City of Pueblo v. Ratliff

Mr. Justice Frantz

dissenting:

We depart from well-recognized, long-memorialized rules of law if we accept the majority opinion. I would willingly overrule these principles if they were palpably *477wrong and were instruments of injustice; but, since I cleave to the notion that they are good, sound law, I deferentially dissent from the opinion of the majority. In doing so, I suggest that this should be the opinion of the court.

I shall not wittingly assist in bringing about the demise of the “reasonably prudent man” who has been both praised and damned by-.-judges, lawyers, professors and juris-consults. And yet . I fear such is the effect, of the majority opinion. Nor shall I knowingly discard the efficacious rule that where the evidence is conflicting, or where the facts and circumstances from which the jury may reasonably draw an inference of negligence are- shown, or when the determination of the question of negligence depends upon the inference to be drawn from a variety of facts and circumstances in the consideration of which there is room for substantial difference of opinion, the question of negligence should be submitted to the jury under proper instructions.

No one can read the record of this case without concluding that the evidence is discordant in important detail. There are present facts and circumstances from which the jury could reasonably infer negligence on the part of the defendants. The variety of the facts and circumstances in evidence are such that there could be a substantial difference of opinion on the questions of negligence and contributory negligence. Then, too, it was solely within the province of the jury to give such credit to the testimony of witnesses as it thought should be due.

There is substantial competent evidence in the record to sustain the verdict of the jury. Considering the pleadings and the evidence, the trial court, as I view it, gave complete and proper instructions to the jury. Consequently, I hold that the verdict of the jury should be, and is-,, binding upon this court.

It is undisputed that the street in question was 44 feet from curb to curb. There is evidence that.-at. the *478time in question both sides of the street were to a great extent lined with parked cars. As Ratliff pulled away from his parked position and proceeded down the street at about twenty miles per hour and while in second gear, he observed a car preparing to park on the other side of the street, and another car attempting to pass the car which was in the process of being parked. •

This passing car was to some extent in Ratliff’s lane of travel and coming toward him. Ratliff took his foot off the gas pedal and moments after the passing car returned to its lane of travel Ratliff’s right front wheel followed by his right rear wheel dropped into the hole in question. As each wheel dropped into the hole, Ratliff was thrown against the top of his car, following which pain developed in his neck.

The evidence indicates that the average width of an automobile is 6 feet 3 inches. Parked cars, a parking car, a car passing the latter, and plaintiff’s car going in an opposite direction to the latter represénted at least 31.5 feet of cars covering the width of the street. These computations would indicate an allowance of little more than a foot on each side of these cars in order to cover the whole width of the street.

Ratliff testified that he devoted his attention to the traffic situation, and that he did not notice the hole in the pavement. His testimony is to the effect that his first knowledge of the hole came when his front wheel fell into it.

The evidence is in dispute as to the size of the hole — testimony varying from 2 feet square to 3 feet square. There is a conflict in the testimony as to the depth of the hole — it varying from 6 to 10 inches.

A number of witnesses testified that the pavement around the hole was dry; others testified that moisture was present. Some witnesses testified that the pavement was clean around the hole while others testified that the circumjacent area was covered with dirt.

Witnesses differed as to the distance from which Rat*479liff first could have observed the hole. One testified that it could not be seen until one was “even with the hole”; another testified that it could be seen within a distance of “twenty feet.” Distances from other vantage points were given.

The record discloses a conflict in the evidence between the mechanics called as witnesses concerning the cooling system in the plaintiff’s car. According to plaintiff’s witness the mechanism was such that the breaking of the hose would not necessarily result in the leaking of the coolant; according to the defendants’ witnesses the cooling system was so made that the breaking of the hose would result in the coolant immediately spilling out on the pavement.

There is disagreement between the medical experts as to the physical condition of the plaintiff. It was the opinion of Ratliff’s doctors that he was suffering from a herniated disk resulting from his head coming into contact with the top of his car as the front and rear right wheels dropped into the hole. Defendants’ doctors say that Ratliff is suffering from a scalenus syndrome, an anatomical condition. One of these doctors admitted that “an injury to the neck could precipitate that condition.”

On the matter of actual notice to the City of the existence of the hole, the testimony is not in accord. In behalf of Maclndoe the evidence showed that this plumbing concern sought and obtained verbal permission from the City to cut the pavement and make the hole so that it could take care of an emergency created by a leak in a water pipe under the street. This permission was granted and acted upon twenty-one days before the accident. Testimony to this effect was denied by the City.

For purposes of establishing implied or constructive notice to the City of the existence of the hole, the evidence shows that a hole was dug twenty-one days before Ratliff struck it; that a dog had previously been pitched out of a truck when passing over the hole; that observers had noted its presence; that it had been refilled by em*480plóyees of Maclndoe two or three times during the twenty-one day period. The City introduced evidence by which it was shown that police officers, street maintenance men, and meter collectors, all of whom traversed the street during the period, had not noticed the hole. There is some evidence that the hole had been refilled with dirt a matter of days before Ratliff’s experience; that it had snowed and cars passing over the hole' gradually lifted dirt from it, thereby deepening it.

The absence of spilled coolant or of its odor at the hole after the event is greatly relied upon by the defendants as indicating that Ratliff’s car had not passed over the hole or been damaged thereby.

Lack of actual or constructive notice is strenuously urged by the City. A careful reading of this record persuades me that the trial court correctly submitted the question to the jury: It can be as justifiably said of this case as was stated in Denver v. Magivney, 44 Colo. 157, 96 Pac. 1002:

“ * * * The jurors were thus * * * carefully told that, before plaintiff could recover, she must have proven notice to the city of the specific defect in the sidewalk for a period prior to the accident sufficient to have enabled the municipality to repair the same.”

Both defendants contend that Ratliff was guilty of contributory negligence as a matter of law. They rely on his failure to observe the defect, and depend upon the language in Pueblo v. Ratliff, 131 Colo. 381, 281 P. (2d) 1021 (previous review of a former trial of this case), in which it was opined that if the defect in the street was not observable by Ratliff, the defendant city could not be chargeable with constructive notice of it; on the other hand, if it was a bad condition and observable, Ratliff was contributorily negligent as a matter of law for driving into it in broad daylight.

According to the former opinion, 131 Colo. 381, that which the City may have discovered in twenty-one days Ratliff should have observed on this occasion, and in *481view of the traffic situation confronting him, that is in my opinion fallacious reasoning; I say of it, non sequitur. Whether the City had constructive notice of the existence of the hole, under the circumstances, was left to the jury’s determination; whether Ratliff should have observed the hole before reaching it, under the circumstances, was also left to the jury for resolution.

The trial court gave adequate and proper instructions on the question of contributory negligence, and in view of the testimony the trial court rightfully submitted the question to the jury. Fact and law make the defendants’ argument on this matter bootless.

There is no evidence that Ratliff had previous knowledge of the defect in the street. Even if he had had such knowledge, his proceeding over it does not necessarily constitute negligence. A jury, properly instructed, might determine that a reasonably prudent man with knowledge of the defect was or was not negligent in driving as Ratliff did. “While knowledge of the existence of a defect or obstruction is a very important element in determining the question of contributory negligence, it is not alone decisive, unless the defect or obstruction is so great and obviously dangerous that a man of ordinary prudence would not attempt to pass over it.” City of Highlands v. Raine, 23 Colo. 295, 47 Pac. 283.

The question of distraction of Ratliff by the traffic situation confronting him at the time was peculiarly for the jury to resolve, in determining contributory negligence vel non. “Notwithstanding knowledge of a danger, justifiable distraction or forgetfulness may excuse a party injured thereby.” Mathias v. Denver Union Terminal Ry. Co., 137 Colo. 224, 323 P. (2d) 624; see Mountain States Tel. & Tel. Co. v. Sanger, 87 Colo. 369, 287 Pac. 866. His conduct should be measured by the standard of what a “reasonably prudent man” would have done under the circumstances.

Attention to the traffic situation without observing the. defect, of which there is no showing of previous *482knowledge, brings into play another rule, again an application of what the “reasonably prudent man” would do under the circumstances.

From a leading case, Denver v. Maurer, 47 Colo. 209, 106 Pac. 875, 135 Am.S.R. 210,1 quote the following:

“The defendant also insists that under the evidence, the plaintiff was, as a matter of law, guilty of contributory negligence, but for which the accident would not have happened. It happened in the business part of the city where many people were passing to and fro and where many things necessarily divert one’s eyes from the walk. There was evidence that the hose was the same color - as the -walk. The plaintiff turned her head to look for a street car. She said the hose struck her. It was her- duty to exercise reasonable care and prudence when walking on the sidewalk. She, however, was not bound, at her peril, to keep her eyes fixed on the walk constantly. She had a right to believe that the walk was free from obstructions and to act with reasonable prudence upon such belief. Whether she did act with reasonable care and prudence, under the circumstances, was eminently a question for the jury.” (Emphasis supplied.)

We are committed to the rule that the failure to observe a defect because of justifiably diverted attention may not be contributory negligence. The law exacted of Ratliff such care as a person of ordinary care, prudence, caution, and judgment would have exercised under the circumstances of this case. Whether Ratliff so acted was a matter for the jury to determine. McClay v. Philadelphia, 224 Pa. 174, 73 Atl. 188; Merchants’ Ice & Cold Storage Co. v. Bargholt, 129 Ky. 60, 33 Ky. L. 488, 110 S.W. 364, 16 Ann. Cas. 965; Knight v. City of La Grande, 127 Ore. 76, 271 Pac. 41, 61 A.L.R. 256. These are cases involving defects and diversion of attention.

“Questions of negligence, as well as contributory negligence, are generally within the province of the jury, which should not be invaded by the courts except in the *483clearest cases." (Emphasis supplied.) Lord v. Pueblo S. & R. Co., 12 Colo. 390, 21 Pac. 148; Rocky Mtn. Fuel Co. v. Tucker, 72 Colo. 308, 211 Pac. 383. I submit that this is not that clearest case which should, move us to intervene.

“When the questions of negligence or contributory negligence depend upon facts' to be determined from conflicting evidence, or from inferences to be drawn from facts and circumstances of that character that different intelligent minds may honestly reach different conclusions, they should be left to the determination of the jury.” Richardson v. El Paso Cons. Gold Min. Co., 51 Colo. 440, 118 Pac. 982. See Denver Tramway Co. v. Wright, 47 Colo. 366, 107 Pac. 1074; Nichols v. C. B. & Q. R.R. Co., 44 Colo. 501, 98 Pac. 808; Denver v. Maurer, supra.

And in leaving these questions to the jury for resolution, this fact-finding body answers the test: What would a person of ordinary prudence have regarded as reasonably proper under the circumstances? Rocky Mtn. Fuel Co. v. Tucker, supra; Richardson v. El Paso Cons. Gold Min. Co., supra.

That the verdict is excessive forms the basis for asserted ground of reversal. In part the defendants say that the wearing of the brace by Ratliff during the trial aroused the sympathy and prejudice of the jury. The doctors who treated Ratliff testified that they recommended he wear the brace for comfort, and to relieve pressure. Ratliff stated that he needed the brace during the trial for his comfort and to avoid distress.

A study of the evidence precludes us from holding that the jury acted unadvisedly or from passion and prejudice. Ample evidence is present to sustain the award. The trial court, being in a much better position than this court to determine the question of an excessive verdict, deemed the award here proper; hence, we should be loath to disturb this element of the case. Edwards v. Quackenbush, 112 Colo. 337, 149 P. (2d) 809. An *484award of $33,918.00 for a herniated cervical disk in the neck was not considered excessive by this court in Thomas v. Dunne, 131 Colo. 20, 279 P. (2d) 427.

The witness Cleland, a mechanic called by Ratliff, was permitted, over objection, to give his opinion as to the depth of the hole, his opinion being predicated on damage to the car. Ison v. Stewart, 105 Colo. 55, 94 P. (2d) 701, appears to sanction such testimony. His conclusions, however, were merely cumulative of other substantial testimony on this matter, and if held inadmissible, could not be held to be prejudicial. Harmon v. Callahan, 187 Ill. App. 312; and see Godsmark v. Bennett, 52 Colo. 198, 120 Pac. 151, Ann. Cas. 1913 C 1266; Chittenden v. King Shoe Co., 38 Colo. 187, 88 Pac. 183.

A doctor for the defense stated that in his opinion Ratliff was suffering from scalenus syndrome. On cross-examination, in relating his findings from X-rays, he testified, over objection of the defendants, that even though the X-rays revealed no abnormalities, still it was “possible” that a herniated disk existed in Ratliff’s neck. Error is asserted based upon the concept that such expert could testify only to probabilities and not possibilities.

Cross-examination is the most potent weapon known to the law for weakening or disproving the case of the adverse party, and for testing the recollection, fairness, veracity and power of observation of the witness, and to disclose the improbabilities of his testimony. The testimony elicited upon cross-examination, and here attacked, does not fall within the interdiction that an expert may only testify to the probabilities in connection with injuries sustained; it related solely to the possibility of an X-ray not revealing- a condition although the condition may exist. It attacked a basis upon which he founded an opinion, and from that standpoint had a weakening effect upon such opinion. It was proper cross-examination.

It was sought to impeach Ratliff in connection with *485an excavation in the sidewalk opposite the hole in. the street. Objection to this attempted impeachment was sustained. Defendants contend that in this the trial court committed error. Clearly this was impeachment on a collateral matter,-, and hence the trial court properly ruled on the objection. Davis v. Bonebrake, 135 Colo. 506, 313 P. (2d) 982.

Finding no .error, I urge that we affirm the judgment.

Mr. Justice Moore and Mr. Justice Hall concur in this dissent. "