Opinion
No. 70-256 (Supreme Court No. 23052)
Decided May 19, 1970. Rehearing denied June 9, 1970. Certiorari denied August 27, 1970.
Action for damages for personal injuries suffered by plaintiff when car in which she was a passenger stalled on a busy, divided highway, and was struck from behind by defendant's automobile. Plaintiff appealed an adverse jury verdict. Affirmed
1. AUTOMOBILES — Passenger Alone — Stalled Car — Busy Highway — No Warning — Contributory Negligence — Jury Question. Where plaintiff-passenger made no effort to warn oncoming traffic that her car was stalled in a travel lane of a divided highway even though she remained alone in the car for some time and even though she testified that the "traffic was heavy and busy," the issue of whether or not she was contributorily negligent was a jury question.
2. INSTRUCTIONS, CIVIL — Highway User — Assume — Others Use — Lawful Manner — Until Contrary — "Warning, Notice or Knowledge" — Not Prejudicial — Plaintiff. A jury instruction to the effect that a highway user may assume that others will use the highway in a lawful manner "until he has warning, notice or knowledge to the contrary" is not prejudicial to the plaintiff.
Error to the District Court of the City and County of Denver, Honorable Gerald E. McAuliffe, Judge.
Myrick, Criswell and Branney, William Myrick, for plaintiff in error.
Zarlengo, Mott and Carlin, Leonard V. Carlin, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error was plaintiff in the trial court. The parties appear in the same order in which they appeared in the trial court.
Plaintiff's daughter was driving the family automobile to school. Two of her classmates were with her. Her mother was riding in the back seat and was to take the car when the girls arrived at school. They were proceeding west on Hampden Avenue. As they reached a point approximately 1,000 feet west of the intersection of Colorado Boulevard and Hampden, the car sputtered and stopped on the inside traffic lane. The daughter attempted to get the car started but was unsuccessful.
Shortly thereafter a friend came by and took the three girls to school. At this point plaintiff got out of the rear seat and into the front seat of the car. Another friend came by and plaintiff requested the friend to go to a filling station for help. A third person came by who offered aid, which was declined.
The defendant, proceeding west on Hampden on the inside lane, stopped for the stop light at Colorado Boulevard and Hampden. He casually noticed plaintiff's yellow automobile about 1,000 feet down the road, but it never occurred to him that it was stopped. As the light turned green, the defendant proceeded on west; a car cut in front of him, and both proceeded westerly on the inside lane. The car ahead of defendant changed lanes, and at this point defendant noticed plaintiff's automobile approximately 100 feet in front of him and crashed into the rear end.
Plaintiff filed suit against defendant for injuries received in the collision. Defendant filed answer which included the affirmative defense of contributory negligence. The case was tried to a jury which rendered a verdict in favor of defendant.
Plaintiff claims that the court erred in allowing the case to be submitted to the jury on the question of contributory negligence and in the giving of Instruction No. 11.
I.
It is plaintiff's contention that at all times she was in strict compliance with the applicable statutes of the State of Colorado and the ordinances of the City and County of Denver; and that as a matter of law she was not guilty of contributory negligence. Defendant concedes that plaintiff was not guilty of contributory negligence in the first instance, but argues that whether or not plaintiff's subsequent conduct amounted to contributory negligence was a question of fact for the jury to consider. We agree with this contention.
After the car stopped, plaintiff got out of the back seat of the car and got into the front seat. She testified that the "traffic was heavy and busy," yet she made no effort to warn oncoming traffic of her plight. We cannot say as a matter of law that the failure of plaintiff to warn oncoming traffic amounted to contributory negligence. On the other hand, we cannot say as a matter of law that it did not. This was a matter for the jury to consider, and it would have been error had the court not instructed the jury on the issue of contributory negligence.
Basically, the plaintiff is arguing that C.R.S. 1963, 13-5-71 and 13-5-92(1) set forth a comprehensive standard of conduct of a person parking on a highway, and since she has complied with these standards, she cannot be guilty of contributory negligence.
Assuming for the sake of argument that the plaintiff did comply with both of the above statutes, the general rule is:
"The statutory standard is only a minimum, and does not necessarily preclude a finding that the actor was negligent in failing to take additional precautions." Prosser on Torts, Second Edition, Sec. 34, p. 163.
In this case —
". . . The true measure of conduct required of the plaintiff, is what would an ordinarily prudent person have done under the circumstances as they then appeared to exist. . . ." Skorey Co. v. Canino, 142 Colo. 411, 350 P.2d 1069. Also see Hogue v. C. S. Ry. Co., 110 Colo. 552, 136 P.2d 276.
The general rule as stated in 60 C.J.S., Motor Vehicles, Sec. 335, is:
"The operator of a standing or parked vehicle which constitutes a source of danger to other users of the highway is generally bound to exercise ordinary or reasonable care to give adequate warning or notice to approaching traffic of the presence of the standing vehicle, and such duty exists irrespective of the reason for stopping the vehicle on the highway. So the driver of the stopped vehicle must take such precautions as would reasonably be calculated to prevent injury, whether by the use of lights, flags, guards, or other practical means, and the failure to give warning may constitute negligence, even in the absence of any specific duty imposed by governmental regulations." Pages 779-780 and case cited.
II.
Plaintiff further argues that the court erred in giving Instruction No. 11. This instruction provided as follows:
"The jury is instructed a user of a highway may assume until he has warning, notice or knowledge to the contrary that other users of the highway will use them in a lawful manner and until he has such warning, notice or knowledge, he is entitled to govern his actions in accord with such assumption."
This instruction is in the same general language as Colorado Jury Instructions 11:8. There the instruction says:
". . . in the absence of reasonable grounds to think otherwise. . ."
The instruction complained of says:
". . . until he has warning, notice or knowledge to the contrary. . ."
This wording does not relieve defendant from his negligence (if in fact he were negligent) in failing to observe plaintiff in time to avoid the accident; particularly, when read in conjunction with Instruction No. 6, the general instruction on negligence.
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. In the instant case, plaintiff was not prejudiced by the giving of Instruction No. 11. This instruction requires warning, notice or knowledge. The use of the conjunction "or" puts the requirement in the alternative, and does not require actual knowledge.
Judgment affirmed.
JUDGE DUFFORD and JUDGE PIERCE concur.