Opinion
No. 70-654 (Supreme Court No. 24343)
Decided March 30, 1971.
Action on injuries sustained by four-year-old child when he ran into street and was struck by defendant's car. From dismissal on basis that plaintiff had failed to establish prima facie case, appeal was taken.
Reversed
1. AUTOMOBILES — Observed — Four-Year-Old — Running — Not Apply Brakes — Prima Facie Case. Where the evidence showed that defendant, while driving at close to 30 m.p.h. and at a point 115 feet from ultimate point of impact, noticed two small boys running toward the street; and showed that plaintiff, not yet four years old, continued to run toward street when the defendant lost sight of him behind parked car; and that defendant, upon observing plaintiff, took his foot off accelerator but did not apply brake nor sound horn with result that plaintiff was injured when he ran in front of defendant's vehicle, the evidence was sufficient to establish a prima facie case of negligence.
2. WITNESSES — Expert — Stated Basis — Opinion — Speed — Braking Distance — — Testimony Proper. Where expert witness, after stating fully the data and calculations used to reach his conclusions, gave his opinion of the speed of defendant's car and the time and distance it would take to bring the car to a stop on the basis of the facts which were in evidence and where he testified that he was conservative in all of his calculations resolving all doubts in favor of defendant, such testimony was quite proper and should not have been stricken.
3. Expert Testimony — Basis — Other Opinion Testimony — Properly Stricken. Where portion of expert's testimony was based on the opinion testimony of another witness as to the running speed of a four-year-old boy, this portion of witness' testimony was properly stricken.
Error to the District Court of Jefferson County, Honorable Christian D. Stoner, Judge.
Martin and Riggs, Marshall T. Riggs, for plaintiff in error.
Burnett, Watson, Horan and Hilgers, Edward E. Carelli, 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.
This is an action to recover damages for personal injuries sustained by Eric S. Herness, a minor, in an automobile-pedestrian collision. Trial was to a jury. After completion of the plaintiff's case, the trial judge granted defendant's motion to dismiss on the grounds that the plaintiff had failed to sustain his burden of presenting a prima facie case of negligence. Judgment was entered in favor of the defendant. The plaintiff appeals this adverse ruling.
The evidence shows that on May 18, 1965, at approximately 2:30 p.m., defendant was driving south on Knox Court between 13th and 14th Avenues in Denver, Colorado. The area consists of single and multiple unit dwellings. Knox Court is a two-way through street, 36 feet in width, one lane for southbound traffic and one lane for northbound traffic. Automobiles were parked intermittently on both sides of the street. The weather and road conditions were good. The defendant was traveling close to 30 m.p.h. which was the posted limit. He was approximately 115 feet north of the ultimate point of impact when he observed two small boys running toward the street on a walk leading from a building which was located approximately 40 feet west of the west curb of Knox Court. One of the two boys turned and proceeded north on the sidewalk paralleling the west side of the street. The other boy, the plaintiff who was not yet 4 years old, continued to run in a southeasterly direction toward the street when the defendant lost sight of him behind a parked car. The defendant took his foot off the accelerator and moved it to the brake; however, he did not apply the brake, nor did he sound his horn. When the defendant's automobile was at a point approximately even with the parked car behind which the boy had disappeared, the boy ran out in front of defendant's vehicle. Defendant immediately applied his brakes and swerved to the left, but was not able to avert a collision.
The plaintiff contends that these facts established a prima facie case of negligence, whereas the defendant claims they did not.
There have been three recent cases in Colorado dealing with similar problems.
In Pence v. Chaudet, 163 Colo. 104, 428 P.2d 705, the Supreme Court held that the trial court was correct in directing a verdict for the defendant on the ground that there was insufficient evidence to establish negligence on the part of the defendant. In that case, a 6-year-old boy was playing near a motor court when he suddenly and without notice dashed into the street running directly into the path of defendant's car. The defendant immediately applied his brakes; however, there was neither the time nor the opportunity to stop the car or otherwise avoid striking the boy.
In McSpadden v. Minick, 159 Colo. 556, 413 P.2d 463, the Supreme Court upheld the trial court's dismissal of plaintiff's claim on the grounds that the plaintiff failed to establish defendant's negligence. In that case, defendant hit a 4 1/2 year-old boy as the child was running across a highway at night. The boy was about 100 feet from him when first seen by defendant. The defendant immediately applied his brakes and by the time he struck the boy, the car was almost at a stop.
In Benallo v. Bare, 162 Colo. 22, 427 P.2d 323, a 6-year-old boy was struck by defendant's car as he walked across a residential street. As in the case at hand, the accident took place in mid-afternoon on a clear day. The defendant there was also driving at 25 to 30 m.p.h. in his proper lane of travel. The defendant in that case observed the plaintiff take mail from a mail box and proceed to cross the street 75 feet in front of him. That defendant testified that he too took his foot off the accelerator, but did not apply his brakes. Defendant did not observe the plaintiff for a brief moment while the defendant waved at the driver of the mail truck passing in the opposite direction. By the time the defendant's attention was directed back to the plaintiff, it was too late to stop in time. In that case, the Supreme Court upheld the trial court in directing a verdict in favor of the plaintiff as to the defendant's negligence.
Pence v. Chaudet and McSpadden v. Minick, supra, are clearly distinguishable because in both cases the driver had no notice that the child was about to run into the street. Furthermore, in both cases, the defendant immediately applied their brakes when they first observed the child.
In the case before us, the defendant first observed the boy running toward the street. When the defendant lost sight of the boy because of the parked cars, the boy was still headed toward the street. Although the defendant did not apply his brakes immediately, he was apparently conscious of some potential danger since he moved his foot from the accelerator to the brake pedal.
This fact situation is clearly more similar to Benallo v. Bare, supra. The defendant both here and in that case was aware of the child's presence and impending peril. In both cases, had the defendant immediately applied his brakes when he first became aware of the child's peril, instead of merely taking his foot off the accelerator, the accident might have been avoided.
[1] Although we do not hold as a matter of law that the evidence was sufficient to warrant a directed verdict for the plaintiff on the issue of negligence, as in Benallo v. Bare, supra, we do hold that the plaintiff presented sufficient evidence to establish a prima facie case of negligence. The court should take the issue of negligence from the jury only in the clearest of cases where the facts are undisputed and reasonable men could draw but one conclusion therefrom. Blount v. Romero, 157 Colo. 130, 401 P.2d 611; Patterson v. Becker, 122 Colo. 258, 222 P.2d 780.
[2] For the guidance of the court upon retrial, we will consider another alleged error which is directed to the court's order striking from the record all testimony given by an accident reconstruction expert. The qualification of the witness as an expert in the field was not questioned; however, his testimony was stricken because it was all "speculation." The witness, after stating fully the data and calculations used to reach his conclusions, gave his opinion of the speed of defendant's car and the time and distance it would take to bring the car to a stop on the basis of the facts which were in evidence. The witness testified that he was conservative in all of his calculations resolving all doubts in favor of the defendant. Such testimony is quite proper in a case of this nature. See Ison v. Stewart, 105 Colo. 55, 94 P.2d 701.
[3] The defendant further objected to a portion of the expert's testimony because it was based in part on facts in evidence and in part on the opinion of another expert who had testified as to the running speed of a 4-year-old boy such as the plaintiff. This portion of the testimony was properly stricken. It was based on the opinion testimony of another witness, and if allowed, would have been an invasion of the province of the jury in passing on the credibility of the other witness and the weight to be given to such testimony. Young v. Colorado National Bank, 148 Colo. 104, 365 P.2d 701; O'Brien v. Wallace, 137 Colo. 253, 324 P.2d 1028.
The judgment is reversed and the cause remanded for a new trial on all issued consistent with the directions stated herein.
CHIEF JUDGE SILVERSTEIN and JUDGE DUFFORD concur.