Opinion
Rehearing Denied April 2, 1970.
Certiorari Denied May 28, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Evidence in action for personal injuries sustained when ranch employee tumbled out onto ground from pickup being driven by employer at speed of 17 to 20 miles per hour in pasture in an attempt to cut bull from other cattle did not establish that employer was free of negligence as matter of law, or that employee was guilty of contributory negligence or had assumed risk in his employment as matter of law.
Arnold, Ross & Leh, James R. Leh, Sterling, for plaintiff in error.
Eby & Reddin, George M. Reddin, Brush, for defendant in error.
COYTE, 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 authority vested in the Supreme Court.
The parties will be referred to as they appeared in the trial court. Plaintiff in error was defendant and defendant in error was plaintiff.
Plaintiff was a ranch employee of defendant. On the day in question, plaintiff and defendant, in defendant's 4-wheel drive Ford pickup with defendant's 14-year-old son, had gone to defendant's ranch to care for defendant's cattle.
When they had finished feeding the cattle, they noticed one of defendant's bulls in with some heifers in another field. They stopped at the gate to the pasture where the bull was located, as defendant had determined to cut the bull from the heifers and drive him to another field with the use of the pickup.
Plaintiff opened the gate and defendant told him to get in the pickup, rather than to wait at the gate. As plaintiff got into the pickup, defendant asked him to reshut the door to insure that it was completely closed, which he did.
The pasture where the bull was located had clumps not over four inches in height throughout the field. The pickup had four gears forward and was being driven in second gear, the next lowest gear. At the time of the accident, defendant was driving between 17 to 20 miles per hour. The boy was sitting in the middle and plaintiff was on the right side with his right arm out the window, banging on the side of the door trying to scare the bull.
Defendant encountered difficulty in cutting the bull from the other cattle and had been chasing the bull four or five minutes when the bull suddenly cut sharply to the left in front of the pickup. Defendant, following the bull, swerved the pickup sharply to the left. As defendant swerved, plaintiff and the defendant's 14-year-old son tumbled from the pickup out onto the ground. Defendant stopped the pickup within a few feet.
Plaintiff at first said the sharp turn threw him against the door. Later, he said he didn't know what happened. He was just 'in and out' of the pickup. Defendant testified that the turn could have thrown plaintiff against the door. Two garage mechanics testified that they had examined the door and the locking mechanism of the door, and that there was nothing wrong with either; that it Should not have come open without someone activating the door handle.
Plaintiff received severe injuries in the fall and brought suit against defendant based on negligence. Defendant answered denying negligence and affirmatively alleged contributory negligence and assumption of risk on the part of plaintiff. Defendant moved for a directed verdict at the conclusion of plaintiff's case and at the conclusion of the entire case. After the verdict in favor of plaintiff, defendant moved for judgment notwithstanding the verdict.
There was no objection made to any instruction given or refused, and no error is alleged as to any of the court's rulings during the course of the trial.
Defendant argues that there was no evidence that he was negligent; no evidence that the door opened as a result of the defendant's turn; and further, that even if he were negligent, there was still no evidence to show that his negligence was the proximate cause of plaintiff's injuries. He also argues that as a matter of law plaintiff was guilty of contributory negligence and that plaintiff had assumed the risk of his employment.
In the case of Jasper v. City and County of Denver, 144 Colo. 43, 354 P.2d 1028, the court cited Prosser on Torts (2d ed.), at page 222, as follows:
'The plaintiff is not, however, required to prove his case beyond a reasonable doubt. He need not negative entirely the possibility that the defendant's conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. * * *"
In Gonzales v. Safeway Stores, Inc., 147 Colo. 358, 363 P.2d 667, the court in quoting Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964, stated:
"In passing upon a motion for a directed verdict the trial court Must view the evidence in the light most favorable to the party against whom the motion is directed. Every reasonable inference to be drawn from the evidence presented is to be considered in the light most favorable to such party. A motion for directed verdict can only be granted where the evidence, when so considered, compels the conclusion that the minds of reasonable men could not be in disagreement and that no evidence, or legitimate inference arising therefrom, has been received or shown upon which a jury's verdict against the moving party could be sustained. Brent v. Bank of Aurora, 132 Colo. 577, 291 P.2d 391; Gray v. Turner, 142 Colo. 340, 350 P.2d 1043.' (Emphasis supplied.) See, also, Swanson v. McQuown, 139 Colo. 442, 340 P.2d 1063.'
The facts disclosed by the record before us do not establish that defendant was free of negligence as a matter of law, or that plaintiff was guilty of contributory negligence or had assumed the risk of his employment as a matter of law.
The judgment is affirmed.
DUFFORD and DWYER, JJ., concur.