defendant Woodman, struck the plaintiff's vehicle, causing it to strike the Smiths' pickup truck. A fifth vehicle then collided with Woodman's vehicle, and a sixth vehicle collided with the fifth.
We feel that the case of Gushurst v. Benham, 160 Colo. 428, 417 P.2d 777, is controlling here and quote extensively therefrom:
'Moments after Hennis stopped his vehicle, a dump truck driven by an employe of the City of La Junta rammed into the rear-end of the Hennis vehicle; and a minute or two later a vehicle driven by one Josie Palacio drove into the back of the dump truck. Thereafter the driver of the dump truck went back and by hand signal succeeded in stopping a Safeway truck, which was also proceeding in a westerly direction. Immediately thereafter a vehicle driven by Frank Benham, in which the claimant was riding as a passenger, crashed into the rear of the Safeway truck. It was on this concatenation of events that claimant later filed her claim against the estate of Hennis.
'The administrator argues, in effect, that the trial court should have directed a verdict in behalf of the estate for the reason that claimant's injuries were Solely caused by her husband's negligence. In this connection the real issue, as we see it, is not whether Frank Benham was guilty of negligence which contributed to his wife's injuries, which he probably was, But whether we are prepared to hold that as a matter of law Hennis was free from any and all negligence which was a proximate cause (though not the sole cause) of claimant's injuries. In our view Hennis' act of stopping on the traveled portion of the highway posed issues of fact, both as to negligence and proximate cause, which under the circumstances were properly to be determined by the jury; it did not pose issues of law to be resolved by the trial court.
'There is no suggestion that the negligence, if such there was, of Frank Benham under the facts of this case could be imputed to this claimant. Hence, contributory negligence plays no part in this case. Assuming, then, for the sake of argument that Frank Benham was guilty of negligence which was a proximate cause of his wife's injuries, such finding would in nowise preclude the further finding that Hennis was also guilty of negligence which was also a contributing cause of her injuries.' (Emphasis added)
From the language quoted, it is clear that in this case the trial court did that which our Supreme Court stated in the Gushurst case should not be done.
The case of Taylor v. Welle, 143 Colo. 37, 352 P.2d 106, cited by the defendants, is not in point. There the Supreme Court held that there was no showing of negligence on the part of the defendant. Here it is not argued that the defendant Vesta Smith was not negligent; the issue is whetehr her negligence was a proximate cause of the accident.
The judgment is reversed and remanded with directions that the trial court reinstate the jury verdict.
PIERCE, J., concurs.
COYTE, J., dissents.
COYTE, Judge (dissenting).
Vesta Smith was proceeding northerly, driving the family pickup with which she was not totally familiar, and started to make a left turn. In doing so, she pulled into the left turn lane. However, she couldn't complete her turn in that there was oncoming traffic from the north and she had to wait until the traffic could clear. The rear end of her pickup was protruding out into the traveled portion of the northbound lane so that the lane was obstructed. Leon Starks, driving a vehicle following plaintiff, observed her turn and, because of other traffic heading north in the outside north-bound lane, came to a stop about a car-and-a-half length behind the Smith pickup. Starks claimed that he had been so stopped for approximately thirty seconds when his car was struck from the rear.
It developed that a third vehicle had stopped behind the Starks vehicle and was struck by a fourth vehicle driven by defendant Woodman. Under these circumstances, Woodman was the only person involved in the collision who did not have control of his vehicle. There would have been no accident but for the negligence of Woodman in pushing the Daily car into the Starks car, which was in turn pushed into the Smith car. There was an efficient intervening cause and, as a matter of law, I am of the opinion that Mrs. Smith's negligence, if any, in stopping her vehicle, could not be considered as a proximate cause of the accident.
The issue in this case deals with the definition of proximate cause, surely one of the more elusive concepts to be found in the law. Attempted definitions generally refer to proximate cause as that act which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injuries complained of. Martin K. Eby Construction Co. v. Neely, 8 Cir., 344 F.2d 482, affirmed, 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75; Stout v. Denver Park & Amusement Co., 87 Colo. 294, 287 P. 650.
However, the injury complained of must not only be a natural consequence of the negligent act, but furthermore must be reasonably anticipated as a naturally flowing occurrence of that act. Moore v. Standard Paint & Glass Co., 145 Colo. 151, 358 P.2d 33. In order to hold the defendant liable, the injury complained of must be a natural, probable, and reasonably foreseeable consequence of the negligent act. Shepard v. Denver Tramway Corp., 10 Cir., 62 F.2d 339. The majority relies upon Gushurst v. Benham, 160 Colo. 428, 417 P.2d 777, a case readily distinguishable on its facts. In Gushurst the defendant, driving on a four-lane highway, entered a cloud of smoke produced by a burning field adjacent to the highway. The defendant stopped upon the highway without attempting to remove his vehicle from the traveled lanes of traffic. Thereafter the accident occurred. However, in the instant case, the defendant was in a position on the highway where left turns were permitted by law. The visibility was unimpaired and the road was dry. In Gushurst, the accident as it occurred could have been reasonably foreseeable, in that a multi-car pile-up would be a natural and foreseeable result from stopping in a four-lane highway at a position where visibility is suddenly impaired, and vehicles following would have no notice of vehicles being halted on the highway. Such case is properly referred to the jury for determination.
In the instant case, however, where a motorist stopped to make a left turn on a clear, dry, day, it cannot be said that she could reasonably foresee that a following vehicle would negligently fail to halt in time to avoid a collision with vehicles halted behind.
Although defendant's stopping so as to impede traffic may be considered as a negligent act, she is liable only if such negligence was the proximate cause of the collision. Such proximate cause may only be found if the defendant might reasonably have foreseen that Woodman's negligent act of failing to stop in time would naturally and probably result from defendant's minor negligent act of impeding the flow of traffic. As was stated in the case of Town of Lyons v. Watt, 43 Colo. 238, 95 P. 949:
'* * * A defendant is not liable for acts of negligence where an injury is occasioned by an independant, intervening act which he could not have reasonably anticipated would be the result of his negligence, although the injury for which it is sought to hold him responsible would not have occurred except for his negligence.'
Under the facts peculiar to this case, I feel that, as a matter of law, Woodman's intervening act of negligence, which is the direct cause of the injuries complained of, is not a reasonably foreseeable consequence of the act of negligence performed by the defendant. As such I would affirm the action of the trial court in setting aside the verdict.