inflexible rule in Colorado

1913Co. v. Tietze, 16 Colo. App., 205 , 210, 64 Pac., 773 , 775.” Mr. Bacon, in his work on Benefit Societies, says, in sec. 329: “The question in all cases of this character is the proper interpretation of a contract, and the point of inquiry is, what obligations the parties must, from the language used, with relation to the subject-matter and the circumstances, be reasonably supposed to have intended to assume.” And, in the same section, the learned author, discussing a clause in a benefit certificate relieving the order from liability in case the insured should commit suicide, while sane or ins

1913Co. v. Tietze, 16 Colo. App., 205 , 210, 64 Pac., 773 , 775.” Mr. Bacon, in his work on Benefit Societies, says, in sec. 329: “The question in all cases of this character is the proper interpretation of a contract, and the point of inquiry is, what obligations the parties must, from the language used, with relation to the subject-matter and the circumstances, be reasonably supposed to have intended to assume.” And, in the same section, the learned author, discussing a clause in a benefit certificate relieving the order from liability in case the insured should commit suicide, while sane or ins

1948In 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

1948In 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

1948If,-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 .

1948If, 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 . [8] 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 .

1948If,-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 .

1948If, 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 . [8] 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 .

2014Thus, despite some contrary authority, the better view "is that the trial judge should not be rigidly bound by an inflexible rule but rather that it should be exercised on a case-by-case basis giving consideration to all pertinent aspects including the lapse of time which reasonably and properly bear upon the likelihood of the statement being an accurate recordation of the event to which the memory related." Lewis, 954 F.2d at 1394 (quoting United States v. Senak, 527 F.2d 129 , 141 (7th Cir.1975) ).

2014Thus, despite some contrary authority, the better view "is that the trial judge should not be rigidly bound by an inflexible rule but rather that it should be exercised on a case-by-case basis giving consideration to all pertinent aspects including the lapse of time which reasonably and properly bear upon the likelihood of the statement being an accurate recordation of the event to which the memory related." Lewis, 954 F.2d at 1394 (quoting United States v. Senak, 527 F.2d 129 , 141 (7th Cir.1975) ).

1978Stahl v. Cooper, 117 Colo. 468 , 190 P.2d 891 .

1978Stahl v. Cooper, 117 Colo. 468 , 190 P.2d 891 .

1975E. g., Frohlick Crane Services, Inc., v. Mack, 182 Colo. 34 , 510 P.2d 891 (1973); People v. Meyers, 182 Colo. 21 , 510 P.2d 430 (1973); Alvarez v. District Court, 186 Colo. 37 , 525 P.2d 1131 (1974); Cervi v. Russell, 31 Colo. App. 525 , 506 P.2d 748 (1972); People v. Marques, 184 Colo. 262 , 520 P.2d 113 , (1974).

1975E. g., Frohlick Crane Services, Inc., v. Mack, 182 Colo. 34 , 510 P.2d 891 (1973); People v. Meyers, 182 Colo. 21 , 510 P.2d 430 (1973); Alvarez v. District Court, 186 Colo. 37 , 525 P.2d 1131 (1974); Cervi v. Russell, 31 Colo. App. 525 , 506 P.2d 748 (1972); People v. Marques, 184 Colo. 262 , 520 P.2d 113 , (1974).

1975E. g., Frohlick Crane Services, Inc., v. Mack, 182 Colo. 34 , 510 P.2d 891 (1973); People v. Meyers, 182 Colo. 21 , 510 P.2d 430 (1973); Alvarez v. District Court, 186 Colo. 37 , 525 P.2d 1131 (1974); Cervi v. Russell, 31 Colo. App. 525 , 506 P.2d 748 (1972); People v. Marques, 184 Colo. 262 , 520 P.2d 113 , (1974).

1975E. g., Frohlick Crane Services, Inc., v. Mack, 182 Colo. 34 , 510 P.2d 891 (1973); People v. Meyers, 182 Colo. 21 , 510 P.2d 430 (1973); Alvarez v. District Court, 186 Colo. 37 , 525 P.2d 1131 (1974); Cervi v. Russell, 31 Colo. App. 525 , 506 P.2d 748 (1972); People v. Marques, 184 Colo. 262 , 520 P.2d 113 , (1974).

1975E. g., Frohlick Crane Services, Inc., v. Mack, 182 Colo. 34 , 510 P.2d 891 (1973); People v. Meyers, 182 Colo. 21 , 510 P.2d 430 (1973); Alvarez v. District Court, 186 Colo. 37 , 525 P.2d 1131 (1974); Cervi v. Russell, 31 Colo. App. 525 , 506 P.2d 748 (1972); People v. Marques, 184 Colo. 262 , 520 P.2d 113 , (1974).

1975E. g., Frohlick Crane Services, Inc., v. Mack, 182 Colo. 34 , 510 P.2d 891 (1973); People v. Meyers, 182 Colo. 21 , 510 P.2d 430 (1973); Alvarez v. District Court, 186 Colo. 37 , 525 P.2d 1131 (1974); Cervi v. Russell, 31 Colo. App. 525 , 506 P.2d 748 (1972); People v. Marques, 184 Colo. 262 , 520 P.2d 113 , (1974).

1975E. g., Frohlick Crane Services, Inc., v. Mack, 182 Colo. 34 , 510 P.2d 891 (1973); People v. Meyers, 182 Colo. 21 , 510 P.2d 430 (1973); Alvarez v. District Court, 186 Colo. 37 , 525 P.2d 1131 (1974); Cervi v. Russell, 31 Colo. App. 525 , 506 P.2d 748 (1972); People v. Marques, 184 Colo. 262 , 520 P.2d 113 , (1974).

1975E. g., Frohlick Crane Services, Inc., v. Mack, 182 Colo. 34 , 510 P.2d 891 (1973); People v. Meyers, 182 Colo. 21 , 510 P.2d 430 (1973); Alvarez v. District Court, 186 Colo. 37 , 525 P.2d 1131 (1974); Cervi v. Russell, 31 Colo. App. 525 , 506 P.2d 748 (1972); People v. Marques, 184 Colo. 262 , 520 P.2d 113 , (1974).

1975E. g., Frohlick Crane Services, Inc., v. Mack, 182 Colo. 34 , 510 P.2d 891 (1973); People v. Meyers, 182 Colo. 21 , 510 P.2d 430 (1973); Alvarez v. District Court, 186 Colo. 37 , 525 P.2d 1131 (1974); Cervi v. Russell, 31 Colo. App. 525 , 506 P.2d 748 (1972); People v. Marques, 184 Colo. 262 , 520 P.2d 113 , (1974).

1969Such inflexibility is neither practical for dealing with unforeseen exigencies, nor. consonant with justice, In support of our holding that the necessity for a special law is within the legislative discretion, subject to court interference only upon a showing of clear abuse, we adopt the rationale of Mr. Justice Cardozo in Williams v. Mayor and City Council of Baltimore, 289 U.S. 36 , 53 S.Ct. 431 , 77 L.Ed. 1015 : “Time with its tides brings new conditions which must be cared for by new laws. .Sometimes the new conditions affect the members of a class.

1969Such inflexibility is neither practical for dealing with unforeseen exigencies, nor. consonant with justice, In support of our holding that the necessity for a special law is within the legislative discretion, subject to court interference only upon a showing of clear abuse, we adopt the rationale of Mr. Justice Cardozo in Williams v. Mayor and City Council of Baltimore, 289 U.S. 36 , 53 S.Ct. 431 , 77 L.Ed. 1015 : “Time with its tides brings new conditions which must be cared for by new laws. .Sometimes the new conditions affect the members of a class.

1963In Houston Lighting and Power Co. v. Jenkins (Tex.), 5 S.W. (2d) 1030 , the court said: “With reference to our duty to raise and consider the constitutionality of the statute involved without its unconstitutionality having been pleaded, and without assignment of error, the rule seems to be settled that where a statute is absolutely void — void as to all persons and for all purposes — and the record shows that such statute furnishes the only basis for the right asserted by one party to the suit and the judgment, and necessarily invades the right of the other party against whom judgment was rend

1963In Houston Lighting and Power Co. v. Jenkins (Tex.Civ.App.), 5 S.W.2d 1030 , the court said: "With reference to our duty to raise and consider the constitutionality of the statute involved without its unconstitutionality having been pleaded, and without assignment of error, the rule seems to be settled that where a statute is absolutely void—void as to all persons and for all purposes—and the record shows that such statute furnishes the only basis for the right asserted by one party to the suit and the judgment, and necessarily invades the right of the other party against whom judgment was ren

1960Wilmore v. Annear, 100 Colo. 106 , 65 P.2d 1433 .

1960Wilmore v. Annear, 100 Colo. 106 , 65 P.2d 1433 .

1960Bradley v. Fox, 7 Ill.2d 106, 111 , 129 N.E.2d 699 ; Nudd v. Matsoukas, 7 Ill.2d 608, 615 , 131 N.E.2d 525 ; Amann v. Faidy, 415 Ill. 422 , 114 N.E.2d 412 .

1960Bradley v. Fox, 7 Ill.2d 106, 111 , 129 N.E.2d 699 ; Nudd v. Matsoukas, 7 Ill.2d 608, 615 , 131 N.E.2d 525 ; Amann v. Faidy, 415 Ill. 422 , 114 N.E.2d 412 .

1960Bradley v. Fox, 7 Ill.2d 106, 111 , 129 N.E.2d 699 ; Nudd v. Matsoukas, 7 Ill.2d 608, 615 , 131 N.E.2d 525 ; Amann v. Faidy, 415 Ill. 422 , 114 N.E.2d 412 .

1960Bradley v. Fox, 7 Ill.2d 106, 111 , 129 N.E.2d 699 ; Nudd v. Matsoukas, 7 Ill.2d 608, 615 , 131 N.E.2d 525 ; Amann v. Faidy, 415 Ill. 422 , 114 N.E.2d 412 .

1960Bradley v. Fox, 7 Ill.2d 106, 111 , 129 N.E.2d 699 ; Nudd v. Matsoukas, 7 Ill.2d 608, 615 , 131 N.E.2d 525 ; Amann v. Faidy, 415 Ill. 422 , 114 N.E.2d 412 .

1960Bradley v. Fox, 7 Ill. (2d) 106, 111, 129 N.E. (2d) 699; Nudd v. Matsoukas, 7 Ill. (2d) 608, 615, 131 N.E. (2d) 525; Amann v. Fardy, 415 Ill. 422 , 114 N.E. (2d) 412.

1948If, 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 . [8] 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 .

1948If, 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 . [8] 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 .

1948City Bank of Leadville v. Tucker, 7 Colo. 220 , 3 Pac. 217 ; Garfield County v. Leonard, 26 Colo. 145 , 57 Pac. 693 ; Mitchell v. Wheeler, 20 Colo. App. 159 , 77 Pac. 361 ; McGovern v. City and County of Denver, 54 Colo. 411 , 131 Pac. 273 .

1948City Bank of Leadville v. Tucker, 7 Colo. 220 , 3 Pac. 217 ; Garfield County v. Leonard, 26 Colo. 145 , 57 Pac. 693 ; Mitchell v. Wheeler, 20 Colo. App. 159 , 77 Pac. 361 ; McGovern v. City and County of Denver, 54 Colo. 411 , 131 Pac. 273 .

1948City Bank of Leadville v. Tucker, 7 Colo. 220 , 3 Pac. 217 ; Garfield County v. Leonard, 26 Colo. 145 , 57 Pac. 693 ; Mitchell v. Wheeler, 20 Colo. App. 159 , 77 Pac. 361 ; McGovern v. City and County of Denver, 54 Colo. 411 , 131 Pac. 273 .

1948City Bank of Leadville v. Tucker, 7 Colo. 220 , 3 Pac. 217 ; Garfield County v. Leonard, 26 Colo. 145 , 57 Pac. 693 ; Mitchell v. Wheeler, 20 Colo. App. 159 , 77 Pac. 361 ; McGovern v. City and County of Denver, 54 Colo. 411 , 131 Pac. 273 .

1933After all, the test is: What would an ordinarily prudent person have done under the circumstances as they then appeared to exist?” And we said (p. 139): “Having in view all of these circumstances and others which might be mentioned and that seldom, if ever, two accidents involve identical facts, it seems to us that it would be illogical and unwise to -establish the inflexible rule of contributory negligence here contended for.” See, also, Arps v. City & County of Denver, 82 Colo. 189 , 257 Pac. 1094 .

1933After all, the test is: What would an ordinarily prudent person have done under the circumstances as they then appeared to exist?” And we said (p. 139): “Having in view all of these circumstances and others which might be mentioned and that seldom, if ever, two accidents involve identical facts, it seems to us that it would be illogical and unwise to -establish the inflexible rule of contributory negligence here contended for.” See, also, Arps v. City & County of Denver, 82 Colo. 189 , 257 Pac. 1094 .