Stahl v. Cooper

190 P.2d 891, 117 Colo. 468

Opinions

Mr. Justice Stone

delivered the opinion of the court.

The parties appeared in reverse order in the trial court, and we will refer to them as there appearing. Plaintiff and his wife, Rita C. Cooper, while walking north along the east side of Franklin street in the city of -Denver, and crossing Sixth avenue, shortly after noon on a clear day, were struck by a panel delivery truck being driven west on Sixth avenue by defendant’s agent. The driver of the truck did not testify. Neither plaintiff nor his wife was aware of the approach of the truck nor knew the cause of the accident, and there was no other eyewitness. Plaintiff and his wife each testified that they were crossing the highway within a crosswalk at the end of the block which is an unregulated intersection. This is corroborated by the surrounding circumstances and there is no substantial contradiction. There was evidence of tire marks, distance traveled by the truck after the accident, damage to the truck and injury to plaintiff and his wife, sufficient to support a finding of excessive speed, defective brakes, or careless driving of defendant’s truck. Sixth avenue is approximately forty-two feet wide from curb to curb and carries two parallel streetcar tracks. Plaintiff and his wife each testified that when they reached the south curb they looked carefully in both directions and saw no approaching traffic, that the pavement was uneven and required care in walking upon it; that they had crossed this street many times; that after stepping off the south curb neither of them again looked either to the right or to the left, and that they had crossed both street car tracks and were about halfway between the last rail and the curb when the accident occurred. Defendant here seeks reversal of an unfavorable judgment.

We have considered and disposed of the first two grounds urged for reversal in our opinion in Stahl v. Rita C. Cooper, 117 Colo. 445, 188 P. (2d) 894, which grew out of the same accident and was based on equivalent testimony.

It is urged in the present case that the court further erred in receiving in evidence a statement said to have been made by the driver of defendant’s truck subsequent to the accident. A police officer who was called to the scene of the accident and assisted in placing plaintiff and Mrs. Cooper in the ambulance for their removal to the hospital, testified that some ten minutes thereafter he interrogated the driver of defendant’s truck, who was standing at the intersection corner, as to the accident, and this officer was permitted, over objection, to testify as to their conversation which was in substance that the driver stated that the pedestrians started to go one way and then another, and then they ran in the path of the truck and he hit them, and that he didn’t know which direction they were walking previous to the accident.

Since the driver was not a defendant and had not been called as a witness, such statement was admissible, if at all, only as part of the res gestae. “Res gestae are events speaking for themselves, through the instinctive words and acts of participants, not the words and acts of participants when narrating the events. What is done or said by participants, under the immediate spur of a transaction, becomes thus part of the transaction, because it is then the transaction that thus speaks.” Graves v. People, 18 Colo. 170, 32 Pac. 63. Such a statement, if part of the res gestae, must be in the nature of an exclamation, rather than an explanation; it must be spontaneous and instinctive rather than deliberate. While the tendency is to broaden, rather than to restrict, the rule (Heg v. Mullen, 115 Wash. 252, 197 Pac. 51), and the determination as to admissibility in great measure rests in the discretion of the trial judge (Maynard v. Hall, 61 Ariz. 32, 143 P., (2d) 884), still we might be seriously concerned with the challenge here made if the evidence so elicited had proven prejudicial to defendant. No prejudice therein is demonstrated in defendant’s brief and none is apparent to us. Harmless error is not ground for reversal.

It is further urged that the court, over objection, improperly instructed the jury with respect to the Denver traffic ordinances and the applicability of such ordinances, and in refusing properly to instruct the jury as to the pedestrian’s duty in crossing the street.

In one instruction the court quoted the applicable provisions of the city ordinances entitled “Pedestrians’ Right of Way,” “Lights and Brakes,” “Reckless Driving,” and “Careless Driving and Speeding.” The portion of the instruction referring to pedestrians’ right of way is as follows:

“The operator of any vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at the end of a block, except at intersections where the movement of traffic is being regulated by police officers or traffic control signals or at any point where a pedestrian tunnel or overhead crossing has been provided.

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“It shall be unlawful for a pedestrian to cross a roadway at any point other than within a marked or unmarked crosswalk, on any street designated as a Thru Street, or on any street where the parking of motor vehicles is limited to one or two hours, as herein provided by this Ordinance. On other roadways within the City and County of Denver, a pedestrian crossing such roadway at any other point than within a marked or unmarked crosswalk, shall yield the right-of-way to vehicles upon the roadway provided that this provision shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of pedestrians.”

Following that instruction, the court gave a general instruction, Number 10, applicable to each of said ordinance provisions, to wit: “The court further instructs the jury that whenever the violation of a city ordinance proximately causes injury, such violation is termed negligence per se, that is to say negligence in and of itself and you are instructed that if you find that the injuries of the plaintiff and of his wife, Rita C. Cooper, were brought about as the direct and proximate result of the violation by the defendant’s employee of any of the provisions of the foregoing ordinances of the City and County of Denver, such violation renders the defendant liable to the plaintiff.” Emphasis supplied.

This instruction in itself is objectionable in that under it, in case the jury found that plaintiff’s injury was the proximate result of the violation of an ordinance, “such violation renders the defendant liable to the plaintiff,” even though plaintiff may have been guilty of concurrent contributory negligence, in which event defendant would not be liable. Injuries may be the result of several concurring proximate causes (Louisville & N.R. Co. v. Maddox, 236 Ala. 594, 183 So. 849, 118 A.L.R. 1318; Rider v. Syracuse R.T. Co., 171 N.Y. 139, 63 N.E. 836; Prof. Joseph H. Beale, 33 Har. L. Rev. 633 at 639), and if an act of plaintiff is one of them, he can have no recovery. Under the rule that the instructions should be read together, it may be urged that it was cured by the subsequent instructions, in common form, as to contributory negligence and the law when both parties are at fault; but the positive declaration in the former instruction predicating absolute liability upon violation of an ordinance proximately causing injury is inconsistent with and contradictory of the subsequent instructions as to contributory negligence and fault of both parties, and likely to confuse the jury as to which should be followed. The quoted instruction, therefore, should have qualified liability by exception in case of contributory negligence.

Following the instruction above quoted is a definition of sidewalks and crosswalks; then the following instruction, Number 12: “Reasonably construed, Section 15 (a) of the Denver ordinance, giving a pedestrian the right of way means that when people are crossing a street at an intersection to which the provisions of the ordinances are applicable, and a motor truck is approaching the crossing at a speed and on a course such that either the pedestrian or the truck must alter speed or direction to avoid a collision, the driver of the truck must act so as to avoid running down the pedestrians and his failure to do so is a violation of the ordinances and constitutes negligence.” It will be noted as to this instruction, given after the general instruction regarding all the ordinances, including that concerning pedestrian’s right of way: first, that it singles out the right-of-way ordinance specially as though it were of extraordinary importance; second, that by this instruction if the jury found, as it doubtless did find, that plaintiff pedestrian was crossing within the crosswalk, then it was required to find defendant negligent regardless of the circumstances, for under its mandate “the driver of the truck must act so as to avoid running down the pedestrians.”

The right of way granted pedestrians by this ordinance does not give such extensive protection as stated in the instruction. We believe the better rule to be that the motorist is not an insurer of a pedestrian’s safety, but is required only to use reasonable care in yielding the right of way; that the pedestrian’s right is not absolute, but relative. In McDonald v. Wickstrand, 206 Wis. 58, 238 N.W. 820, plaintiff pedestrian when at the intersection looked in both directions and did not. see any automobiles approaching. He looked again when he reached the center of the street and saw no cars. He did not see defendant’s car before it struck him within a few feet of the far curb. The court said: “A pedestrian is not relieved of the duty to exercise ordinary care for his own safety. He cannot act recklessly nor rely entirely upon the fact that'he has the right of way, nor unreasonably intrude himself into the midst of traffic. The danger of such proceeding would naturally hold him back, and if carelessly he gets himself into such position the law leaves him remediless. However, the fact that he has the right of way, coupled with a reasonable observation before entering upon the crossing, are circum stances to be considered by the jury in determining whether or not his conduct is negligent.” The Virginia court said, where a similar statute was involved: “While a pedestrian in crossing streets at intersections has the right of way over motor vehicles, he must exercise such care for his own safety as a person of ordinary prudence would exercise under like circumstances. He cannot blindly or negligently expose himself to danger. But if the hypothetical ordinarily prudent person could from the circumstances reasonably believe that the crossing could be made in safety and that there was no car sufficiently near to put him on notice of approaching danger, he is not required to be continually looking and listening to see if automobiles are approaching, under penalty that upon failure to do so, if injured, his negligence must be conclusively presumed.” Sawyer v. Blankenship, 160 Va. 651, 169 S.E. 551. And the Iowa court: “If * * * the law recognizes a right of precedence in the use of a crossing, it does not mean that the persons having such right of way may loiter upon or obstruct the crossing to the exclusion of others or to the interruption of street traffic, but rather that, when two or more persons moving in different directions approach a crossing at the same time, or in such manner that, if both or all continue their respective courses, there is danger of collision, then the one having the preference is entitled to the first use of such crossing, and it is the duty of others to give him reasonable, opportunity to do so.” Switzer v. Baker, 178 Ia. 1063, 160 N.W. 372. See, annotation 96 A.L.R. 786 and other cases therein cited; also, 2 Blashfield, Cyclopedia of Automobile Law and Practice, §1272.

We believe that the intersection right-of-way rule between pedestrian and car requires like construction as the similar ordinance provision as to right-of-way between two approaching cars where we have followed the weight of authority in adopting the “relative” rather than the “absolute” construction. See, annotation 136 . As to the latter ordinance we have said: “As we understand the right of way rule of the City Code, we believe that it is relative and not exclusive; it certainly does not justify one who is entitled to it in insisting on the right of way when, by the exercise of reasonable judgment and care, he must, or should, know that a collision is likely to occur with resulting personal injury and property damage. One who insists upon the exercise of his right of way under circumstances which would cause a reasonably cautious and prudent person to yield the same is clearly guilty of either negligence or contributory negligence, as the case may be.” Denver Equipment Co. v. Newell, 115 Colo. 23, 169 P. (2d) 174.

The Washington courts are among those' construing violation of a statute or ordinance as constituting negligence per se. Yet they have declared'- the obligation as between driver and pedestrian not to be an absolute obligation, but as one of reasonable care. “When the accident occurs at street intersections, the pedestrian has the right of way and the burden is on the driver to establish that he used every reasonable care to avoid inflicting the injury.” Elmberg v. Pielow, 113 Wash. 589, 194 Pac. 549. Under an Oregon statute requiring the driver to' yield the right of way to a pedestrian within a crosswalk at the end of á block, the court said, in Cline v. Bush, 152 Ore. 63, 52 P. (2d) 652, “The pedestrian, in exercising his right of way at street intersections, must use ordinary -care or such care as a reasonably prudent person would use under -similar circumstances and conditions commensurate with the danger to be apprehended. The driver of a car at such a crossing must do the same.”

Further, the violation of such an ordinance is not always negligence per se. In Crosby v. Canino, 84 Colo. 225, 268 Pac. 1021, we said: “We have held that a failure to obey an ordinance passed for the protection of the public is negligence per se; * * * ■ But this is not an inflexible rule, applicable to every conceivable situation. * * * Traffic ordinances are to be given a reasonable construction. * * * .So, notwithstanding the existence of an ordinance requiring a vehicle meeting another to pass to the right, a person is not negligent per se if he turns his vehicle to the left, and thus passes a vehicle approaching him on the wrong side of the road in such manner as to make it impossible or impractical to pass to the right. If,-in turning to the left, he acts as a person of ordinary care and prudence would act in the circumstance, he is not guilty of negligence; otherwise, he is.” See, Geri v. Bender, 25 Wash. (2d) 50, 168 P. (2d) 144, and Bissell v. Seattle, etc. Motor Freight, 25 Wash. (2d) 68, 168 P. (2d) 390.

It is urged that instruction Number 12 is taken verbatim from our opinion in Publix Cab Co. v. Phillips, 98 Colo. 542, 58 P. (2d) 486. As often said, a general statement in an opinion, particularly where it is obiter dictum,, dobs not constitute blanket approval of its use as .an instruction.' In the Publix Cab Company case the question whether thb ordinance should be given absolute' or relative, construction was not involved.

Plaintiff in error further urges error in the refusal of the trial court to instruct as to a pedestrian’s duties in crossing a street. The court gave only the general stock instructions as to contributory negligence, but instructed in detail in the words of the ordinances with further emphasis by instruction No. 12 as to specific matters which would constitute negligence on the part of defendant’s driver. Defendant tendered an instruction as to the duty of pedestrians to keep vigilant watch in crossing a street, and we believe he was entitled to an instruction to that effect.

Considering all these ■ matters, together with the unusually large verdict and judgment, we are convinced that the instructions were confusing and prejudicial to ■defendant and require reversal of the judgment.

Although such conclusion is determinative of the case, we further cáll attention to defendant’s objec tion to the instruction as to damages, for the avoidance of error in retrial. After the usual instruction as to expenses plaintiff had paid or obligated himself to pay to be considered in determining the amount of damages in case the jury found for plaintiff, the court further required the jury to consider, “The amount of all expenses which the plaintiff may necessarily or reasonably incur in the future for hospital accommodations, physicians, medicine, nurses, and orthopedic appliances in endeavoring to be cured or relieved of such injuries as he has sustained as a result of this accident and other disbursements which he may be reasonably expected to be required to pay as a result of these injuries in so far as they may be shown by the evidence, but not to exceed the sum of $1,000.00 for these particular items.” There was no evidence whatever before the jury as to future expenses. For that reason the instruction was erroneous. It is only when there is substantial evidence that future expenditures will be required that such an instruction is proper. Cookman v. Caldwell, 64 Colo. 206, 170 Pac. 952; Seeing Denver Co. v. Morgan, 66 Colo. 565, 185 Pac. 339. It was prejudicial in leading the jury to suppose by its inference that there had been evidence of future expenses.

Accordingly, the judgment is reversed and the case remanded.

Mr. Justice Hilliard and Mr. Justice Hays dissent.